Marlon Blacher v. B. Dieball , 700 F. App'x 744 ( 2017 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 2 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARLON BLACHER, No. 16-56667
Plaintiff-Appellant, D.C. No. 2:14-cv-07985-GW-AGR
v.
MEMORANDUM*
B. DIEBALL, Correctional Sergeant,
individually and in his official capacity;
ELVIN VALENZUELA, Warden,
individually and in his official capacity,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Submitted October 23, 2017**
Before: LEAVY, WATFORD, and FRIEDLAND, Circuit Judges.
Marlon Blacher, a California state prisoner, appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging constitutional
violations related to an administrative rule violation. We have jurisdiction under
*
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).
28 U.S.C. § 1291. We review de novo a dismissal under Federal Rule of Civil
Procedure 12(b)(6). Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010). We may
affirm on any basis supported by the record. Enlow v. Salem-Keizer Yellow Cab
Co., 389 F.3d 802, 811 (9th Cir. 2004). We affirm.
The district court properly dismissed Blacher’s due process claim against
defendant Dieball because Blacher failed to allege facts sufficient to show a
protected liberty interest or “atypical and significant hardship.” 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 on the inmate in relation to the ordinary
incidents of prison life”); Serrano v. Francis, 345 F.3d 1071, 1077-78 (9th Cir.
2003) (due process procedural protections “adhere only when the disciplinary
action implicates a protected liberty interest”).
Dismissal of Blacher’s First Amendment retaliation claim was proper
because Blacher failed to allege facts sufficient to show that Dieball’s actions did
not advance legitimate goals of the correctional institution. See Watison v. Carter,
668 F.3d 1108, 1114 (9th Cir. 2012) (setting forth elements of a First Amendment
retaliation claim in the prison context).
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The district court properly dismissed Blacher’s Eighth Amendment claim
because Blacher failed to allege facts sufficient to show that Dieball acted with
deliberate indifference to a substantial risk of serious harm. See Farmer v.
Brennan, 511 U.S. 825, 837 (1994) (a prison official is deliberately indifferent
only if he “knows of and disregards an excessive risk to inmate health or safety”).
The district court properly dismissed Blacher’s equal protection claim
because Blacher failed to allege facts sufficient to show that Dieball discriminated
against him based on his race. See Hartmann v. Cal. Dep’t of Corrs. & Rehab.,
707 F.3d 1114, 1123 (9th Cir. 2013) (“To prevail on an Equal Protection claim
brought under § 1983, [plaintiff] must allege facts plausibly showing that the
defendants acted with an intent or purpose to discriminate against [him] based
upon membership in a protected class.” (citations and internal quotation marks
omitted)).
The district court properly dismissed Blacher’s due process claim against
defendant Valenzuela because Blacher failed to allege facts sufficient to show a
protected liberty interest. See Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir.
2003) (“[I]nmates lack a separate constitutional entitlement to a specific prison
grievance procedure.”).
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Dismissal of Blacher’s “conflict of interests” claim was proper because
Blacher failed to allege facts sufficient to state any plausible claim for relief. See
Hebbe, 627 F.3d at 341-42 (although pro se pleadings are liberally construed, a
plaintiff must allege facts sufficient to state a plausible claim).
The district court properly dismissed Blacher’s claim that the punishment
constituted double jeopardy. See United States v. Brown, 59 F.3d 102, 104
(explaining that double jeopardy does not attach to prison disciplinary
proceedings).
The district court properly dismissed Blacher’s claim that the punishment
constituted slavery or involuntary servitude. See Draper v. Rhay, 315 F.2d 193,
197 (9th Cir. 1963) (“There is no federally protected right of a state prisoner not to
work while imprisoned after conviction.”).
We reject as meritless Blacher’s contentions that the district court failed to
use Blacher’s correct legal name, his habeas petition is protected by copyright, and
defendants were required to respond to his “Affidavit of Corporate Denial.”
We do not consider Blacher’s contentions regarding the district court’s
denial of his various motions because they are not supported by argument. See
Acosta-Huerta v. Estelle, 7 F.3d 139, 144 (9th Cir. 1993).
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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.
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