Wilson v. Kernan

FILED
NOT FOR PUBLICATION MAR 05 2010

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

FOR THE NINTH CIRCUIT

DAVID WAYNE WILSON, No. 08-15396

Plaintiff - Appellant, D.C. No. CV-07-00616-GEB/EFB

v.
MEMORANDUM *
SCOTT KERNAN, Director Adult
Institutions; et al.,

Defendants - Appellees.

Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., District Judge, Presiding

Submitted February 16, 2010 **

Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.

David Wayne Wilson, a California state prisoner, appeals pro se from the

district court’s judgment dismissing with prejudice his 42 U.S.C. § 1983 action

*
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).

RGS: Research
claiming violations of his due process rights. We have jurisdiction under 28

U.S.C. § 1291. We review de novo the district court’s dismissal of a complaint for

failure to state a claim under 28 U.S.C. § 1915A, Resnick v. Hayes, 213 F.3d 443,

447 (9th Cir. 2000), and we affirm.

The district court properly dismissed Wilson’s complaint because he failed

to allege the violation of any right arising under the United States Constitution or

federal law, as required for a Section 1983 claim. See Sandin v. Conner, 515 U.S.

472, 483 (1995). As to Wilson’s substantive due process claim, placement in

administrative segregation does not impose the type of “atypical or significant

hardship on the inmate in relation to the incidents of prison life” to give rise to a

protected liberty interest. Id. at 483-84; see also May v. Baldwin, 109 F.3d 557,

565 (9th Cir. 1997). Nor does Wilson allege facts in support of a procedural due

process claim, which would require lack of notice and opportunity for hearing

preceding the deprivation of life, liberty, or property. See Lone Star Sec. & Video,

Inc. v. City of Los Angeles, 584 F.3d 1232, 1236 (9th Cir. 2009). Wilson failed to

allege a protected interest, and admits that he both received advance notice of the

temporary directive at issue and exercised the opportunity to challenge it.

AFFIRMED.

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