                                                                           FILED
                             NOT FOR PUBLICATION                            OCT 17 2012

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




                             FOR THE NINTH CIRCUIT



RICHARD GARRETT TURAY,                           No. 11-35469

               Plaintiff - Appellant,            D.C. No. 3:10-cv-05493-BHS

  v.
                                                 MEMORANDUM *
KELLY CUNNINGHAM, Superintendent;
et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                      for the Western District of Washington
                    Benjamin H. Settle, District Judge, Presiding

                             Submitted October 9, 2012 **

Before:        RAWLINSON, MURGUIA, and WATFORD, Circuit Judges.

       Richard Garrett Turay, an involuntarily committed resident of Washington’s

Special Commitment Center (“SCC”), appeals pro se from the district court’s

summary judgment in his 42 U.S.C. § 1983 action alleging violations of the First


          *
             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).
Amendment, Eighth Amendment, Fourteenth Amendment, and the United Nations

Convention Against Torture. We have jurisdiction under 28 U.S.C. § 1291. We

review de novo, Dietrich v. John Ascuaga’s Nugget, 548 F.3d 892, 896 (9th Cir.

2008), and we affirm.

      The district court properly granted summary judgment on Turay’s First

Amendment retaliation claim because Turay failed to raise a genuine dispute of

material fact as to whether defendants’ conduct was based on a retaliatory motive.

See Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir. 2005) ( plaintiffs must

establish that an adverse action was taken “because of” their protected conduct).

      The district court properly granted summary judgment on Turay’s equal

protection claim because Turay failed to raise a genuine dispute of material fact as

to whether he was treated differently from other similarly situated individuals. See

Thornton v. City of St. Helens, 425 F.3d 1158, 1167 (9th Cir. 2005) (different

treatment of unlike individuals does not support an equal protection claim).

      The district court properly granted summary judgment on Turay’s Eighth

Amendment claim because Turay failed to raise a genuine dispute of material fact

as to whether defendants acted with deliberate indifference to his mental health.

See Toguchi v. Chung, 391 F.3d 1051, 1057 (9th Cir. 2004) (defendant acts with

deliberate indifference only if he knows of and disregards an excessive risk to


                                          2                                    11-35469
plaintiff’s health and safety); see also Sharp v. Weston, 233 F.3d 1166, 1171 (9th

Cir. 2000) (requiring deference to the “professional judgment” of officials in state

institutions except where the decision is “‘such a substantial departure from

accepted professional judgment, practice, or standards as to demonstrate that the

person responsible actually did not base the decision on such a judgment.’”

(quoting Youngberg v. Romeo, 457 U.S. 307, 322 (1982))).

      The district court properly granted summary judgment on Turay’s claim

under the United Nations Convention Against Torture because the statute

implementing the Convention does not extend to alleged tortuous acts within the

United States. See 18 U.S.C. § 2340A(a) (“Whoever outside the United States

commits or attempts to commit torture shall be fined under this title or

imprisoned . . . .” (emphasis added)).

      Turay’s motion to conduct de novo review, submitted on September 20,

2011, is denied as unnecessary.

      AFFIRMED.




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