David Wilson v. Scott 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NOT FOR PUBLICATION MAR 05 2010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. 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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