NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 22 2011
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
KAREEM JABBAR STANSBURY, Sr., No. 10-16231
Plaintiff - Appellant, D.C. No. 1:09-cv-01043-DLB
v.
MEMORANDUM *
UNITED STATES GOVERNMENT; et
al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Dennis L. Beck, Magistrate Judge, Presiding **
Submitted July 12, 2011 ***
Before: SCHROEDER, ALARCÓN, and LEAVY, Circuit Judges.
Federal prisoner Kareem Jabbar Stansbury, Sr., appeals pro se from the
district court’s judgment dismissing his action under Bivens v. Six Unknown
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
Stansbury consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging
violations of his Fifth and Eighth Amendment rights. We have jurisdiction under
28 U.S.C. § 1291. We review de novo the district court’s dismissal for failure to
state a claim under 28 U.S.C. §§ 1915A or 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.
The district court properly dismissed Stansbury’s Eighth Amendment claim
because Stansbury failed to allege facts sufficient to state a claim for
unconstitutional conditions of confinement. See Hearns v. Terhune, 413 F.3d
1036, 1042 (9th Cir. 2005) (listing elements of conditions-of-confinement claim
and explaining that the duration of the deprivation is relevant); LeMaire v. Maass,
12 F.3d 1444, 1456 (9th Cir. 1993) (“The Eighth Amendment requires only that
prisoners receive food that is adequate to maintain health . . . .”).
The district court properly dismissed Stanbury’s due process claim because
it was duplicative of his Eighth Amendment claim. See Graham v. Connor, 490
U.S. 386, 395 (1989) (where a specific Amendment “provides an explicit textual
source of constitutional protection” against a particular sort of governmental
conduct, “that Amendment, not the more generalized notion of ‘substantive due
process,’ must be the guide for analyzing these claims”).
2 10-16231
Stansbury’s remaining contentions are unpersuasive.
We do not consider Stansbury’s retaliation claim raised for the first time on
appeal. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
Stansbury’s request for appointment of counsel, set forth in his opening
brief, is denied.
AFFIRMED.
3 10-16231