NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FOX JOSEPH SALERNO, 

Plaintiff-Appellant, 

 v. 

JERRY DUNN; et al., 

Defendants-Appellees.

No. 16-17336 

D.C. No. 2:13-cv-02250-ROS 

MEMORANDUM*

Appeal from the United States District Court

for the District of Arizona

Roslyn O. Silver, District Judge, Presiding

Submitted March 27, 2019**

Before: WALLACE, FARRIS, and TROTT, Circuit Judges. 

Arizona state prisoner Fox Joseph Salerno appeals pro se from the district 

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

claims arising from his placement in solitary confinement. We have jurisdiction 

under 28 U.S.C. § 1291. We review de novo. Porter v. Cal. Dep’t of Corr., 419 

 

* 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

MAR 29 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 16-17336 

F.3d 885, 891 (9th Cir. 2005). We affirm.

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

process claim because Salerno failed to raise a genuine dispute of material fact as 

to whether his designation as a maximum security inmate and resulting placement 

or maintenance in solitary confinement was not supported by “some evidence.” 

See Toussaint v. McCarthy, 801 F.2d 1080, 1104 (9th Cir. 1986) (segregation 

decisions, such as putting a prisoner into solitary confinement, only need to be 

supported by “some evidence”). Even though Salerno argues that the prison 

officials improperly considered his suspected gang member status in designating 

him as a maximum security inmate, he failed to raise a genuine dispute of material 

fact as to whether he would have not been classified as a maximum security inmate 

and placed in solitary confinement based on factors other than his suspected gang 

member designation. 

The district court properly granted summary judgment on Salerno’s claim

that prison policies designating inmates suspected gang members violated 

Salerno’s due process rights because Salerno failed to identify a protected liberty 

interest implicated by these policies. See Sandin v. Conner, 515 U.S. 472, 483-85

(1995) (a prisoner has no protected liberty interest when the sanction imposed 

neither extends the length of his sentence nor imposes an “atypical and significant 

hardship”); Serrano v. Francis, 345 F.3d 1071, 1077-78 (9th Cir. 2003) (due 
3 16-17336 

process procedural protections “adhere only when the disciplinary action 

implicates a protected liberty interest”). 

The district court properly focused the scope of this action on two 

classification decisions in 2009. Salerno alleged generally in the operative first 

amended complaint that his suspected gang member designation resulted in him 

being classified to and maintained in maximum security status for five years. In 

response to the district court’s order requesting clarification regarding the scope of 

the action in preparation for trial, Salerno identified several orders over the course 

of five years which he contended took into account his suspected gang member 

status in maintaining his maximum security status. On the premise that Salerno 

only alleged that he was labelled a suspected gang member in retaliation for a 

protected activity that took place in 2009, the district court correctly ruled that only 

two orders from 2009 formed the basis for Salerno’s action. 

The district court did not abuse its discretion by vacating trial after it 

determined that the only issues before the court were issues of law. See City of Los 

Angeles, Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882, 885 (9th Cir. 

2001) (district court “possesses the inherent procedural power to reconsider, 

rescind, or modify an interlocutory order for cause seen by it to be sufficient” 

(citation omitted)); see also Switz. Cheese Ass’n, Inc. v. E. Horne’s Mkt., Inc., 385 

U.S. 23, 25 (1966) (“[T]he denial of a motion for a summary judgment because of 
4 16-17336 

unresolved issues of fact does not settle or even tentatively decide anything about 

the merits of the claim. It is strictly a pretrial order that decides only one thing—

that the case should go to trial”). Salerno’s allegations that the district court 

“claimed to have been confused about the nature of the case” is untrue. The 

tortured journey of this case was caused entirely by Salerno’s constantly changing 

claims and theories.

We do not consider matters not specifically and distinctly raised and argued 

in the opening brief, or 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.