                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 28 2010

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




                           FOR THE NINTH CIRCUIT

RUDY HARRIS,                                  No. 08-16860

              Plaintiff - Appellant,          D.C. No. 1:03-cv-5690-OWW-DLB P

  v.
                                              MEMORANDUM *
FRANK P. ALVARADO,

              Defendants - Appellees.




                    Appeal from the United States District Court
                        for the Eastern District of California
                    Oliver W. Wagner, District Judge, Presiding

                      Argued and Submitted October 5, 2010
                            San Francisco, California

Before: KLEINFELD and GRABER, Circuit Judges, and MOLLOY,**
        District Judge.

       Plaintiff Rudy Harris appeals from the district court’s grant of summary

judgment for Defendant Frank Alvarado, the only remaining defendant in this 42

U.S.C. § 1983 case. We review de novo, Serrano v. Francis, 345 F.3d 1071, 1082

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
             The Honorable Donald W. Molloy, United States District Judge,
District of Montana, sitting by designation.
(9th Cir. 2003), and affirm for a different reason, see id. at 1076-77 (noting that we

may affirm on any ground supported by the record).

      Even if we assume that Plaintiff can establish that Defendant fired him to

accomplish "ethnic balancing" and that doing so was unconstitutional, Defendant is

still entitled to qualified immunity. California Code of Regulations title 15, section

3041.1(a), instructs inmate work supervisors to take into account "ethnic balance,"

in addition to several other criteria, when assigning inmates to paid positions.

Thus, Defendant was following an official regulation duly promulgated by

California’s Corrections Standards Authority.

      At the time of Plaintiff’s termination, we reviewed race-based prison

regulations only to see that they were "reasonably related to legitimate penological

interests," Armstrong v. Davis, 275 F.3d 849, 873 (9th Cir. 2001) (internal

quotation marks omitted), rather than using strict scrutiny as the Supreme Court

later instructed in Johnson v. California, 543 U.S. 499, 504-05 (2005). To date, no

court has questioned the legality of California’s inmate hiring regulation or another

like it. In these circumstances, any right that Plaintiff had was not "clearly

established," Pearson v. Callahan, 129 S. Ct. 808, 815 (2009), so Defendant is

entitled to qualified immunity. Cf. Grossman v. City of Portland, 33 F.3d 1200,

1209-10 (9th Cir. 1994) (holding that a duly enacted city ordinance that explicitly


                                           2
sanctions the conduct in question absolves an officer from knowing that his

conduct was unlawful, except when the ordinance so patently violates the

Constitution that a reasonable officer could not believe that it was permissible to

enforce it).

       AFFIRMED.




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