Johnny Osborne, Jr. v. Max Williams

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 19 2011
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
JOHNNY AL OSBORNE, Jr., No. 10-35325
Plaintiff - Appellant, D.C. No. 1:09-cv-01420-PA
v.
MEMORANDUM *
MAX WILLIAMS; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, District Judge, Presiding
Submitted July 12, 2011 **
Before: SCHROEDER, ALARCÓN, and LEAVY, Circuit Judges.
Johnny Al Osborne, Jr., an Oregon state prisoner, appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging various
constitutional violations related to confiscated or destroyed property and
disciplinary hearings. We have jurisdiction under 28 U.S.C. § 1291. We review
*
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).
de novo a dismissal under 28 U.S.C. § 1915(e)(2). Barren v. Harrington, 152 F.3d
1193, 1194 (9th Cir. 1998) (order). We affirm.
The district court properly dismissed Osborne’s claims alleging
unauthorized deprivation of property because Osborne has an adequate post-
deprivation remedy in the form of the Oregon Tort Claims Act. See Hudson v.
Palmer, 468 U.S. 517, 533 (1984) (unauthorized deprivation of property does not
amount to a due process violation when a post-deprivation state remedy is
available); see also Or. Rev. Stat. § 30.260 et seq.
The district court properly dismissed Osborne’s due process claim arising
out of his prison disciplinary hearings because Osborne failed to allege that a
protected liberty or property interest was at stake in the proceedings. See Serrano
v. Francis, 345 F.3d 1071, 1078 (9th Cir. 2003) (due process “adhere[s] only when
the disciplinary action implicates a protected liberty interest in some unexpected
[manner] or imposes an atypical and significant hardship on the inmate in relation
to the ordinary incidents of prison life” (citation and internal quotation marks
omitted)).
The district court did not abuse its discretion in declining to appoint Osborne
counsel because Osborne failed to demonstrate exceptional circumstances. See
Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (“[A] court may under
2 10-35325
exceptional circumstances appoint counsel for indigent civil litigants[.]” (citation
and internal quotation marks omitted)).
We do not consider matters not raised in the opening brief. See Padgett v.
Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
Osborne’s remaining contentions are unpersuasive.
AFFIRMED.
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