FILED
NOT FOR PUBLICATION AUG 04 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ERIC CHARLES RODNEY K’NAPP, No. 15-15281
Plaintiff - Appellant, D.C. No. 1:09-cv-00412-SAB
v.
MEMORANDUM*
ARLITZ, Prison Captain Guard; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Stanley Albert Boone, Magistrate Judge, Presiding**
Submitted July 26, 2016***
Before: SCHROEDER, CANBY, and CALLAHAN, Circuit Judges.
California state prisoner Eric Charles Rodney K’Napp appeals pro se from
the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
K’napp consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
constitutional claims. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo. Wilhelm v. Rotman, 680 F.3d 1113, 1118 (9th Cir. 2012) (dismissal under
28 U.S.C. § 1915A); Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012)
(dismissal under 28 U.S.C. § 1915(e)(2)(B)). We may affirm on any ground
supported by the record, Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116,
1121 (9th Cir. 2008), and we affirm.
The district court properly dismissed K’napp’s supervisory liability claims
because K’napp failed to allege facts sufficient to show that the supervisory
defendants were personally involved in a constitutional violation or that their
conduct caused any such violation. See Starr v. Baca, 652 F.3d 1202, 1207-08 (9th
Cir. 2011) (requirements for establishing supervisory liability).
The district court properly dismissed K’napp’s equal protection claims
because K’napp failed to allege facts sufficient to show that he was treated
differently from similarly situated individuals without a rational basis. See N.
Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008) (elements of
“class of one” equal protection claim); Nat’l Ass’n for the Advancement of
Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043, 1049 (9th Cir. 2000) (in
determining whether a complaint states a claim for relief, “we may consider facts
contained in documents attached to the complaint”).
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The district court properly dismissed K’napp’s retaliation claims because
K’napp failed to allege facts sufficient to show that any defendant took any adverse
action against him because of his protected conduct. See Rhodes v. Robinson, 408
F.3d 559, 567-68 (9th Cir. 2005) (elements of a retaliation claim in prison context);
Nat’l Ass’n for the Advancement of Psychoanalysis, 228 F.3d at 1049.
The district court properly dismissed K’napp’s deliberate indifference claims
because K’napp failed to allege facts sufficient to show that any defendant was
deliberately indifferent to his health or safety. See Toguchi v. Chung, 391 F.3d
1051, 1057 (9th Cir. 2004) (a prison official acts with deliberate indifference only
if he or she knows of and disregards an excessive risk to a prisoner’s health or
safety); Nat’l Ass’n for the Advancement of Psychoanalysis, 228 F.3d at 1049.
The district court properly dismissed K’napp’s deprivation of property claim
because California state law provides an adequate post-deprivation remedy. See
Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994) (an unauthorized property
deprivation is not cognizable under § 1983 because California state law provides
an adequate post deprivation remedy). To the extent that K’napp alleged the
deprivation of his property violated the Fourth Amendment, dismissal was proper
because the Fourth Amendment “does not protect an inmate from the seizure and
destruction of his property.” Taylor v. Knapp, 871 F.2d 803, 806 (9th Cir. 1989).
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The district court properly dismissed K’napp’s claims regarding the
processing of his grievances because prisoners do not have “a separate
constitutional entitlement to a specific prison grievance procedure.” Ramirez v.
Galaza, 334 F.3d 850, 860 (9th Cir. 2003).
The district court did not abuse its discretion in denying K’napp leave to file
a Fifth Amended Complaint after explaining the deficiencies in his prior
complaints and giving K’napp prior opportunities to amend. See Gonzalez v.
Planned Parenthood of L.A., 759 F.3d 1112, 1114, 1116 (9th Cir. 2014) (setting
forth standard of review and explaining that a “district court’s discretion in
denying amendment is particularly broad when it has previously given leave to
amend”).
The district court did not err in denying K’napp’s motion to withdraw his
consent to proceed before a magistrate judge because K’napp did not show “good
cause” or “extraordinary circumstances.” 28 U.S.C. § 636(c)(4); see also E.D. Cal.
R. Appendix A(k)(4) (where prisoner consents to proceed before a magistrate
judge, the magistrate judge shall act pursuant to § 636(c) “until the action is
reassigned to a District Judge as required by this subsection or otherwise
applicable law”); Wilhelm, 680 F.3d at 1118 (standard of review); Dixon v. Ylst,
990 F.2d 478, 480 (9th Cir. 1993) (consent to proceed before a magistrate judge
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may only be withdrawn by a showing of good cause or extraordinary
circumstances).
K’napp’s contentions that the district court should have appointed him
counsel, erroneously captioned his complaint, wrongly imposed a page limit on his
amended complaints, and was biased against him, discriminated against him, or
retaliated against him lack merit.
K’napp’s contention that the district court improperly revoked his previously
granted in forma pauperis status is without merit because K’napp has three strikes.
See Richey v. Dahne, 807 F.3d 1202, 1209 n.6 (9th Cir. 2015) (overruling Silva v.
Di Vittorio, 658 F.3d 1090, 1100 (9th Cir. 2011)); Knapp v. Hogan, 738 F.3d 1106,
1111 (9th Cir. 2013) (“Knapp accrued two strikes for the Ninth Circuit dismissals,
and three additional strikes for the district court dismissals.”).
We do not consider K’napp’s arguments regarding the dismissal of his prior
complaints, each of which was dismissed with leave to amend. See Ramirez v.
County of San Bernardino, 806 F.3d 1002, 1008 (9th Cir. 2015) (“[A]n amended
complaint supersedes the original, the latter being treated thereafter as non-
existent.” (citation and internal quotation marks omitted)).
While the district court should have entered a final order after K’napp filed a
notice of intent to stand on his third amended complaint rather than requiring him
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to file a fourth amended complaint, WMX Techs., Inc. v. Miller, 104 F.3d 1133,
1136-37 (9th Cir. 1997) (en banc), K’napp has not shown that he suffered any
harm.
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).
AFFIRMED.
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