Tony Asberry v. Phelps , 586 F. App'x 403 ( 2014 )

FILED
NOT FOR PUBLICATION DEC 04 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TONY ASBERRY, No. 13-16899
Plaintiff - Appellant, D.C. No. 2:09-cv-01494-MCE-
KJN
v.
PHELPS, MEMORANDUM*
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., Chief Judge, Presiding
Submitted November 18, 2014**
Before: LEAVY, FISHER, and N.R. SMITH, Circuit Judges.
California state prisoner Tony Asberry appeals pro se from the district
court’s summary judgment in his 42 U.S.C. § 1983 action alleging violations of his
right to equal protection under the Fourteenth Amendment in connection with his
prison housing assignments. We have jurisdiction under 28 U.S.C. § 1291. We
*
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).
review de novo, FDIC v. Henderson, 940 F.2d 465, 471 (1991), and we affirm.
The district court properly granted summary judgment because Asberry
failed to raise a genuine dispute of material fact as to whether defendant
intentionally discriminated against him on the basis of race. See Barren v.
Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order) (a § 1983 equal protection
claim requires showing that the defendant “acted with an intent or purpose to
discriminate against the plaintiff based upon membership in a protected class”); see
also Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1061 (9th
Cir. 2011) (“To survive summary judgment, a plaintiff must set forth
non-speculative evidence of specific facts, not sweeping conclusory allegations.”).
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)
(per curiam).
Defendant’s unopposed motion to supplement the record, filed on June 9,
2014, is granted.
AFFIRMED.
2 13-16899