Tony Asberry v. Phelps

FILED
NOT FOR PUBLICATION DEC 04 2014

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

TONY ASBERRY, No. 13-16899

Plaintiff - Appellant, D.C. No. 2:09-cv-01494-MCE-
KJN
v.

PHELPS, MEMORANDUM*

Defendant - Appellee.

Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., Chief Judge, Presiding

Submitted November 18, 2014**

Before: LEAVY, FISHER, and N.R. SMITH, Circuit Judges.

California state prisoner Tony Asberry appeals pro se from the district

court’s summary judgment in his 42 U.S.C. § 1983 action alleging violations of his

right to equal protection under the Fourteenth Amendment in connection with his

prison housing assignments. We have jurisdiction under 28 U.S.C. § 1291. We

*
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).
review de novo, FDIC v. Henderson, 940 F.2d 465, 471 (1991), and we affirm.

The district court properly granted summary judgment because Asberry

failed to raise a genuine dispute of material fact as to whether defendant

intentionally discriminated against him on the basis of race. See Barren v.

Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order) (a § 1983 equal protection

claim requires showing that the defendant “acted with an intent or purpose to

discriminate against the plaintiff based upon membership in a protected class”); see

also Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1061 (9th

Cir. 2011) (“To survive summary judgment, a plaintiff must set forth

non-speculative evidence of specific facts, not sweeping conclusory allegations.”).

We do not consider matters not specifically and distinctly raised and argued

in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009)

(per curiam).

Defendant’s unopposed motion to supplement the record, filed on June 9,

2014, is granted.

AFFIRMED.

2 13-16899