NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DEREK E. GRONQUIST, 

Plaintiff-Appellant, 

 v. 

KELLON CUNNINGHAM; et al., 

Defendants-Appellees.

No. 16-35501 

D.C. No. 4:15-cv-05008-EFS 

MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of Washington

Edward F. Shea, District Judge, Presiding

Submitted September 27, 2018**

Before: TROTT, SILVERMAN, and TALLMAN, Circuit Judges.

Washington state prisoner Derek E. Gronquist appeals pro se from the`

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

and state law claims arising from defendants’ rejection of incoming mail and 

responses to his public records requests. We have jurisdiction under 28 U.S.C. § 

 

* 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

OCT 1 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 16-35501

1291. We review de novo. Furnace v. Sullivan, 705 F.3d 1021, 1026 (9th Cir. 

2013). We affirm.

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

brought under the Washington Public Records Act (“PRA”). The defendants 

submitted a declaration and reliable, reasonably detailed evidence showing that 

they conducted an adequate search for responsive documents. See Neighborhood 

All. of Spokane Cty. v. Spokane County, 261 P.3d 119, 128 (Wash. 2011) (setting 

forth requirements for demonstrating adequacy of a search for documents under the 

Washington Public Records Act). A PRA search need not be perfect in result, only 

“reasonably calculated to uncover all relevant documents” from “places where they 

are reasonably likely to be found.” Alliance v. Cnty. of Spokane, 172 Wn. 2d 702, 

720 (2011).

 Contrary to Gronquist’s contention, his prior ten-year old state court action

involving different parties and circumstances does not preclude litigation of the 

adequacy of defendants’ search in this case. See Matsushita Elec. Indus. Co. v. 

Epstein, 516 U.S. 367, 373–74 (1996) (federal courts apply state law when 

determining whether a prior state court judgment precludes relitigation of an 
3 16-35501

issue); Christensen v. Grant Cty. Hosp. Dist. No. 1, 96 P.3d 957, 960–61 (Wash. 

2004) (setting forth elements of collateral estoppel under Washington law). 

The district court properly granted summary judgment on both Gronquist’s 

facial and as-applied constitutional challenges to the laws and regulations 

governing prison mail because Gronquist failed to raise a genuine dispute of 

material fact as to whether the rejection of his incoming mail was not reasonably 

related to legitimate penological interests. See Turner v. Safley, 482 U.S. 78, 89 

(1987) (a prison regulation that “impinges on inmates’ constitutional rights” is 

valid “if it is reasonably related to legitimate penological interests”); Bahrampour 

v. Lampert, 356 F.3d 969, 975 (9th Cir. 2004) (Turner analysis applies to facial 

overbreadth and vagueness challenges to regulation of prison mail, in addition to 

as-applied challenges). As the district court noted, had he requested this 

information about Kellon Cunningham in a pending lawsuit, he might well have 

been entitled to it pursuant to discovery, but no lawsuit was pending.

The district court properly granted summary judgment on Gronquist’s 

retaliation claim because Gronquist failed to raise a genuine dispute of material 

fact as to whether defendants took any adverse action against him. See Brodheim 

v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009) (elements of a retaliation claim in the 
4 16-35501

prison context). The adverse actions of which he complains involved disciplinary 

actions taken against other inmates, not Gronquist. Also, calling him a “fucking 

rat” although improper does not constitute an “adverse action.” See Oltarzewski v. 

Ruggiero, 830 F.2d 136, 139 (9th Cir. 1987). Neither does his transfer more than a 

year after he filed his initial grievances to a different cell. See also Starr v. Baca, 

652 F.3d 1202, 1207 (9th Cir. 2011) (elements for supervisory liability under 

§ 1983); Gomez v. Vernon, 255 F.3d 1118, 1127 (9th Cir. 2001) (“Department 

administrators are liable in their official capacities only if policy or custom played 

a part in the violation.”).

The district court properly denied Gronquist’s motion to remand because 

defendants’ notice of removal of Gronquist’s action from state to federal court was 

timely. See 28 U.S.C. § 1446(b)(1) (notice of removal must be filed within 30 

days after the receipt by defendant of the initial pleading); Fed. R. Civ. P. 6(a) 

(computation of time); Fed. R. Civ. P. (a)(1)(C) (“[I]f the last day is a Saturday, 

Sunday, or legal holiday, the period continues to run until the end of the next day 

that is not a Saturday, Sunday, or legal holiday.”); Murphy Bros., Inc. v. Emrich v. 

Touche Ross & Co., 846 F.2d 1190, 1194 (9th Cir. 1988) (standard of review).

Because certification was not necessary to resolve the questions of law, the 
5 16-35501

district court did not abuse its discretion in denying Gronquist’s motion to certify 

questions to the Washington Supreme Court. See Wash. Rev. Code Ann. § 

2.60.020; Syngenta Seeds, Inc. v. County of Kauai, 842 F.3d 669, 674 (9th Cir. 

2016) (standard of review); Eckard Brandes, Inc. v. Riley, 338 F.3d 1082, 1087 

(9th Cir. 2003) (decision to certify rests in the sound discretion of the district 

court).

Contrary to Gronquist’s argument that he was denied fair notice of the rules 

and procedures pertaining to summary judgment and an opportunity to be heard, 

the record shows that both the district court and defendants served Gronquist with 

contemporaneous notice of the requirements of summary judgment set forth in 

Rand v. Rowland, 154 F.3d 952, 960-61 (9th Cir. 1998) (en banc). 

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).

We do not consider facts not presented to the district court. See United 

States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) (facts not presented to the district 

court are not part of the record on appeal).

AFFIRMED.