Edwin Gonzalez v. John Doe

Court of Appeals for the Ninth Circuit · 10-56567 · 2012-09-24 · Unpublished

Edwin N. GONZALEZ, Plaintiff-Appellant, v. John DOE, Correctional Officer; Et Al., Defendants-Appellees

Area: other
Panel: Kim M. Wardlaw (author), Smith, Richard R. Clifton

Analysis

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Opinion

FILED NOT FOR PUBLICATION SEP 24 2012

MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

EDWIN N. GONZALEZ, No. 10-56567 Plaintiff - Appellant, D.C. No. 3:07-cv-01962-W-POR v. MEMORANDUM * JOHN DOE, Correctional Officer; et al., Defendants - Appellees.

Appeal from the United States District Court for the Southern District of California Thomas J. Whelan, District Judge, Presiding Submitted September 10, 2012 ** Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.

Edwin N. Gonzalez, a California state prisoner, appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging constitutional violations concerning the maintenance of allegedly false information * 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). in his Central File and his placement on a contraband watch. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003) (dismissal for failure to exhaust); Nelson v. Heiss, 271 F.3d 891, 893 (9th Cir. 2001) (Fed. R. Civ. P. 12(b)(6) dismissal). We affirm.

The district court properly dismissed Gonzalez’s First and Eighth Amendment claims because Gonzalez failed to exhaust administrative remedies before filing his second amended complaint. See Woodford v. Ngo, 548 U.S. 81, 85, 93-95 (2006) (requiring proper exhaustion); Griffin v. Arpaio, 577 F.3d 1117, 1120-21 (9th Cir. 2009) (grievances must give notice of claim).

The district court properly dismissed Gonzalez’s procedural due process claim because even assuming that a liberty interest was at stake, Gonzalez failed to allege facts showing a lack of process. See Shanks v. Dressel, 540 F.3d 1082, 1090 (9th Cir. 2008) (procedural due process violation requires a deprivation of a protected liberty interest by the government and lack of process).

AFFIRMED.

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