                                                                            FILED
                             NOT FOR PUBLICATION                             JAN 17 2013

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




                             FOR THE NINTH CIRCUIT



ANTONIO ALEJANDRO GUTIERREZ,                     No. 12-35158

               Plaintiff - Appellant,            D.C. No. 3:09-cv-06204-KI

  v.
                                                 MEMORANDUM *
MAX WILLIAMS, Director Oregon
Department of Corrections; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Oregon
                      Garr M. King, District Judge, Presiding

                            Submitted January 15, 2013 **

Before:        SILVERMAN, BEA, and NGUYEN, Circuit Judges.

       Oregon state prisoner Antonio Alejandro Gutierrez appeals pro se from the

district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging that

defendants violated his constitutional rights by selling him defective shoes in the


          *
             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).
prison commissary. We have jurisdiction under 28 U.S.C. § 1291. We review de

novo the district court’s dismissal under Fed. R. Civ. P. 12(b)(6). Watson v.

Weeks, 436 F.3d 1152, 1157 (9th Cir. 2006). We may affirm on any ground

supported by the record. Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116,

1121 (9th Cir. 2008). We affirm.

      The district court properly dismissed Gutierrez’s Eighth Amendment claim

because Gutierrez failed to allege facts showing a “sufficiently serious” deprivation

or that defendants acted with a “sufficiently culpable state of mind.” Farmer v.

Brennan, 511 U.S. 825, 834 (1994) (outlining elements of an Eighth Amendment

violation).

      Dismissal of Gutierrez’s due process claim was proper because Gutierrez has

an adequate post-deprivation remedy under Oregon state law. See Barnett v.

Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam) (“[A] negligent or

intentional deprivation of a prisoner’s property fails to state a claim under section

1983 if the state has an adequate post deprivation remedy.”); see also Or. Rev. Stat.

§ 30.260 et seq.

      Dismissal of Gutierrez’s equal protection claim was proper because

Gutierrez failed to allege facts demonstrating that defendants acted with the intent

to discriminate against him on the basis of his membership in a protected class.


                                           2                                    12-35158
See Thornton v. City of St. Helens, 425 F.3d 1158, 1166-67 (9th Cir. 2005); see

also Rodriguez v. Cook, 169 F.3d 1176, 1179 (9th Cir. 1999) (indigent prisoners

are not a suspect class).

      AFFIRMED.




                                         3                                   12-35158
