Song v. Ignacio

Full title: Samuel SONG, Plaintiff-Appellant, v. John IGNACIO, Warden of the Nevada…

Court: United States Court of Appeals, Ninth Circuit

Date published: Apr 19, 2000

216 F.3d 1084 (9th Cir. 2000)

Opinion

216 F.3d 1084 (9th Cir. 2000) Samuel SONG, Plaintiff-Appellant, v. John IGNACIO, Warden of the Nevada State Prison, Richard Mobley, Former Prison Guard at the Nevada State Prison, Craig Farwell, Caseworker Specialist-III at the Nevada State Prison, Carol E. Ployhar, Caseworker Specialist-II at the Nevada State Prison, C/O Baker, Prison Guard at the Nevada State Prison, Clyde Aguirre, Correctional Sergeant at the Nevada State Prison, John & Jane Does, I--XX, each sued in their individual and official capacities, Defendants-Appellees. No. 96-16228. United States Court of Appeals, Ninth Circuit April 19, 2000

Submitted April 10, 2000. ²

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

D.C. No. CV-92-00023-HDM

Editorial Note:

This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)

Appeal from the United States District Court for the District of Nevada, Howard D. McKibben, District Judge, Presiding.

Before TASHIMA and GRABER, Circuit Judges, and KELLEHER, ³ Senior District Judge.

3 The Honorable Robert J. Kelleher, Senior United States District Judge for the Central District of California, sitting by designation.

MEMORANDUM ¹

1 This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.

The district court did not abuse its discretion in denying Plaintiff's motion to strike the Montgomery affidavit. See Herring v. Delta Air Lines, Inc., 894 F.2d 1020, 1021 (9th Cir.1989). The affidavit was both notarized and signed under penalty of perjury. See Fed.R.Civ.P. 56(e); 28 U.S.C. § 1746. Plaintiff also contends that the district court erred in relying on affidavits that were not based on personal knowledge. However, the relevant portions of the affidavits were based on personal knowledge and, as to the remainder, Plaintiff has not shown prejudice. See Maffei v. Northern Ins. Co., 12 F.3d 892, 897 (9th Cir.1993).

There was no genuine issue of material fact for trial on Plaintiff's claims under 42 U.S.C. § 1983. He submitted no evidence that he made, attempted to make, or was discouraged from making a "legal business" telephone call during the very brief period during which the Warden ordered him to speak English while conducting such calls. ⁴ Accordingly, assuming that the Warden's statement concerning the use of English amounted to the announcement of an unlawful policy, Plaintiff has failed to create a genuine issue of material fact that the policy ever was applied to him. See Resnick v. Hayes, 200 F.3d 641, 647 (9th Cir.2000).

4 Plaintiff's October 19, 1991, telephone call to his brother could not have been terminated under the alleged "policy," because the Warden did not make his prospective statement concerning the use of English until November 6, 1991.

Plaintiff received all the process that was due him in connection with the disciplinary hearing at which he was verbally reprimanded and ordered to pay restitution of $2.50. Plaintiff signed and received a copy of the Notice of Charges detailing the factual basis for the charge against him and also signed and read the Summary of the Hearing Officer's Investigation, which listed the precise regulation at issue, three weeks before his hearing. In addition, the report of the maintenance department stating the value of the damaged property comprises sufficient evidence to support the restitution ordered.

The judgment of the district court is AFFIRMED.