Marcus Moore v. R. Schlichting ( 2022 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 26 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARCUS J. MOORE, No. 21-16229
Plaintiff-Appellant, D.C. No. 1:20-cv-01672-DAD-EPG
v.
R. SCHLICHTING, C/O at Sierra MEMORANDUM*
Conservation Center,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Dale A. Drozd, District Judge, Presiding
Submitted May 17, 2022**
Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges.
California state prisoner Marcus J. Moore appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging sexual assault,
sexual harassment, and violation of his right to due process by prison officials. We
have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court's
*
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).
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 Moore’s Eighth Amendment claims
because Moore failed to allege facts sufficient to state a plausible claim. See
Bearchild v. Cobban, 947 F.3d 1130, 1144-45 (9th Cir. 2020) (setting forth the
elements for a claim of sexual assault by a correctional officer); Austin v. Terhune,
367 F.3d 1167, 1172 (9th Cir. 2004) (concluding that sexual gesturing from a
control booth was not sufficiently serious to constitute an Eighth Amendment
violation); see also Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (although
pro se pleadings are liberally construed, a plaintiff must allege facts sufficient to
state a plausible claim).
The district court properly dismissed Moore’s due process claim arising
from a prison disciplinary hearing where his good-time credits were forfeited
because it is not cognizable as a § 1983 claim. See Edwards v. Balisok, 520 U.S.
641, 646-48 (1997) (holding that a claim for monetary and declaratory relief
challenging the validity of procedures used to deprive a prisoner of good-time
credits is not cognizable under § 1983).
Moore’s motion for appointment of counsel (Docket Entry No. 5) is denied.
AFFIRMED.
2 21-16229