NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 24 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAUL HUPP, No. 16-56879
Plaintiff-Appellant, D.C. No. 5:14-cv-00576-VAP-SP
v.
MEMORANDUM*
COUNTY OF SAN DIEGO; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, District Judge, Presiding
Submitted September 18, 2019**
Before: FARRIS, TASHIMA, and NGUYEN, Circuit Judges.
Former California state prisoner Paul Hupp appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging constitutional
claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Hebbe
v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010) (dismissal under Fed. R. Civ. P.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
12(b)(6)); Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009) (dismissal under
Fed. R. Civ. P. 12(c)). We may affirm on any basis supported by the record.
Kohler v. Bed Bath & Beyond of Cal., LLC, 780 F.3d 1260, 1263 (9th Cir. 2015).
We affirm.
Dismissal of Hupp’s claims related to the County of San Diego’s failure to
transfer promptly his inmate trust account funds was proper because Hupp failed to
allege facts sufficient to show that County policymakers had actual or constructive
notice that this failure was “substantially certain to result in the violation of
constitutional rights . . . .” Castro v. County of Los Angeles, 833 F.3d 1060, 1076
(9th Cir. 2016) (discussing requirements to establish municipal liability).
Dismissal of Hupp’s due process claims related to the donation of his
property was proper because Hupp had an adequate post-deprivation remedy under
California law, and Hupp failed to allege facts sufficient to show that the
policymaker responsible for the policy in question knew or should have known that
the policy’s enforcement would inflict a constitutional injury. See Logan v.
Zimmerman Brush Co., 455 U.S. 422, 436 (1982) (explaining that when “it is the
state system itself that destroys a complainant’s property interest” the challenge is
to the “established state procedure that destroys his entitlement without according
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him proper procedural safeguards” (internal quotation marks omitted)); Jones v.
Williams, 297 F.3d 930, 934 (9th Cir. 2002) (explaining personal participation
requirement); Barnett v. Centoni, 31 F.3d 813, 816-17 (9th Cir. 1994) (California
law provides an adequate post-deprivation remedy for property loss).
The district court properly dismissed Hupp’s unlawful seizure claim because
the Fourth Amendment does not protect an inmate from the seizure, conversion, or
destruction of his property. See Taylor v. Knapp, 871 F.2d 803, 806 (9th Cir.
1989).
Dismissal of Hupp’s due process and deliberate indifference claims related
to the 90-day diagnostic evaluation was proper because Hupp failed to allege facts
sufficient to show that he was not provided with the process he was due, or that
Johnwell, Flesock, or Rigsby knew of and disregarded an excessive risk to Hupp’s
health or safety. See Farmer v. Brennan, 511 U.S. 825, 834, 837 (1994)
(conditions of confinement claim requires showing that prisoner was subjected to a
sufficiently serious deprivation and that defendants knew of and disregarded an
excessive risk to prisoner’s health or safety); Krainski v. Nev. ex. rel. Bd. of
Regents of Nev. Sys. of Higher Educ., 616 F.3d 963, 970 (9th Cir. 2010) (elements
of procedural due process claim).
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Dismissal of Hupp’s challenges to Cal. Penal Code § 1203.03 was proper
because Hupp lacks standing to bring these claims. See Alvarez v. Hill, 667 F.3d
1061, 1064 (9th Cir. 2012) (an inmate’s release from prison moots any claims for
injunctive or declaratory relief relating to the prison’s policies).
The district court properly dismissed Hupp’s claims for denial of access to
the courts because Hupp failed to allege facts sufficient to show he suffered an
actual injury. See Christopher v. Harbury, 536 U.S. 403, 415 (2002) (requirements
for denial of access to courts claim).
Dismissal of Hupp’s claim concerning the light in his cell was proper
because Hupp failed to allege facts sufficient to show that the deprivation he
suffered was sufficiently serious. See Farmer, 511 U.S. at 834, 837.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
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