NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLIAM M. SMITH, 

Plaintiff-Appellant, 

 v. 

DAVE G. POWELL, Individually and in his 

official capacity as a Hearings Officer at 

Eastern Oregon Correctional Institution, 

Defendant-Appellee.

No. 16-35305 

D.C. No. 2:14-cv-01725-SB 

MEMORANDUM*

Appeal from the United States District Court

for the District of Oregon

Anna J. Brown, District Judge, Presiding

Submitted June 26, 2017**

Before: PAEZ, BEA, and MURGUIA, Circuit Judges. 

Oregon state prisoner William M. Smith appeals pro se from the district 

court’s summary judgment in his 42 U.S.C. § 1983 action alleging various 

constitutional violations. We have jurisdiction under 28 U.S.C. § 1291. We 

 

* 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

JUL 6 2017

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 16-35305 

review de novo. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004). We 

affirm.

The district court properly granted summary judgment on Smith’s free 

speech claim because Smith failed to raise a genuine dispute of material fact as to 

whether the regulation of his outgoing mail did not further a substantial 

governmental interest. See Procunier v. Martinez, 416 U.S. 396, 413-14 (1974) 

(setting forth factors for evaluating the constitutionality of regulating prisoner 

correspondence). 

The district court properly granted summary judgment on Smith’s retaliation 

claim because Smith failed to raise a genuine dispute of material fact as to whether

defendant Powell acted with a retaliatory motive. See Rhodes v. Robinson, 408 F. 

3d 559, 567-68 (9th Cir. 2005) (setting forth elements of a retaliation claim in the 

prison context); see also Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009) 

(“To prevail on a retaliation claim, a plaintiff must show that his protected conduct 

was the ‘substantial’ or ‘motivating’ factor behind the defendant’s conduct.”) 

(citation and internal quotation marks omitted)). 

The district court properly granted summary judgment on Smith’s due 

process claim regarding his disciplinary hearing and sanction because Smith failed 
3 16-35305 

to raise a genuine dispute of material fact as to whether he was deprived of a

protected liberty interest. See Sandin v. Conner, 515 U.S. 472, 483-85 (1995) (a 

constitutionally protected liberty interest arises only when a restraint imposes an

“atypical and significant hardship on the inmate in relation to the ordinary 

incidents of prison life”); Superintendent v. Hill, 472 US. 445, 455 (1985) 

(requirements of due process are satisfied if “some evidence” supports disciplinary 

decision); Wolff v. McDonell, 418 U.S. 539, 563-71 (1974) (setting forth due 

process requirements for prison disciplinary proceedings). 

The district court did not abuse its discretion in denying Smith’s Fed. R. Civ. 

P. 56(d) motion because Smith failed to show that the discovery he requested 

would have precluded summary judgment. See Getz v. Boeing Co., 654 F.3d 852, 

867-68 (9th Cir. 2011) (setting forth standard of review and explaining that a 

plaintiff must show that the discovery sought would have precluded summary 

judgment).

We do not consider arguments and allegations raised for the first time on 

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.