GERALD DEAN de CRUZ v. A. PANIZZA, Correctional Officer

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GERALD DEAN de CRUZ,

Plaintiff-Appellant,

v.

A. PANIZZA, Correctional Officer,

Defendant-Appellee.

No. 18-15533

D.C. No. 3:15-cv-01930-WHA

MEMORANDUM
*

Appeal from the United States District Court
for the Northern District of California
William Alsup, District Judge, Presiding

Submitted April 7, 2020
**

Before: TASHIMA, BYBEE, and WATFORD, Circuit Judges.

California state prisoner Gerald Dean de Cruz appeals pro se from the
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging a Sixth
Amendment claim. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo. Furnace v. Sullivan, 705 F.3d 1021, 1026 (9th Cir. 2013) (district court’s

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED

APR 13 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

2 18-15533
qualified immunity determinations); Guatay v. Christian Fellowship v. County of
San Diego, 670 F.3d 957, 970 (9th Cir. 2011) (district court’s decision on cross-
motions for summary judgment). We affirm.
The district court properly granted summary judgment for defendant Panizza
on the basis of qualified immunity because it would not have been clear to every
reasonable prison official in 2015 that inspecting, outside of de Cruz’s presence, a
stored box containing de Cruz’s legal materials was unlawful under the
circumstances. See Mullenix v. Luna, 136 S. Ct. 305, 308 (2015) (per curiam)
(discussing qualified immunity and explaining that a “clearly established right is
one that is sufficiently clear that every reasonable official would have understood
that what he is doing violates that right” and “existing precedent must have placed
the statutory or constitutional question beyond debate” (citations and internal
quotation marks omitted)); Nordstrom v. Ryan, 762 F.3d 903, 906, 910-911 (9th
Cir. 2014) (holding that reading a prisoner’s legal mail violates his Sixth
Amendment rights); see also Mangiaracina v. Penzone, 849 F.3d 1191, 1196 (9th
Cir. 2017) (“We . . . now clarify that, under Nordstrom, prisoners have a Sixth
Amendment right to be present when legal mail related to a criminal matter is
inspected.”).
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3 18-15533
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.