                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        JAN 19 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

DAVID L. MATHIS,                                No.    17-15646

                Petitioner-Appellant,           D.C. No. 2:17-cv-00052-AC

 v.
                                                MEMORANDUM*
J. SALAZAR,

                Respondent-Appellee.

                   Appeal from the United States District Court
                       for the Eastern District of California
                   Allison Claire, Magistrate Judge, Presiding**

                           Submitted January 16, 2018***

Before:      REINHARDT, TROTT, and HURWITZ, Circuit Judges.

      Federal prisoner David Mathis appeals pro se from the district court’s

judgment denying his 28 U.S.C. § 2241 habeas petition. We have jurisdiction

under 28 U.S.C. § 1291. We review de novo a district court’s denial of a section


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
      ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
2241 habeas petition, see Tablada v. Thomas, 533 F.3d 800, 805 (9th Cir. 2008),

and we affirm.

      Mathis argues that the two-hour watch program at FCI Herlong, which

requires higher risk prisoners to report to staff every two hours during the day and

when moving from one location in the prison to another, violates his due process

and equal protection rights. Mathis’s due process claims fail because the two-hour

watch program does not implicate a liberty interest protected by the Due Process

Clause. See Sandin v. Conner, 515 U.S. 472, 484 (1995) (explaining that liberty

interests are implicated where a restraint exceeds the sentence “in such an

unexpected manner as to give rise to protection by the Due Process Clause of its

own force” or “imposes atypical and significant hardship on the inmate in relation

to the ordinary incidents of prison life”); Moody v. Daggett, 429 U.S. 78, 88 n.9

(1976) (noting not “every state action carrying adverse consequences for prison

inmates automatically activates a due process right”).

      Mathis’s equal protection challenge to the two-hour watch program also fails

because he has not alleged that the prison’s placement of inmates into the program

“affect[s] fundamental rights [or] proceed[s] along suspect lines,” Heller v. Doe,

509 U.S. 312, 319 (1993), and we perceive a rational basis for requiring higher risk

inmates to report to staff more frequently, see, e.g., McLean v. Crabtree, 173 F.3d

1176, 1186 (9th Cir. 1999) (concluding the Bureau of Prisons had a rational basis


                                          2                                   17-15646
for excluding inmates with detainers from sentence reduction eligibility).

      Mathis’s claim that the district court erred when it denied his petition

without leave to amend, raised for the first time in his reply brief, is waived. See

Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1213 (9th Cir. 2017).

      AFFIRMED.




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