                                                                            FILED
                            NOT FOR PUBLICATION                             SEP 21 2016

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



                            FOR THE NINTH CIRCUIT


JIMMY SIMEONA MALO,                              No. 15-55035

               Plaintiff-Appellant,              D.C. No. 5:13-cv-01781-SJO-JPR

 v.
                                                 MEMORANDUM*
M. HERNANDEZ, Individual; et al.,

               Defendants-Appellees.


                    Appeal from the United States District Court
                        for the Central District of California
                     S. James Otero, District Judge, Presiding

                          Submitted September 13, 2016**

Before:        HAWKINS, N.R. SMITH, and HURWITZ, Circuit Judges.

      Jimmy Simeona Malo, a former California state prisoner, appeals pro se

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

Eighth and Fourth Amendment claims arising from a visual body cavity search.

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

          *
             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).
under Federal Rule of Civil Procedure 12(b)(6). Knievel v. ESPN, 393 F.3d 1068,

1072 (9th Cir. 2005). We affirm.

         The district court properly dismissed Malo’s Eighth Amendment claims

because Malo failed to allege facts sufficient to show that defendants were

deliberately indifferent to Malo’s health or safety. See Foster v. Runnels, 554 F.3d

807, 814 (9th Cir. 2009) (to establish deliberate indifference, an inmate must

demonstrate that the official was aware of a risk and deliberately disregarded the

risk).

         The district court properly dismissed Malo’s Fourth Amendment claim on

the basis of qualified immunity because it would not have been clear to every

reasonable official that defendants’ conduct was unconstitutional. See Plumhoff v.

Rickard, 134 S. Ct. 2012, 2023 (2014) (officials sued under § 1983 are entitled to

qualified immunity unless they violated a right that was clearly established; “a

defendant cannot be said to have violated a clearly established right unless the

right’s contours were sufficiently definite that any reasonable official in the

defendant’s shoes would have understood that he was violating it”). We reject as

without merit Malo’s contention that the alleged violation of prison policy clearly

established that the search was unconstitutional.

         AFFIRMED.


                                           2                                      15-55035
