                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 14 2013

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



                             FOR THE NINTH CIRCUIT


ROBERT E. PARKES,                                No. 12-15399

               Plaintiff - Appellant,            D.C. No. 3:11-cv-00902-LRH-
                                                 WGC
  v.

GREG COX, Director of NDOC; et al.,              MEMORANDUM*

               Defendants - Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                     Larry R. Hicks, District Judge, Presiding

                            Submitted February 11, 2013**

Before:        FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.

       Nevada state prisoner Robert E. Parkes appeals pro se from the district

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

violations in connection with a fall he sustained in the prison kitchen. We have



          *
             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).
jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal under 28

U.S.C. § 1915A. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). We affirm

in part, vacate in part, and remand.

      The district court properly dismissed Parkes’s equal protection claim

because Parkes failed to allege facts demonstrating a discriminatory intent. See

Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1026 (9th Cir. 1998)

(equal protection claim “must plead intentional unlawful discrimination or allege

facts that are at least susceptible of an inference of discriminatory intent”).

      The district court properly dismissed Parkes’s Eighth Amendment claims

because Parkes failed to allege facts demonstrating that defendants knew of and

disregarded a substantial risk to his safety. See Farmer v. Brennan, 511 U.S. 825,

847 (1994) (a prison official violates the Eighth Amendment prohibition against

inhumane conditions of confinement only if he or she knows of a substantial risk

of serious harm to an inmate and fails to take reasonable measures to avoid the

harm). However, it is not “absolutely clear” that Parkes could not cure this

deficiency through amendment. Cato v. United States, 70 F.3d 1103, 1106 (9th

Cir. 1995) (pro se litigant must be given leave to amend and some notice of the

complaint’s deficiencies unless they are incurable); see also Frost v. Agnos, 152




                                            2
F.3d 1124, 1129 (9th Cir. 1998) (“Slippery floors without protective measures

could create a sufficient danger to warrant relief.”).

      Accordingly, we vacate in part and remand to allow Parkes to file an

amended complaint.

      AFFIRMED in part, VACATED in part, and REMANDED.




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