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NOT FOR PUBLICATION MAR 05 2010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. 09-15249
Plaintiff - Appellant, D.C. No. 07-cv-00352-MCE-EFB
v.
MEMORANDUM *
SCOTT KERNAN; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, 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).
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claiming that regulatory amendments to the prison quarterly package program
violate the Constitution and various federal and state statutes. 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 federal claims. First, Wilson
failed to allege a violation of the Racketeer Influenced and Corrupt Organizations
(“RICO”) Act, 18 U.S.C. §§ 1961 et seq., because his claim that state-approved
package vendors were run by retired correctional officers or prison guard unions
fails to allege a pattern of racketeering or the other elements of a RICO Act
violation. See Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 482-83, 496 (1985).
Moreover, Wilson lacks standing to sue under the RICO Act because he had no
business interests that were injured and was not deprived of any property interests
by being required to receive packages only from state-approved vendors for valid
security reasons. See id. at 496. Second, Wilson failed to allege a claim of
retaliation under Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005),
because the return of one of his packages was not in reprisal for his constitutionally
protected act of filing grievances and did not chill his exercise of his First
Amendment rights. Instead, the package was returned because Wilson was in
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administrative segregation when it arrived. Moreover, Wilson successfully
exercised his right to administrative relief, obtaining both an acknowledgment
from the institution that the package should have been held until Wilson was
released from segregation, and payment by the institution to have the package re-
shipped. Third, Wilson failed to allege a claim for deliberate indifference because
his right to adequate nutrition under the Eighth Amendment does not entitle him to
packaged food from outside, but only requires the prison to provide food that is
adequate to maintain health. See LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir.
1993).
Finally, the district court properly concluded that neither of Wilson’s alleged
state-law violations stated a cognizable claim under 42 U.S.C. § 1983, and
Wilson’s contention that the district court was nonetheless required to exercise
supplemental jurisdiction over these claims lacks merit. See Ove v. Gwinn, 264
F.3d 817, 826 (9th Cir. 2001). We decline to address the issues Wilson raises for
the first time on appeal, see Dodd v. Hood River County, 59 F.3d 852, 863 (9th Cir.
1995), and we find his remaining contentions unpersuasive.
AFFIRMED.
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