David Thomas v. Connie Bisbee ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 9 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID JONATHAN THOMAS, No. 19-16061
Plaintiff-Appellant, D.C. No. 3:17-cv-00677-MMD-
CBC
v.
CONNIE BISBEE; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, District Judge, Presiding
Submitted June 2, 2020**
Before: LEAVY, PAEZ, and BENNETT, Circuit Judges.
Nevada state prisoner David Jonathan Thomas appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging an equal
protection claim. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo. Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (dismissal under 28
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
U.S.C. § 1915(e)(2)(B)(ii)); Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)
(dismissal under 28 U.S.C. § 1915A). We affirm.
The district court properly dismissed Thomas’s action because Thomas
failed to allege facts sufficient to state a plausible claim that he was intentionally
discriminated against as a member of a protected class, or that he was intentionally
treated differently from others similarly situated, without a rational basis for the
different treatment. See Vill. of Willowbrook v. Olech, 528 U.S. 562, 564 (2000)
(per curiam) (elements of an equal protection “class of one” claim); Furnace v.
Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013) (“To state a claim under 42 U.S.C.
§ 1983 for a violation of the Equal Protection Clause of the Fourteenth
Amendment a plaintiff must show that the defendants acted with an intent or
purpose to discriminate against the plaintiff based upon membership in a protected
class.” (citation and internal quotation marks omitted)); Hebbe v. Pliler, 627 F.3d
338, 341-42 (9th Cir. 2010) (although pro se pleadings are liberally construed, a
plaintiff must allege facts sufficient to state a plausible claim).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
All pending motions and requests are denied.
AFFIRMED.
2 19-16061