Andrew Andersen v. Scott Kernan ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS AUG 23 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANDREW ANDERSEN, No. 18-15254
Plaintiff-Appellant, D.C. No. 1:16-cv-00369-LJO-BAM
v.
MEMORANDUM*
SCOTT KERNAN, Secretary of the
California Department of Corrections and
Rehabilitation,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O'Neill, Chief Judge, Presiding
Submitted August 15, 2018**
Before: FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.
California state prisoner Andrew Andersen appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action challenging California
Department of Corrections and Rehabilitation’s parole criteria and resources. 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).
have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s
dismissal under 28 U.S.C. § 1915A. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.
2000). We affirm.
The district court properly dismissed Andersen’s procedural due process
claim because Andersen failed to allege facts sufficient to show that a protected
liberty interest was implicated or that he was denied an opportunity to be heard and
to receive a statement of the reasons for the denial of parole. See Swarthout v.
Cooke, 562 U.S. 216, 219-20 (2011) (in parole context, due process requires only
that prisoner be provided with an opportunity to be heard and a statement of the
reasons why parole was denied); Greenholtz v. Inmates of Neb. Penal & Corr.
Complex, 442 U.S. 1, 7 (1979) (no constitutional right to parole).
The district court properly dismissed Andersen’s substantive due process
claim because Andersen failed to allege facts sufficient to show that defendant’s
alleged conduct was arbitrary or shocks the conscience. See County of Sacramento
v. Lewis, 523 U.S. 833, 846-47 (1998) (substantive due process claim requires
conduct that is arbitrary or shocks the conscience).
The district court properly dismissed Andersen’s equal protection claim
because Andersen failed to allege facts sufficient to show that the alleged
classification is not rationally related to legitimate state interests. See United
States v. Juvenile Male, 670 F.3d 999, 1009 (9th Cir. 2012) (government actions
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that do not involve suspect classifications are subject to rational basis review).
The district court properly dismissed Andersen’s Eighth Amendment claim
because Andersen failed to allege facts sufficient to establish that defendant’s
alleged conduct was sufficiently serious. See Farmer v Brennan, 511 U.S. 825,
834 (1994) (alleged deprivation must be, objectively, sufficiently serious to result
in the denial of the minimal civilized measure of life’s necessities).
The district court did not abuse its discretion by denying further leave to
amend because amendment would be futile. See Chappel v. Lab. Corp. of Am.,
232 F.3d 719, 725-26 (9th Cir. 2000) (setting forth standard of review and
explaining that a district court “acts within its discretion to deny leave to amend
when amendment would be futile”); see also Chodos v. West Publ’g Co., 292 F.3d
992, 1003 (9th Cir. 2002) (district court’s discretion is “particularly broad” when it
has already granted a plaintiff leave to amend (citation and internal quotation
marks omitted)).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Andersen’s motion to extend time to pay the docketing and filing fees
(Docket Entry No. 2) is denied as moot.
AFFIRMED.
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