Marcus Moore v. R. Schlichting

NOT FOR PUBLICATION FILED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