Anthony Merrick v. David Shinn

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 28, 2021
• Docket: 20-15600
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 28 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

ANTHONY JAMES MERRICK, No. 20-15600

Plaintiff-Appellant, D.C. No. 2:19-cv-05525-SPL-MTM

v. MEMORANDUM* DAVID SHINN, Director, Arizona Department of Corrections; TRINITY FOOD SERVICES,

Defendants-Appellees,

and

CHARLES L. RYAN, Director, Arizona Department of Corrections - in his individual and official capacities; RONALD TOWLES, Supervisor,

Defendants.

Appeal from the United States District Court for the District of Arizona Steven Paul Logan, District Judge, Presiding

Submitted April 20, 2021**

* 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). Before: THOMAS, Chief Judge, TASHIMA and SILVERMAN, Circuit Judges.

Arizona state prisoner Anthony James Merrick appeals pro se from the

district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging

constitutional claims. We 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 Merrick’s claims against defendant

Shinn in his official capacity because Shinn is entitled to Eleventh Amendment

immunity and Merrick does not seek prospective declaratory or injunctive relief.

See Flint v. Dennison, 488 F.3d 816, 824-25 (9th Cir. 2007) (Eleventh Amendment

bars damages actions against state officials in their official capacities); see also

Coal. to Defend Affirmative Action v. Brown, 674 F.3d 1128, 1134 (9th Cir. 2012)

(the Eleventh Amendment “does not . . . bar actions for prospective declaratory or

injunctive relief against state officers in their official capacities for their alleged

violations of federal law.”).

The district court properly dismissed Merrick’s conditions-of-confinement

claims because Merrick failed to allege facts sufficient to show that defendants

knew of or disregarded an excessive risk to Merrick’s health. See Farmer v.

Brennan, 511 U.S. 825, 837 (1994) (prison officials are liable for denying a

prisoner humane conditions of confinement only if they know of and disregard a

2 20-15600 substantial risk of serious harm).

The district court properly dismissed Merrick’s claims based on his inability

to purchase items at the prison store as well as the prices at the prison store

because there is no constitutional right to purchase prison canteen products. See

Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir. 1996) (prisoners have no

constitutional right to purchase canteen products).

The district court properly dismissed Merrick’s equal protection claims

because indigent prisoners are not a protected class. See Taylor v. Delatoore, 281

F.3d 844, 849 (9th Cir. 2002) (indigent prisoners are not a protected class for

purposes of stating an equal protection claim).

The district court properly dismissed Merrick’s access-to-court claims

because Merrick failed to allege facts sufficient to show an actual injury. See

Lewis v. Casey, 518 U.S. 343, 349-53 (1996) (elements of an access-to-courts

claim and actual injury requirement); see also Christopher v. Harbury, 536 U.S.

403, 417 (2002) (to plead an actual injury, the complaint “should state the

underlying claim in accordance with Federal Rule of Civil Procedure 8(a),[ ] just

as if it were being independently pursued”).

The district court properly dismissed Merrick’s failure-to-train and failure-

to-supervise claims because Merrick failed to allege facts sufficient to show that

there was an underlying constitutional violation. See Starr v. Baca, 652 F.3d 1202,

3 20-15600 1207 (9th Cir. 2011) (a supervisor is liable under § 1983 only if he or she was

personally involved in the constitutional deprivation or there is a sufficient causal

connection between the supervisor’s wrongful conduct and the constitutional

violation).

The district court did not abuse its discretion in dismissing as duplicative

Merrick’s claims in his initial complaint based on allegations regarding Keefe

stores. See Cato v. United States, 70 F.3d 1103, 1105 n.2 (9th Cir. 1995) (holding

that the district court did not abuse its discretion when it dismissed claims that

repeated allegations that were previously dismissed under the district court’s

authority to screen in forma pauperis complaints).

The district court did not abuse its discretion in denying Merrick’s motion to

appoint counsel because Merrick did not demonstrate exceptional circumstances.

See Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004) (setting

forth standard of review and requirements for appointment of counsel).

AFFIRMED.

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