Edward Ray, Jr. v. Greg Schoo

Ninth Circuit

Edward Ray, Jr. v. Greg Schoo

592 F. App'x 590

CourtCourt of Appeals for the Ninth Circuit

DecidedFebruary 2, 2015

Docket14-55205

StatusUnpublished

This text of 592 F. App'x 590 (Edward Ray, Jr. v. Greg Schoo) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Edward Ray, Jr. v. Greg Schoo, 592 F. App'x 590 (9th Cir. 2015).

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Opinion

MEMORANDUM **

Edward Vincent Ray, Jr., appeals pro se from the district court’s judgment dismiss *591 ing his 42 U.S.C. § 1983 action alleging various constitutional violations in connection with his housing as a layover inmate at the California Institute for Men. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir.2010) (dismissal under Fed.R.Civ.P. 12(b)(6)). We affirm.

The district court properly dismissed Ray’s Eighth Amendment claims because Ray failed to allege facts sufficient to show that defendant disregarded a substantial risk of serious harm to Ray when he was temporarily housed outside, or in a holding cell. See Graves v. Arpaio, 623 F.3d 1043, 1049 (9th Cir.2010) (per curiam) (Eighth Amendment guarantees only adequate heat, not a comfortable temperature; “[o]ne measure of an inadequate, as opposed to merely uncomfortable, temperature is that it poses a substantial risk of serious harm” (citations and internal quotation marks omitted)); Hoptowit v. Ray, 682 F.2d 1237, 1258 (9th Cir.1982), abrogated on other grounds by Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) (court may consider the length of time a prisoner must go without benefits).

The district court properly dismissed Ray’s due process claims because Ray failed to allege facts sufficient to identify a protected liberty or property interest of which he was deprived. See Sandin, 515 U.S. at 486, 115 S.Ct. 2293 (holding that discipline in segregated confinement did not present the type of atypical, significant deprivation in which a state might conceivably create a liberty interest); Ward v. Ryan, 623 F.3d 807, 813 (9th Cir.2010) (to establish a due process violation, an inmate must demonstrate that he has been deprived of a protected liberty or property interest by arbitrary government action).

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).

AFFIRMED.

**

This disposition is not appropriate for publication and is not precedent except as provid *591 ed by 9th Cir. R. 36-3.

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MEMORANDUM **

Edward Vincent Ray, Jr., appeals pro se from the district court’s judgment dismiss *591 ing his 42 U.S.C. § 1983 action alleging various constitutional violations in connection with his housing as a layover inmate at the California Institute for Men. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir.2010) (dismissal under Fed.R.Civ.P. 12(b)(6)). We affirm.

The district court properly dismissed Ray’s Eighth Amendment claims because Ray failed to allege facts sufficient to show that defendant disregarded a substantial risk of serious harm to Ray when he was temporarily housed outside, or in a holding cell. See Graves v. Arpaio, 623 F.3d 1043, 1049 (9th Cir.2010) (per curiam) (Eighth Amendment guarantees only adequate heat, not a comfortable temperature; “[o]ne measure of an inadequate, as opposed to merely uncomfortable, temperature is that it poses a substantial risk of serious harm” (citations and internal quotation marks omitted)); Hoptowit v. Ray, 682 F.2d 1237, 1258 (9th Cir.1982), abrogated on other grounds by Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) (court may consider the length of time a prisoner must go without benefits).

The district court properly dismissed Ray’s due process claims because Ray failed to allege facts sufficient to identify a protected liberty or property interest of which he was deprived. See Sandin, 515 U.S. at 486, 115 S.Ct. 2293 (holding that discipline in segregated confinement did not present the type of atypical, significant deprivation in which a state might conceivably create a liberty interest); Ward v. Ryan, 623 F.3d 807, 813 (9th Cir.2010) (to establish a due process violation, an inmate must demonstrate that he has been deprived of a protected liberty or property interest by arbitrary government action).

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).

AFFIRMED.

**

This disposition is not appropriate for publication and is not precedent except as provid *591 ed by 9th Cir. R. 36-3.

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592 F. App'x 590, Counsel Stack Legal Research, https://law.counselstack.com/opinion/edward-ray-jr-v-greg-schoo-ca9-2015.

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