Curt Wilson v. Liz Ayers

FILED
NOT FOR PUBLICATION MAR 05 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CURT WILSON, No. 10-17008
Plaintiff - Appellant, D.C. No. 2:07-cv-01283-LRH-
LRL
v.
LIZ AYERS; et al., MEMORANDUM *
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted February 21, 2012 **
Before: FERNANDEZ, McKEOWN, and BYBEE, Circuit Judges.
Curt Wilson appeals pro se from the district court’s judgment dismissing his
42 U.S.C. § 1983 action alleging due process and equal protection violations
arising from the denial of his workers’ compensation claim. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo. Romano v. Bible, 169 F.3d 1182,
*
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).
1185 (9th Cir. 1999). We affirm.
The district court properly dismissed Wilson’s claims against defendant
Richins, a Nevada Department of Administration Appeals Officer, in her official
and individual capacities. See Flint v. Dennison, 488 F.3d 816, 824-25 (9th Cir.
2007) (Eleventh Amendment bars damages actions against state officials in their
official capacity); Romano, 169 F.3d at 1186 (absolute immunity extends to state
officials, including those sued in their individual capacity, “when they preside over
hearings . . . or otherwise perform functions analogous to judges”).
The district court properly dismissed Wilson’s due process claims because
Wilson failed to allege facts sufficient to show that defendants acted in a
“conscience shocking” manner, or that Wilson did not receive an adequate
opportunity to be heard. See Brittain v. Hansen, 451 F.3d 982, 998 (9th Cir. 2006)
(“It is not conscience shocking that an officer would act in a non-identical fashion
in cases presenting similar (though not identical) factual circumstances.”); Raditch
v. United States, 929 F.2d 478, 480 (9th Cir. 1991) (procedural due process claim
requires showing a lack of notice and an opportunity to be heard).
The district court properly dismissed Wilson’s equal protection claim
because Wilson failed to allege facts sufficient to support his claim. See Monteiro
v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1026 (9th Cir. 1998) (equal
2 10-17008
protection claim “must plead intentional unlawful discrimination or allege facts
that are at least susceptible of an inference of discriminatory intent”); see also
Aschcroft v. Iqbal, 129 S. Ct. 1937, 1948, 1951-52, 1954 (2009) (for purposeful
discrimination, a plaintiff must plead sufficient facts to give rise to a plausible
inference that a decisionmaker undertook a course of action because of, not merely
in spite of, the action’s adverse effects upon an identifiable group).
Wilson’s remaining contentions, including those regarding the rebuttable
presumption in Nevada Revised Statutes § 617.453(5), are unpersuasive.
AFFIRMED.
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