Hosea Byrd v. A. Arias , 411 F. App'x 105 ( 2011 )

FILED
NOT FOR PUBLICATION JAN 21 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
HOSEA BYRD, No. 09-55522
Plaintiff - Appellant, D.C. No. 3:08-CV-01459-DMS-
AJB
v.
A. ARIAS; et al., MEMORANDUM *
Defendants - Appellees.
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Submitted January 10, 2011 **
Before: BEEZER, TALLMAN, and CALLAHAN, Circuit Judges.
California state prisoner Hosea Byrd appeals pro se from the district court’s
judgment dismissing his civil rights action, alleging that defendants violated his
Eighth Amendment and Due Process rights by finding him eligible for double
celling. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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. § 1915(e)(2). Huftile v. Miccio-Fonseca, 410 F.3d
1136, 1138 (9th Cir. 2005). We may affirm on any ground supported by the
record. O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1059 (9th Cir. 2007). We
affirm.
The district court properly dismissed Byrd’s Eighth Amendment claim
because Byrd’s second amended complaint failed to allege any facts suggesting
that defendants knew of and disregarded an excessive risk to his safety. See
Farmer v. Brennan, 511 U.S. 825, 837 (1994) (to state an Eighth Amendment
claim for deliberate indifference, “the official must both be aware of facts from
which the inference could be drawn that a substantial risk of serious harm exists,
and he must also draw the inference”).
Byrd failed to allege facts showing that his placement in the Behavior
Modification Unit resulted in a “significant hardship on the inmate in relation to
the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995).
Accordingly, this claim was properly dismissed.
Byrd’s appeal of the denial of his motion for injunctive relief is moot. See
Mt. Graham Red Squirrel v. Madigan, 954 F.2d 1441, 1450 (9th Cir. 1992) (when
underlying claims have been decided, the reversal of a denial of preliminary
injunction would have no practical consequences, and the issue is therefore moot);
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Sec. & Exch. Comm. v. Mt. Vernon Mem’l Park, 664 F.2d 1358, 1361 (9th Cir.
1982) (futile to review a district court’s action on a petition for preliminary relief
where the district court has already issued a decision on the merits).
We do not consider arguments and allegations raised for the first time on
appeal. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
AFFIRMED.
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