Robert King, Jr. v. Joe Capps

FILED
NOT FOR PUBLICATION JUN 17 2010

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

ROBERT HADEN KING, Jr., No. 09-35304

Plaintiff - Appellant, D.C. No. 6:08-cv-06195-TC-MRH

v.
MEMORANDUM *
JOE E. CAPPS, Inspector III; et al.,

Defendants - Appellees.

Appeal from the United States District Court
for the District of Oregon
Michael R. Hogan, District Judge, Presiding

Submitted May 25, 2010 **

Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.

Robert Haden King, Jr., an Oregon state prisoner, appeals from the district

court’s judgment dismissing his 42 U.S.C. § 1983 action arising from a misconduct

report issued against him because of a letter he mailed to his girlfriend. We have

*
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, and therefore denies King’s request. See Fed. R. App. P.
34(a)(2).
jurisdiction under 28 U.S.C. § 1291. We review de novo. Sacks v. Office of

Foreign Assets Control, 466 F.3d 764, 770 (9th Cir. 2006). We affirm.

The district court properly dismissed King’s First Amendment claim because

he failed to allege facts suggesting he was injured as a result of the misconduct

report, which was later dismissed. See Resnick v. Hayes, 213 F.3d 443, 449 (9th

Cir. 2000) (“In a constitutional tort, as in any other, a plaintiff must allege that the

defendant’s actions caused him some injury.”); see also Sprewell v. Golden State

Warriors, 266 F.3d 979, 988 (9th Cir. 2001) (“The court need not . . . accept as

true allegations that contradict matters properly subject to judicial notice or by

exhibit.”).

The district court properly dismissed King’s due process claim because he

failed to allege facts implicating a constitutionally-protected liberty or property

interest. See Bd. of Regents v. Roth, 408 U.S. 564, 569 (1972).

The district court properly dismissed King’s equal protection claim because

he failed to allege facts suggesting he was a member of a protected class or that

similarly-situated inmates outside that class were treated less severely. See

Thornton v. City of St. Helens, 425 F.3d 1158, 1166 (9th Cir. 2005) (to state an

equal protection claim, the plaintiff must allege facts that defendants “acted with

2 09-35304
an intent or purpose to discriminate against the plaintiff based upon membership in

a protected class”) (citation and internal quotation marks omitted).

The district court properly dismissed King’s Eighth Amendment claim

because he failed to allege facts suggesting he suffered a sufficiently serious

deprivation. See Farmer v. Brennan, 511 U.S. 825, 834 (1994) (to state an Eighth

Amendment claim a prisoner must show that an official’s act or omission resulted

in the denial of “the minimal civilized measure of life’s necessities”) (citation and

internal quotation marks omitted).

King’s remaining contentions are unpersuasive.

King’s motion to appoint counsel is denied.

AFFIRMED.

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