                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JUN 1 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

KEVIN BRUCE JOHNSON,                            No. 15-16398

                Plaintiff-Appellant,            D.C. No. 2:12-cv-02400-WBS-
                                                DAD
 v.

R. ROBINSON, Correctional Counselor I; et MEMORANDUM*
al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                      for the Eastern District of California
                   William B. Shubb, District Judge, Presiding

                             Submitted May 24, 2017**

Before:      THOMAS, Chief Judge, and SILVERMAN and RAWLINSON,
Circuit Judges.

      Kevin Bruce Johnson, a California state prisoner, appeals pro se from the

district court’s judgment in his 42 U.S.C. § 1983 action alleging constitutional

violations arising out of his alleged misclassification as a sex offender. We have



      *
             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).
jurisdiction under 28 U.S.C. § 1291. We review de novo. Williams v. Paramo,

775 F.3d 1182, 1191 (9th Cir. 2015) (summary judgment for failure to exhaust

administrative remedies); Hebbe v. Pliler, 627 F.3d 338, 341 (9th Cir. 2010)

(dismissal under Fed. R. Civ. P. 12(b)(6)). We may affirm on any basis supported

by the record. Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1047 (9th Cir. 2009).

We affirm.

      The district court properly granted summary judgment on Johnson’s claims

against defendant Robinson because Johnson failed to raise a genuine dispute of

material fact as to whether he properly exhausted administrative remedies or

whether administrative remedies were effectively unavailable to him. See

Woodford v. Ngo, 548 U.S. 81, 90 (2006) (the Prison Litigation Reform Act

requires “proper exhaustion . . . , which means using all steps that the agency holds

out, and doing so properly (so that the agency addresses the issues on the merits).”

(emphasis, citation, and internal quotation marks omitted)); Wilkerson v. Wheeler,

772 F.3d 834, 839 (9th Cir. 2014) (“[W]hen the administrative rulebook is silent, a

grievance suffices if it alerts the prison to the nature of the wrong for which redress

is sought.” (citation and internal quotation marks omitted)); Sapp v. Kimbrell, 623

F.3d 813, 823-24, 826-27 (9th Cir. 2010) (describing limited circumstances under

which exhaustion may be excused).




                                          2                                     15-16398
      The district court properly dismissed Johnson’s due process claims against

defendants King and Jordan because Johnson failed to allege facts sufficient to

show that the alleged misclassification resulted in an “atypical and significant

hardship . . . in relation to the ordinary incidents of prison life” so as to give rise to

a protected liberty interest. Sandin v. Conner, 515 U.S. 472, 484 (1995); see also

Neal v. Shimoda, 131 F.3d 818, 827-28 (9th Cir. 1997) (inmate’s sex offender

classification implicated a liberty interest only because applicable regulations

required that sex offenders participate in a mandatory treatment program before

being eligible for parole).

      The district court properly dismissed Johnson’s Eighth Amendment claims

against defendants King and Jordan because Johnson failed to allege facts

sufficient to show that he suffered any injury other than the classification itself.

See Hoptowit v. Ray, 682 F.2d 1237, 1256 (9th Cir. 1982) (“[M]isclassification

does not itself inflict pain within the meaning of the Eighth Amendment.”),

abrogated on other grounds by Sandin, 515 U.S. 472.

      Dismissal of Johnson’s equal protection claims against defendants King and

Jordan was proper because Johnson failed to allege facts sufficient to show that he

was discriminated against because of his membership in a protected class or that he

was treated differently than similarly situated individuals without a rational basis.

See N. Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008)


                                            3                                      15-16398
(elements of “class of one” equal protection claim); Serrano v. Francis, 345 F.3d

1071, 1082 (9th Cir. 2003) (requirements for equal protection claim based on

membership in protected class).

      The district court did not abuse its discretion by declining to grant Johnson

leave to amend. See Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir.

2000) (setting forth standard of review and explaining that leave to amend should

be denied if amendment would be futile).

      Johnson’s motion to file a supplemental reply brief (Docket Entry No. 35) is

granted. The Clerk shall file the supplemental reply brief (Docket Entry No. 32).

      AFFIRMED.




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