Terry Pleasant v. County of Merced , 669 F. App'x 388 ( 2016 )

FILED
NOT FOR PUBLICATION SEP 22 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
TERRY K. PLEASANT, No. 15-16247
Plaintiff-Appellant, D.C. No. 1:13-cv-00805-AWI-
SKO
v.
COUNTY OF MERCED; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Submitted September 13, 2016**
Before: HAWKINS, N.R. SMITH, and HURWITZ, Circuit Judges.
Terry K. Pleasant, a former County of Merced pretrial detainee, appeals pro
se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action
alleging federal and state law claims in connection with the denial of indigent
welfare kits, which contain items necessary for inmates to maintain personal
*
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).
hygiene. 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 and
1915(e)(2)(B)(ii). Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); Barren v.
Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order). We affirm in part,
reverse in part, vacate in part, and remand.
The district court properly dismissed Pleasant’s “class of one” equal
protection claim because Pleasant failed to allege facts sufficient to show that he
was treated differently than similarly situated individuals. See Village of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (setting forth elements of “class
of one” claim).
The district court properly dismissed Pleasant’s conspiracy claims because
Pleasant failed to allege facts sufficient to show class-based, invidiously
discriminatory animus. See Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th
Cir. 1992) (setting forth elements of claim under 42 U.S.C. § 1985(3)); Taylor v.
Delatoore, 281 F.3d 844, 849 (9th Cir. 2002) (indigent prisoners are not a suspect
class); see also Allen v. Gold Country Casino, 464 F.3d 1044, 1048 (9th Cir. 2006)
(no private right of action under 18 U.S.C. § 241).
Dismissal of Pleasant’s conditions-of-confinement claim was premature
because Pleasant alleged that he was entirely denied access to indigent welfare kits
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for six and one-half weeks, while non-indigent inmates could purchase personal
hygiene items. Liberally construed, these allegations in the first amended
complaint were “sufficient to warrant ordering [defendants] to file an answer.”
Wilhelm v. Rotman, 680 F.3d 1113, 1116 (9th Cir. 2012); see also Keenan v. Hall,
83 F.3d 1083, 1091 (9th Cir. 1996), amended by 135 F.3d 1318 (9th Cir. 1998)
(indigent inmates have a right to personal hygiene supplies).
The district court properly dismissed for lack of standing Pleasant’s due
process claims arising from excessive fines and the unlawful deprivation of
property. See Guatay Christian Fellowship v. County of San Diego, 670 F.3d 957,
983-84 (9th Cir. 2011) (procedural due process claims ripen only when a distinct
property deprivation has occurred). However, we vacate dismissal of these claims
and remand for the district court to dismiss the claims without prejudice. See Fleck
& Assocs., Inc. v. City of Phoenix, 471 F.3d 1100, 1106-07 (9th Cir. 2006)
(dismissal for lack of standing is without prejudice).
The district court dismissed Pleasant’s state law claims for lack of
jurisdiction. In light of our disposition, we vacate the district court’s dismissal of
the state law claims, and remand for the district court to decide whether to exercise
supplemental jurisdiction over these claims.
In sum, we affirm the dismissal of Pleasant’s equal protection and
3 15-16247
conspiracy claims; reverse the dismissal of Pleasant’s conditions-of-confinement
claim; vacate the dismissal of Pleasant’s due process claim for excessive fines, due
process claim for unlawful deprivation of property, and state law claims; and
remand for further proceedings.
AFFIRMED in part, REVERSED in part, VACATED in part, and
REMANDED.
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