                                                                           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                             NOT FOR PUBLICATION                             JAN 17 2013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



JORDAN ROSENBERG,                                No. 12-55009

               Plaintiff - Appellant,            D.C. No. 2:09-cv-01722-PA-SH

  v.
                                                 MEMORANDUM *
HARLEY G. LAPPIN, Director, Bureau of
Prisons; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Central District of California
                     Percy Anderson, District Judge, Presiding

                            Submitted January 15, 2013 **

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

       Former federal prisoner Jordan Rosenberg appeals pro se from the district

court’s judgment dismissing his action alleging claims under Bivens v. Six

Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) and


          *
             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).
the Federal Tort Claims Act (the “FTCA”). We have jurisdiction under 28 U.S.C.

§ 1291. We review de novo. Westbay Steel, Inc. v. United States, 970 F.2d 648,

649 (9th Cir. 1992). We affirm.

      The district court properly dismissed Rosenberg’s claims of deliberate

indifference to his serious medical needs because Rosenberg failed to allege facts

in his complaint showing that the defendants acted with deliberate indifference.

See Estelle v. Gamble, 429 U.S. 97, 106 (1976) (“Medical malpractice does not

become a constitutional violation merely because the victim is a prisoner.”).

      The district court properly dismissed Rosenberg’s claims against defendant

Lappin because vicarious liability is an improper basis for a Bivens action. See

Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).

      The district court properly dismissed Rosenberg’s claim that defendants

violated Rosenberg’s due process and equal protection rights by conditioning

benefits under the Inmate Financial Responsibility Program (“IFRP”) on the

monthly payment of a restitution sum they knew Rosenberg could not afford as

Rosenberg failed to allege facts showing that he had a protected liberty interest in

participation in the IFRP or that he was intentionally treated differently from

similarly situated inmates. See United States v. Lemoine, 546 F.3d 1042, 1050 (9th

Cir. 2008) (the consequences for nonparticipation in the IFRP do not constitute


                                          2                                       12-55009
such an atypical and significant hardship on the inmate in relation to the ordinary

incidents of prison life that they invoke plaintiff’s liberty interest); Thornton v. City

of St. Helens, 425 F.3d 1158, 1166-67 (9th Cir. 2005) (an equal protection claim

will not lie by conflating all persons not injured into a preferred class receiving

better treatment than the plaintiff).

       The district court properly concluded that it lacked subject matter

jurisdiction over Rosenberg’s common law tort claims against the United States

under the FTCA. See Westbay Steel, 970 F.2d at 650 (FTCA does not provide

equitable relief).

       Rosenberg’s remaining requests of relief from this court, including his

request that this court vacate a dismissal order filed in a different action, remand to

the district court for the entry of default judgment against defendants, overturn the

district court’s order denying Rosenberg access to the CM/ECF system, order the

district court to grant Rosenberg’s re-filed motion to compel disclosure, overturn

the transfer of the case to the Central District of California, and vacate the order

adopting the magistrate judge’s amended Report and Recommendation, are denied.

       Any argument regarding the dismissal of Rosenberg’s First Amendment

claim relating to his temporary suspension from the kosher meal plan is waived




                                            3                                     12-55009
because Rosenberg failed to replead this claim in his second amended complaint.

See Lacey v. Maricopa County, 693 F.3d 896, 928 (9th Cir. 2012).

      AFFIRMED.




                                        4                                  12-55009
