Curt Wilson v. Liz Ayers , 470 F. App'x 654 ( 2012 )


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  •                                                                            FILED
    NOT FOR PUBLICATION                            MAR 05 2012
    MOLLY C. DWYER, CLERK
    UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS
    FOR THE NINTH CIRCUIT
    CURT WILSON,                                     No. 10-17008
    Plaintiff - Appellant,            D.C. No. 2:07-cv-01283-LRH-
    LRL
    v.
    LIZ AYERS; et al.,                               MEMORANDUM *
    Defendants - Appellees.
    Appeal from the United States District Court
    for the District of Nevada
    Larry R. Hicks, District Judge, Presiding
    Submitted February 21, 2012 **
    Before:        FERNANDEZ, McKEOWN, and BYBEE, Circuit Judges.
    Curt Wilson appeals pro se from the district court’s judgment dismissing his
    
    42 U.S.C. § 1983
     action alleging due process and equal protection violations
    arising from the denial of his workers’ compensation claim. We have jurisdiction
    under 
    28 U.S.C. § 1291
    . We review de novo. Romano v. Bible, 
    169 F.3d 1182
    ,
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by 9th Cir. R. 36-3.
    **
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    1185 (9th Cir. 1999). We affirm.
    The district court properly dismissed Wilson’s claims against defendant
    Richins, a Nevada Department of Administration Appeals Officer, in her official
    and individual capacities. See Flint v. Dennison, 
    488 F.3d 816
    , 824-25 (9th Cir.
    2007) (Eleventh Amendment bars damages actions against state officials in their
    official capacity); Romano, 
    169 F.3d at 1186
     (absolute immunity extends to state
    officials, including those sued in their individual capacity, “when they preside over
    hearings . . . or otherwise perform functions analogous to judges”).
    The district court properly dismissed Wilson’s due process claims because
    Wilson failed to allege facts sufficient to show that defendants acted in a
    “conscience shocking” manner, or that Wilson did not receive an adequate
    opportunity to be heard. See Brittain v. Hansen, 
    451 F.3d 982
    , 998 (9th Cir. 2006)
    (“It is not conscience shocking that an officer would act in a non-identical fashion
    in cases presenting similar (though not identical) factual circumstances.”); Raditch
    v. United States, 
    929 F.2d 478
    , 480 (9th Cir. 1991) (procedural due process claim
    requires showing a lack of notice and an opportunity to be heard).
    The district court properly dismissed Wilson’s equal protection claim
    because Wilson failed to allege facts sufficient to support his claim. See Monteiro
    v. Tempe Union High Sch. Dist., 
    158 F.3d 1022
    , 1026 (9th Cir. 1998) (equal
    2                                   10-17008
    protection claim “must plead intentional unlawful discrimination or allege facts
    that are at least susceptible of an inference of discriminatory intent”); see also
    Aschcroft v. Iqbal, 
    129 S. Ct. 1937
    , 1948, 1951-52, 1954 (2009) (for purposeful
    discrimination, a plaintiff must plead sufficient facts to give rise to a plausible
    inference that a decisionmaker undertook a course of action because of, not merely
    in spite of, the action’s adverse effects upon an identifiable group).
    Wilson’s remaining contentions, including those regarding the rebuttable
    presumption in Nevada Revised Statutes § 617.453(5), are unpersuasive.
    AFFIRMED.
    3                                     10-17008