Bailey v. Cook

63 F. App'x 979

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 20, 2003
• Docket: No. 02-35966
• Status: Published

Opinion

MEMORANDUM

**

Oregon state prisoner Edward Bailey appeals pro se the district court’s judgment dismissing his 42 U.S.C. § 1983 action for failure to state a claim. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Resnick v. Hayes, 213 F.3d 443, 446 (9th Cir.2000), and we affirm.

The district court properly dismissed Bailey’s claim that prison officials negligently placed him in a class with an inmate who later attacked him because negligence is not sufficient to state an Eighth Amendment violation. See Davidson v. Cannon, 474 U.S. 344, 347-48, 106 S.Ct. 668, 88 L.Ed.2d 677 (1986).

The district court also properly determined that Bailey failed to state a due process claim because being placed in “IMU” was not an atypical and significant hardship in relation to ordinary incidents of prison life. See Sandin v. Conner, 515 U.S. 472, 486, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995).

The district court did not abuse its discretion by dismissing the action without leave to amend because further amendment would have been futile. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.2000) (en banc).

Bailey’s remaining contention is unpersuasive.

Appellee’s motion to appear and file an answering brief is granted. Appellee’s answering brief shall be filed.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.