Andrew Andersen v. Scott Kernan

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 23, 2018
• Docket: 18-15254
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS AUG 23 2018 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ANDREW ANDERSEN, No. 18-15254

Plaintiff-Appellant, D.C. No. 1:16-cv-00369-LJO-BAM

v. MEMORANDUM* SCOTT KERNAN, Secretary of the California Department of Corrections and Rehabilitation,

Defendant-Appellee.

Appeal from the United States District Court for the Eastern District of California Lawrence J. O'Neill, Chief Judge, Presiding

Submitted August 15, 2018**

Before: FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.

California state prisoner Andrew Andersen appeals pro se from the district

court’s judgment dismissing his 42 U.S.C. § 1983 action challenging California

Department of Corrections and Rehabilitation’s parole criteria and resources. We

* 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). have jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s

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 Andersen’s procedural due process

claim because Andersen failed to allege facts sufficient to show that a protected

liberty interest was implicated or that he was denied an opportunity to be heard and

to receive a statement of the reasons for the denial of parole. See Swarthout v.

Cooke, 562 U.S. 216, 219-20 (2011) (in parole context, due process requires only

that prisoner be provided with an opportunity to be heard and a statement of the

reasons why parole was denied); Greenholtz v. Inmates of Neb. Penal & Corr.

Complex, 442 U.S. 1, 7 (1979) (no constitutional right to parole).

The district court properly dismissed Andersen’s substantive due process

claim because Andersen failed to allege facts sufficient to show that defendant’s

alleged conduct was arbitrary or shocks the conscience. See County of Sacramento

v. Lewis, 523 U.S. 833, 846-47 (1998) (substantive due process claim requires

conduct that is arbitrary or shocks the conscience).

The district court properly dismissed Andersen’s equal protection claim

because Andersen failed to allege facts sufficient to show that the alleged

classification is not rationally related to legitimate state interests. See United

States v. Juvenile Male, 670 F.3d 999, 1009 (9th Cir. 2012) (government actions

2 18-15254 that do not involve suspect classifications are subject to rational basis review).

The district court properly dismissed Andersen’s Eighth Amendment claim

because Andersen failed to allege facts sufficient to establish that defendant’s

alleged conduct was sufficiently serious. See Farmer v Brennan, 511 U.S. 825,

834 (1994) (alleged deprivation must be, objectively, sufficiently serious to result

in the denial of the minimal civilized measure of life’s necessities).

The district court did not abuse its discretion by denying further leave to

amend because amendment would be futile. See Chappel v. Lab. Corp. of Am.,

232 F.3d 719, 725-26 (9th Cir. 2000) (setting forth standard of review and

explaining that a district court “acts within its discretion to deny leave to amend

when amendment would be futile”); see also Chodos v. West Publ’g Co., 292 F.3d

992, 1003 (9th Cir. 2002) (district court’s discretion is “particularly broad” when it

has already granted a plaintiff leave to amend (citation and internal quotation

marks omitted)).

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).

Andersen’s motion to extend time to pay the docketing and filing fees

(Docket Entry No. 2) is denied as moot.

AFFIRMED.

3 18-15254