NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LOUIS J. AGUIRRE, 

Plaintiff-Appellant, 

 v. 

CLARK E. DUCART, Warden; JEFFREY 

A. BEARD; SCOTT KERNAN; CONNIE 

GIPSON, Warden, 

Defendants-Appellees, 

S. BURRIS; J. FRISK, 

Defendants-Appellees, 

and 

D. WILCOX; D. WELLS, 

Defendants.

No. 21-15269 

D.C. No. 4:17-cv-06898-YGR 

MEMORANDUM*

Appeal from the United States District Court

for the Northern District of California

Yvonne Gonzalez Rogers, District Judge, Presiding

Submitted July 27, 2022**

* 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 29 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

San Francisco, California

Before: GRABER and OWENS, Circuit Judges, and BAKER,***International 

Trade Judge.

Plaintiff-Appellant Louis Aguirre, a former inmate within the California 

Department of Corrections and Rehabilitation, appeals from the district court’s 

order granting summary judgment to Defendants-Appellees Clark E. Ducart, S. 

Burris, and J. Frisk. As the parties are familiar with the facts, we do not recount 

them here. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

1. Aguirre does not meaningfully challenge the district court’s resolution 

of his primary due process claims on collateral estoppel grounds or on the merits. 

He has therefore waived review of this issue. See United States v. Kama, 394 F.3d 

1236, 1238 (9th Cir. 2005) (“Generally, an issue is waived when the appellant does 

not specifically and distinctly argue the issue in his or her opening brief.”). Indeed, 

Aguirre noted in his reply brief that Defendants-Appellees’ brief focused on these 

issues even though he did not challenge them on appeal. 

2. Aguirre challenges the district court’s dismissal of his “meaningful 

periodic review” claim as beyond the scope of the Second Amended Complaint 

(“SAC”). He argues that he properly pled such a claim and cites the SAC at length 

to illustrate his point. However, the majority of those citations refer to his primary 

*** The Honorable M. Miller Baker, Judge for the United States Court of 

International Trade, sitting by designation.
3 

due process claim about the alleged errors in his Six-Year Review and Gang 

Revalidation—a claim that the district court resolved on the merits and that

Aguirre specifically does not challenge on appeal—and not to any separate 

“meaningful periodic review” claim. If any allegations in the SAC could support a 

separate “meaningful periodic review” claim, they do not “give the defendant[s]

fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” 

Pickern v. Pier 1 Imports (U.S.), Inc., 457 F.3d 963, 968 (9th Cir. 2006) (quoting 

Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002)).

Aguirre argues that, even if his claim was not properly pled, the district court 

should have construed his opposition to summary judgment “as a request pursuant 

to rule 15(b) of the Federal Rules of Civil Procedure to amend the pleadings out of 

time.” Desertrain v. City of Los Angeles, 754 F.3d 1147, 1154 (9th Cir. 2014) 

(citation omitted). We disagree. The liberal amendment policy underlying 

Desertrain is not applicable where, as here, a scheduling order prohibits future 

amendment without a “showing of good cause.” See DRK Photo v. McGraw-Hill 

Glob. Educ. Holdings, LLC, 870 F.3d 978, 989 (9th Cir. 2017); see also Navajo 

Nation v. U.S. Forest Serv., 535 F.3d 1058, 1080 (9th Cir. 2008) (en banc)

(holding that “summary judgment is not a procedural second chance to flesh out 

inadequate pleadings” (citation omitted)).

3. Aguirre next argues that the district court erred in concluding that he 
4 

had not pled any claim or injury tied to the Ashker class action settlement. But the 

SAC contains no allegations of a delayed Ashker review. While the SAC does 

contain allegations about a delayed Six-Year Active/Inactive Review, it contains 

no allegations connecting this alleged error to a delayed Ashker review. And for 

the reasons previously stated, the district court did not err by not construing 

Aguirre’s opposition to summary judgment as a motion to add such a claim to his 

pleadings. See DRK Photo, 870 F.3d at 989.

AFFIRMED.