Richard Gallo v. Cheryl Burson , 568 F. App'x 516 ( 2014 )

FILED
NOT FOR PUBLICATION APR 14 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RICHARD E. GALLO, No. 13-15543
Plaintiff - Appellant, D.C. No. 2:11-cv-01080-PMP-
CWH
v.
CHERYL BURSON, Associate Warden of MEMORANDUM*
Programs; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Philip M. Pro, District Judge, Presiding
Submitted April 7, 2014**
Before: TASHIMA, GRABER, and IKUTA, Circuit Judges.
Nevada state prisoner Richard E. Gallo appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging First, Eighth, and
Fourteenth Amendment claims concerning his placement in administrative and
*
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).
disciplinary segregation. We have jurisdiction under 28 U.S.C. § 1291. We
review de novo a dismissal for failure to state a claim under 28 U.S.C. § 1915A,
Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and may affirm on any
ground supported by the record, Johnson v. Riverside Healthcare Sys., LP, 534
F.3d 1116, 1121 (9th Cir. 2008). We affirm.
The district court properly dismissed Gallo’s retaliation claims concerning
his placement in segregation and his inability to get the proper grievance forms
because Gallo failed to allege facts showing that defendants acted with retaliatory
intent to chill his exercise of protected conduct, or that their actions and policies
did not advance valid correctional goals. See Rhodes v. Robinson, 408 F.3d 559,
567-68 (9th Cir. 2005) (setting forth elements of retaliation claim).
The district court properly dismissed Gallo’s due process claims because,
even assuming that Gallo’s placement in administrative or disciplinary segregation
implicated a protected liberty interest because it accompanied at loss of privileges
and the brief confiscation of his appliances, Gallo admitted that he received all the
process he was due. See Wolff v. McDonnell, 418 U.S. 539, 564-67 (1974) (where
liberty interest is implicated, prison officials must provide advance written notice
of the claimed violation; a written statement as to the evidence relied upon and the
reasons for the disciplinary action taken; and a limited right for inmates to call
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witnesses and present documentary evidence in their defense).
Dismissal of Gallo’s cruel and unusual punishment claims was proper
because Gallo failed to allege facts showing that his placement in administrative or
disciplinary segregation posed a substantial risk of serious harm to his health or
safety, or denied him “the minimal civilized measure of life’s necessities.” Rhodes
v. Chapman, 452 U.S. 337, 347 (1981); see also Farmer v. Brennan, 511 U.S. 825,
834 (1994) (for Eighth Amendment claim, plaintiff must allege that defendants
deliberately ignored a substantial risk of serious harm to his health or safety).
The district court properly dismissed Gallo’s equal protection claims
because Gallo failed to allege facts showing that defendants’ policy regarding
“convenience bed moves” resulted in treating him differently from others similarly
situated without a rational basis or discriminated against him based on his
membership in a protected class. See Village of Willowbrook v. Olech, 528 U.S.
562, 564 (2000) (per curiam) (standard for “class of one” equal protection claim);
Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003) (requirements for § 1983
equal protection claim based on membership in protected class).
The district court did not abuse its discretion by denying Gallo’s request for
further leave to amend his claims because such relief would have been futile. See
Mirmehdi v. United States, 689 F.3d 975, 985 (9th Cir. 2012) (a party is not
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entitled to amend its complaint if amendment would be futile); Chodos v. West
Publ’g Co., 292 F.3d 992, 1003 (9th Cir. 2002) (setting forth standard of review,
and noting that the court’s discretion to deny leave to amend is particularly broad
where plaintiff has previously amended the complaint).
Defendants’ motion to strike a portion of the reply brief is denied.
AFFIRMED.
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