LEOPOLDO CARDENAS V. ELDON VAIL, No. 11-35175 (9th Cir. 2012)

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FILED SEP 21 2012 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT LEOPOLDO CARDENAS, Plaintiff - Appellant, No. 11-35175 D.C. No. 3:09-cv-05602-RJB v. MEMORANDUM * ELDON VAIL, Secretary; et al., Defendants - Appellees. Appeal from the United States District Court for the Western District of Washington Robert J. Bryan, District Judge, Presiding Submitted September 10, 2012 ** Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges. Leopoldo Cardenas, a Washington state prisoner, appeals pro se from the district court s summary judgment in his 42 U.S.C. § 1983 action alleging violations of his First and Fourteenth Amendment rights. We have jurisdiction * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). under 28 U.S.C. § 1291. We review de novo. Valdez v. Rosenbaum, 302 F.3d 1039, 1043 (9th Cir. 2002). We affirm. The district court properly granted summary judgment on Cardenas s due process claim because Cardenas had an adequate post-deprivation remedy under Washington state law. See Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam) ( [A] negligent or intentional deprivation of a prisoner s property fails to state a claim under section 1983 if the state has an adequate post deprivation remedy. ); see also Wash. Rev. Code §§ 72.02.045(3), 4.92.090. The district court properly granted summary judgment on Cardenas s First Amendment claim because Cardenas failed to raise a genuine dispute of material fact as to whether the prison s mail handling policies were reasonably related to legitimate penological interests. See Turner v. Safley, 482 U.S. 78, 89-91 (1987) (discussing factors for determining whether regulation that impinges on First Amendment rights is reasonably related to legitimate penological interests). The district court properly granted summary judgment on Cardenas s retaliation claim because Cardenas failed to raise a genuine dispute as to whether defendants alleged harassment was because of his engagement in protected activity. Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005) (to establish 2 11-35175 retaliation, prisoner must demonstrate that the adverse action was taken because of the prisoner s protected activity). Contrary to Cardenas s contention, the magistrate judge did not lack authority to issue recommendations on the summary judgment motions. See 28 U.S.C. § 636(b)(1). AFFIRMED. 3 11-35175

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