                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 22 2011

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




                            FOR THE NINTH CIRCUIT



JOHN BAGENT,                                     No. 10-17601

              Plaintiff - Appellant,             D.C. No. 1:06-cv-01842-LJO-SMS

  v.
                                                 MEMORANDUM *
RICHARD PIERCE, Sheriff,

              Defendant,

  and

MARGARET MIMMS, Asst. Sheriff; et
al.,

              Defendants - Appellees.



                   Appeal from the United States District Court
                       for the Eastern District of California
                   Lawrence J. O’Neill, District Judge, Presiding

                           Submitted December 19, 2011 **

Before: GOODWIN, WALLACE, and McKEOWN, Circuit Judges.


        *
             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).
      John Bagent, a civilly committed sexually violent predator, appeals pro se

from the district court’s summary judgment in his 42 U.S.C. § 1983 action

alleging, inter alia, that defendant Transcor America, LLC violated his procedural

and substantive due process rights while transporting him from a jail to a state

hospital by failing to segregate him from criminally committed passengers and for

otherwise mistreating him.1 We have jurisdiction under 28 U.S.C. § 1291. We

review de novo the decision to grant summary judgment. Jones v. Blanas, 393

F.3d 918, 926 (9th Cir. 2004). We affirm.

      Bagent’s arguments relating to California Penal Code sections 1610 and

4002 are unavailing because those sections address confinement in a “room,”2

“housing” 3 or “facility” (defined to include “a state hospital, a local treatment

facility, a county jail, or any other appropriate facility”),4 and are therefore

inapplicable to Bagent’s brief time spent in a Transcor bus. Conn. Nat’l Bank v.




      1
             Because Bagent’s opening brief addresses only the order granting
summary judgment to Transcor, he has waived any claim regarding the order in
favor of defendants Margaret Mims and Gary Johnson. Smith v. Marsh, 194 F.3d
1045, 1052 (9th Cir. 1999).
      2
             Cal. Penal Code § 4002(a).
      3
             Id. § 4002(b).
      4
             Cal. Penal Code § 1610(b).

                                            2
Germain, 503 U.S. 249, 253–54 (1992); Wilkin v. United States, 809 F.2d 1400,

1401 (9th Cir. 1987).

      With respect to his procedural due process claims, Bagent fails to controvert

evidence that any restraint on his liberty interests was amply outweighed by an

interest in the safety and security of everyone on the bus, including him, the other

passengers, and Transcor employees. See Youngberg v. Romero, 457 U.S. 307,

321 (1982). Because Bagent failed to rebut evidence that Transcor’s treatment of

him was neither punitive,5 nor “‘clearly arbitrary and unreasonable, having no

substantial relation to the public health, safety, morals, or general welfare,’”6 and

because he had no protected liberty interest in enjoying a greater degree of comfort

than Transcor provided him while in its care,7 summary judgment was also

appropriate with respect to his substantive due process claim.

      Because we conclude that Bagent’s constitutional rights were not violated,

we need not address his remaining contentions.

      AFFIRMED.



      5
             See Jones, 393 F.3d at 932–33.
      6
            Patel v. Penman, 103 F.3d 868, 874 (9th Cir. 1996), overruled in part
on other grounds as recognized by Nitco Holding Corp. v. Boujikian, 491 F.3d
1086 (9th Cir. 2007).
      7
             See Bell v. Wolfish, 441 U.S. 520, 534–35 (1979).

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