FILED
NOT FOR PUBLICATION JAN 17 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JORDAN ROSENBERG, No. 12-55009
Plaintiff - Appellant, D.C. No. 2:09-cv-01722-PA-SH
v.
MEMORANDUM *
HARLEY G. LAPPIN, Director, Bureau of
Prisons; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Submitted January 15, 2013 **
Before: SILVERMAN, BEA, and NGUYEN, Circuit Judges.
Former federal prisoner Jordan Rosenberg appeals pro se from the district
court’s judgment dismissing his action alleging claims under Bivens v. Six
Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) and
*
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).
the Federal Tort Claims Act (the “FTCA”). We have jurisdiction under 28 U.S.C.
§ 1291. We review de novo. Westbay Steel, Inc. v. United States, 970 F.2d 648,
649 (9th Cir. 1992). We affirm.
The district court properly dismissed Rosenberg’s claims of deliberate
indifference to his serious medical needs because Rosenberg failed to allege facts
in his complaint showing that the defendants acted with deliberate indifference.
See Estelle v. Gamble, 429 U.S. 97, 106 (1976) (“Medical malpractice does not
become a constitutional violation merely because the victim is a prisoner.”).
The district court properly dismissed Rosenberg’s claims against defendant
Lappin because vicarious liability is an improper basis for a Bivens action. See
Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).
The district court properly dismissed Rosenberg’s claim that defendants
violated Rosenberg’s due process and equal protection rights by conditioning
benefits under the Inmate Financial Responsibility Program (“IFRP”) on the
monthly payment of a restitution sum they knew Rosenberg could not afford as
Rosenberg failed to allege facts showing that he had a protected liberty interest in
participation in the IFRP or that he was intentionally treated differently from
similarly situated inmates. See United States v. Lemoine, 546 F.3d 1042, 1050 (9th
Cir. 2008) (the consequences for nonparticipation in the IFRP do not constitute
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such an atypical and significant hardship on the inmate in relation to the ordinary
incidents of prison life that they invoke plaintiff’s liberty interest); Thornton v. City
of St. Helens, 425 F.3d 1158, 1166-67 (9th Cir. 2005) (an equal protection claim
will not lie by conflating all persons not injured into a preferred class receiving
better treatment than the plaintiff).
The district court properly concluded that it lacked subject matter
jurisdiction over Rosenberg’s common law tort claims against the United States
under the FTCA. See Westbay Steel, 970 F.2d at 650 (FTCA does not provide
equitable relief).
Rosenberg’s remaining requests of relief from this court, including his
request that this court vacate a dismissal order filed in a different action, remand to
the district court for the entry of default judgment against defendants, overturn the
district court’s order denying Rosenberg access to the CM/ECF system, order the
district court to grant Rosenberg’s re-filed motion to compel disclosure, overturn
the transfer of the case to the Central District of California, and vacate the order
adopting the magistrate judge’s amended Report and Recommendation, are denied.
Any argument regarding the dismissal of Rosenberg’s First Amendment
claim relating to his temporary suspension from the kosher meal plan is waived
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because Rosenberg failed to replead this claim in his second amended complaint.
See Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012).
AFFIRMED.
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