                                                                              FILED
                           NOT FOR PUBLICATION                                AUG 04 2014

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



                            FOR THE NINTH CIRCUIT


MIKE MURPHY,                                     No. 12-35041

              Plaintiff - Appellant,             D.C. No. 1:11-cv-00453-LMB

  v.
                                                 MEMORANDUM*
BUTCH OTTER; DIRK KEMPTHORNE;
L. LAMONT ANDERSON; PAUL
PANTHER; CAROLEE KELLY; IDAHO
DEPARTMENT OF CORRECTIONS;
IDAHO BOARD OF PARDONS AND
PAROLE; STATE OF IDAHO,

              Defendants - Appellees.


                   Appeal from the United States District Court
                             for the District of Idaho
                   Larry M. Boyle, Magistrate Judge, Presiding

                        Argued and Submitted July 9, 2014
                              Seattle, Washington

Before: ALARCÓN, KLEINFELD, and MURGUIA, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Plaintiff-appellant Mike Murphy appeals the district court’s dismissal with

prejudice of his pro se complaint. We have jurisdiction under 28 U.S.C. § 1291,

and we affirm in part, reverse in part, and remand.

      Murphy, an inmate in the custody of the Idaho Department of Corrections,

brought a 42 U.S.C. § 1983 suit asserting several claims, among them due process

claims and an equal protection claim, against Idaho Governor Butch Otter, the

Idaho Department of Corrections, and other State defendants. In dismissing the

complaint under 28 U.S.C. § 1915A, the district court considered only Murphy’s

claims that he had a right under various international accords to be transferred to a

facility in Canada and a due process right to be so transferred. Murphy contends

on appeal that the district court erred in failing to address his due process claim

arising out of his alleged mediation agreement with the State of Idaho and his equal

protection claim that Mexican nationals were favored in the transfer process.

Murphy also argues that the district court erred in denying him any opportunity to

amend his complaint.

      Although the district court correctly ruled that Murphy has no due process

right to a transfer, the court failed to determine whether Murphy stated a due

process claim for relief arising out of the State of Idaho’s alleged violation of its

mediation agreement with Murphy or an equal protection claim based on the


                                           2
alleged preferential treatment afforded Mexican nationals. Moreover, a district

court should grant leave to amend “unless it determines that the pleading could not

possibly be cured by the allegation of other facts.” Silva v. Di Vittorio, 658 F.3d

1090, 1105 (9th Cir. 2011) (internal quotation marks omitted). Murphy could

potentially allege facts to state both a due process claim based on his mediation

agreement, if there was one, and an equal protection claim based on nationality or

ethnicity, if facts support such a claim. See Smith v. Sumner, 994 F.2d 1401, 1406

(9th Cir. 1993) (noting that an agreement between a state and an inmate can create

a protected liberty interest, the violation of which can give rise to a due process

claim); see also Johnson v. California, 543 U.S. 499, 502, 509, 515 (2005)

(recognizing equal protection claim stemming from race- or ethnicity-based

classifications in a correctional setting). Accordingly, the district court abused its

discretion in denying leave to amend. See Silva, 658 F.3d at 1105.

      We thus vacate the judgment and remand so that the district court may

permit Murphy to amend his complaint to allege, if supporting facts exist, (1) a due

process claim arising out of the violation of his mediation agreement with the State

of Idaho, and (2) an equal protection claim based on the preferential treatment of

certain inmates in the transfer process. The district court should also provide

notice to Murphy of the deficiencies in his complaint “in order to ensure that [he]


                                           3
uses the opportunity to amend effectively.” Ferdik v. Bonzelet, 963 F.2d 1258,

1261 (9th Cir. 1992).

      Murphy’s request for judicial notice is denied as unnecessary to the

resolution of issues on appeal. Cf. Flick v. Liberty Mut. Fire Ins. Co., 205 F.3d

386, 392 n.7 (9th Cir. 2000).



      AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

        Murphy shall bear his own costs on appeal.




                                          4
