Johnson v. California Department of Corrections , 615 F. App'x 888 ( 2015 )

FILED
NOT FOR PUBLICATION SEP 02 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
OSHAY JOHNSON, No. 14-16712
Plaintiff - Appellant, D.C. No. 2:13-cv-01730-KJM-
KJN
v.
CALIFORNIA DEPARTMENT OF MEMORANDUM*
CORRECTIONS AND
REHABILITATION; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding
Submitted August 25, 2015**
Before: McKEOWN, CLIFTON, and HURWITZ, Circuit Judges.
Oshay Johnson, a California state prisoner, appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging that he has been
denied treatment for antisocial personality disorder (“ASPD”) and that his ASPD
*
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).
diagnosis should not be used as a basis to deny him parole. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo a dismissal under 28 U.S.C. § 1915A,
Hamilton v. Brown, 630 F.3d 889, 892-893 (9th Cir. 2011), and we affirm.
The district court properly dismissed Johnson’s Eighth Amendment claim
regarding treatment for ASPD because Johnson failed to allege facts sufficient to
show that defendants were deliberately indifferent to his serious medical needs.
See Farmer v. Brennan, 511 U.S. 825, 837 (1994) (a prison official is deliberately
indifferent only if he or she “knows of and disregards an excessive risk to inmate
health”).
The district court properly dismissed Johnson’s claim regarding the right to
treatment in order to obtain parole and his claim regarding the future use of a 2009
psychological evaluation because Johnson failed to allege facts sufficient to state
cognizable claims. See Swarthout v. Cooke, 562 U.S. 216, 219, 222 (2011) (per
curiam) (setting forth the elements of a procedural due process claim and
explaining that with regard to California’s parole scheme, “the only federal right at
issue is procedural”); Rizzo v. Dawson, 778 F.2d 527, 531 (9th Cir. 1985)
(prisoners have no constitutional right to rehabilitation).
To the extent that Johnson makes arguments regarding an equal protection
claim, we do not consider them because Johnson failed to raise such a claim in his
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operative second amended complaint. See Turnacliff v. Westly, 546 F.3d 1113,
1120 (9th Cir. 2008).
We do not consider Johnson’s contentions regarding statements made in the
findings and recommendations, filed on December 20, 2013, because the order has
been vacated.
AFFIRMED.
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