FILED
NOT FOR PUBLICATION APR 14 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERTO HERRERA, No. 13-16026
Plaintiff - Appellant, D.C. No. 2:12-cv-01965-WBS-
EFB
v.
B. FLEMING; et al., MEMORANDUM*
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, District Judge, Presiding
Submitted April 7, 2014**
Before: TASHIMA, GRABER, and IKUTA, Circuit Judges.
California state prisoner Roberto Herrera appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging due process
violations in connection with his gang validation proceedings. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for failure to
*
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).
state a claim under 28 U.S.C. § 1915A. Hamilton v. Brown, 630 F.3d 889, 892
(9th Cir. 2011). We affirm.
The district court properly dismissed Herrera’s due process claim because,
even assuming that Herrera had a liberty interest in avoiding confinement in the
Security Housing Unit, Herrera failed to allege facts sufficient to show that he was
denied due process. See Bruce v. Ylst, 351 F.3d 1283, 1287 (9th Cir. 2003) (prison
officials need only provide the inmate with notice of the charges against him and
an opportunity to present his views and a prison gang validation need only be
supported by “some evidence”); Resnick v. Hayes, 213 F.3d 443, 448 (9th Cir.
2000) (a prisoner possesses a liberty interest only when a change occurs in
confinement that imposes an “atypical and significant hardship . . . in relation to
the ordinary incidents of prison life” (citation and internal quotation marks
omitted)).
To the extent that Herrera intended to allege a claim for retaliation, the
district court properly dismissed Herrera’s retaliation claim because Herrera failed
to allege facts sufficient to show that defendants retaliated against him for
exercising his constitutional rights. See Bruce, 351 F.3d at 1288 (explaining
elements of a prison retaliation claim under § 1983).
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The district court did not abuse its discretion in denying Herrera’s motions
for appointment of counsel because Herrera failed to demonstrate exceptional
circumstances. See Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991) (setting
forth standard of review and explaining “exceptional circumstances” requirement).
AFFIRMED.
3 13-16026