FILED
NOT FOR PUBLICATION OCT 10 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
PAUL ADAMS, No. 12-55328
Plaintiff - Appellant, D.C. No. 3:10-cv-01211-MMA-
POR
v.
LARRY SMALL, Warden; et al., MEMORANDUM *
Defendants - Appellees.
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Submitted September 24, 2013 **
Before: RAWLINSON, N.R. SMITH, and CHRISTEN, Circuit Judges.
Paul Adams, a California state prisoner, appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging that defendants
violated his constitutional rights by classifying him as a gang affiliate. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s
*
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).
dismissal for failure to state a claim under Fed. R. Civ. P. 12(b)(6). Romano v.
Bible, 169 F.3d 1182, 1185 (9th Cir. 1999). We affirm.
The district court properly dismissed Adams’s Fourteenth Amendment due
process claim because Adams has no liberty interest in his classification status.
See Sandin v. Conner, 515 U.S. 472, 484 (1995) (liberty interest arising from state
laws or policies “will be generally limited to freedom from restraint which . . .
imposes atypical and significant hardship on the inmate in relation to the ordinary
incidents of prison life”); Myron v. Terhune, 476 F.3d 716, 718 (9th Cir. 2007)
(prison classification does not implicate a state-created liberty interest).
The district court properly dismissed Adams’s equal protection claim
because Adams failed to allege facts demonstrating that defendants intentionally
and without rational basis treated him differently from others similarly situated and
intentionally discriminated against him. See N. Pacifica LLC v. City of Pacifica,
526 F.3d 478, 486 (9th Cir. 2008) (elements of equal protection claim).
The district court properly dismissed Adams’s First Amendment retaliation
claim as Adams did not allege sufficient facts to support his conclusory allegations
of retaliatory motive. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (to survive
a motion to dismiss, a plaintiff must allege facts that “allow [] the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged”).
2 12-55328
Absent plausible allegations of retaliatory motive, the district court also
properly dismissed Adams’s First Amendment free association claim because the
prison’s internal classification of prisoners is reasonably related to legitimate
penological interests. See Turner v. Safley, 482 U.S. 78, 89-91 (1987) (discussing
factors for determining whether regulation that impinges on First Amendment
rights is reasonably related to legitimate penological interests); see also Bruce v.
Ylst, 351 F.3d 1283, 1289 (9th Cir. 2003) (“It is clear . . . that prisons have a
legitimate penological interest in stopping prison gang activity.”).
To the extent that Adams also contends that his alleged improper
classification violated the Eighth Amendment, dismissal was proper because the
act of classification “does not amount to an infliction of pain” and therefore “is not
condemned by the Eighth Amendment.” Myron, 476 F.3d at 719 (internal
quotation omitted).
Adams’s allegations of judicial bias are unsupported by the record.
Adams’s motion for a temporary injunction, filed on September 23, 2013, is
denied without prejudice to raising the allegations that form the basis for the
motion in a new action in district court, provided that Adams has exhausted his
administrative remedies in accordance with the Prison Litigation Reform Act.
AFFIRMED.
3 12-55328