                                                                            FILED
                            NOT FOR PUBLICATION                             AUG 05 2016

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


JEREMY STROHMEYER,                               No. 15-16147

               Plaintiff-Appellant,              D.C. No. 3:14-cv-00661-RCJ-
                                                 WGC
 v.

K. BELANGER; et al.,                             MEMORANDUM*

               Defendants-Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                    Robert Clive Jones, District Judge, Presiding

                              Submitted July 26, 2016**

Before:        SCHROEDER, CANBY, and CALLAHAN, Circuit Judges.

      Nevada state prisoner Jeremy Strohmeyer appeals pro se from the district

court’s judgment dismissing his 42 U.S.C. § 1983 action alleging federal and state

law claims in connection with an assault and disciplinary hearings. We have

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

           *
             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).
dismissal under 28 U.S.C. § 1915A. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.

2000). We affirm in part, reverse in part, vacate in part, and remand.

      The district court properly dismissed Strohmeyer’s due process claim for

unlawful deprivation of his property because Strohmeyer had an adequate

postdeprivation remedy under Nevada law. See Nev. Rev. Stat. §§ 41.031,

41.0322; Hudson v. Palmer, 468 U.S. 517, 533 (1984) (“[A]n unauthorized

intentional deprivation of property by a state employee does not constitute a

violation of the procedural requirements of the Due Process Clause of the

Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is

available.”).

      The district court properly dismissed Strohmeyer’s due process claim arising

from a December 2012 disciplinary hearing because the result of that disciplinary

hearing was overturned on appeal. See Frank v. Schultz, 808 F.3d 762, 764 (9th

Cir. 2015) (administrative reversal may cure due process violations).

      To the extent that Strohmeyer sought to bring a federal right to counsel

claim, the district court properly dismissed this claim because Strohmeyer failed to

allege facts sufficient to show that his circumstances required the assistance of

counsel. See Vitek v. Jones, 445 U.S. 480, 495-96 (1980) (circumstances in which

prisoners must be given some legal assistance at a disciplinary hearing).


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      However, the district court erred by concluding that Strohmeyer failed to

state a deliberate indifference to safety claim because Strohmeyer alleged that

defendants created a risk to his safety and then intentionally failed to protect him

from that risk. See Farmer v. Brennan, 511 U.S. 825, 834, 837 (1994)

(requirements for a deliberate indifference claim).

      The district court erred by concluding that Strohmeyer failed to state a due

process claim arising from a March 2013 disciplinary hearing because Strohmeyer

alleged that defendants neither provided him with proper notice of the evidence

against him nor offered an explanation for limiting his ability to call witnesses.

See Serrano v. Francis, 345 F.3d 1071, 1077-78 (9th Cir. 2003) (explaining

prisoners’ rights at disciplinary hearings, including the right “to call witnesses, to

present documentary evidence[,] and to have a written statement by the factfinder

as to the evidence relied upon and the reasons for the disciplinary action taken”).

      The district court erred by concluding that Strohmeyer failed to state a

conspiracy claim because Strohmeyer alleged that defendants encouraged and

planned to allow an inmate to assault Strohmeyer. See Fonda v. Gray, 707 F.2d

435, 438 (9th Cir. 1983) (“To prove a conspiracy between private parties and the

government under § 1983, an agreement or ‘meeting of the minds’ to violate

constitutional rights must be shown.”).


                                            3                                    15-16147
      Although the district court properly dismissed Strohmeyer’s retaliation

claims because Strohmeyer failed to allege facts sufficient to show that the alleged

adverse actions had a chilling effect, see Rhodes v. Robinson, 408 F.3d 559, 567-68

(9th Cir. 2005), the district court abused its discretion by dismissing the claims

without leave to amend because it is not clear that amendment would be futile, see

AE v. County of Tulare, 666 F.3d 631, 636 (9th Cir. 2012) (setting forth standard

of review and bases for denial of amendment).

      Although the district court properly dismissed Strohmeyer’s equal protection

claim because Strohmeyer failed to allege 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); Serrano, 345 F.3d at 1082, the

district court abused its discretion by dismissing this claim without leave to amend

because it is not clear that amendment would be futile, see AE, 666 F.3d at 636.

      The district court dismissed Strohmeyer’s state law claims on the basis that

Strohmeyer should pursue those claims in state court. Although the decision to

decline supplemental jurisdiction over the state law claims was appropriate after all

of the federal claims were dismissed, in light of our disposition, we vacate the

district court’s dismissal of the state law claims, and remand for the district court to


                                           4                                     15-16147
decide whether to exercise supplemental jurisdiction over these claims.

      In sum, we affirm the dismissal of Strohmeyer’s due process claim for

unlawful deprivation of property, due process claim for the 2012 disciplinary

hearing, and federal right to counsel claim, reverse the dismissal of Strohmeyer’s

deliberate indifference to safety claim, due process claim for the 2013 disciplinary

hearing, and civil conspiracy claim, reverse the denial of leave to amend

Strohmeyer’s retaliation and equal protection claims, and vacate the dismissal of

his state law claims, and remand for further proceedings.

      We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

      AFFIRMED in part, REVERSED in part, VACATED in part, and

REMANDED.




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