Montue v. Alameida

46 F. App'x 468

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 16, 2002
• Docket: No. 01-16679; D.C. No. CV-99-01877-GEB(DAD)
• Status: Published

Opinion

MEMORANDUM

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John C. Montue, a California state inmate, appeals pro se the district court’s summary judgment in his 42 U.S.C. § 1983 action alleging that he was unconstitutionally subjected to dangerous conditions caused by the occasional presence of birds and bats in the prison cafeteria. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review summary judgment de novo, Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir.2000) (en banc), and we affirm.

The district court correctly granted summary judgment on Montue’s claim that he was deprived of humane conditions of confinement because he failed to show that the presence of a bird or a bat in the cafeteria on two occasions was sufficiently serious to form the basis for an Eighth Amendment violation. See Farmer v. Brennan, 511 U.S. 825, 834, 114 S.Ct. 1970,128 L.Ed.2d 811 (1994).

The district court correctly granted summary judgment on Montue’s substantive due process claim because Montue did not show that he had a protected liberty interest in remaining free from the occasional nuisance of birds or bats. See San-din v. Conner, 515 U.S. 472, 483-84, 115 S.Ct. 2293,132 L.Ed.2d 418 (1995).

We do not consider the denial of Montue’s motion for reconsideration because he did not file an amended notice of appeal. See Fed. R.App. P. 4(a)(4)(B)(ii).

AFFIRMED.

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