                                                                            FILED
                           NOT FOR PUBLICATION                              OCT 05 2016

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



                            FOR THE NINTH CIRCUIT


WINONA WEATHERS,                                 No.    15-17492

              Plaintiff-Appellant,               D.C. No. 1:13-cv-01932-AWI-
                                                 MJS
 v.

M. HAGEMEISTER-MAY; et al.,                      MEMORANDUM*

              Defendants-Appellees.


                    Appeal from the United States District Court
                       for the Eastern District of California
                    Anthony W. Ishii, District Judge, Presiding

                          Submitted September 27, 2016**

Before:      TASHIMA, SILVERMAN, and M. SMITH, Circuit Judges.

      Winona Weathers, a California state prisoner, appeals pro se from the

district court’s judgment dismissing her action alleging federal and state law

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

Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (dismissal for failure to state a

      *
             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).
claim under 28 U.S.C. § 1915A); Barren v. Harrington, 152 F.3d 1193, 1194 (9th

Cir. 1998) (order) (dismissal for failure to state a claim under 28 U.S.C.

§ 1915(e)(2)(B)(ii)). We affirm.

       The district court properly dismissed Weathers’ Americans with Disabilities

Act (“ADA”) claim because Weathers failed to allege facts sufficient to show that

her foot problems qualify as a disability under the ADA. See 42 U.S.C. § 12102(1)

(defining “disability” under the ADA); Weaving v. City of Hillsboro, 763 F.3d

1106, 1111 (9th Cir. 2014) (a disability is a physical or mental impairment that

substantially limits one or more major life activities).

       The district court properly dismissed Weathers’ equal protection claim

because, even assuming she had a disability, Weathers failed to allege facts

sufficient to show that her exclusion from the fabric facility was not rationally

related to a legitimate state objective. See Lee v. City of Los Angeles, 250 F.3d

668, 686-87 (9th Cir. 2001) (“[T]he disabled do not constitute a suspect class for

equal protection purposes.”); Coakley v. Murphy, 884 F.2d 1218, 1221-22 (9th Cir.

1989) (“When a state policy does not adversely affect a suspect class or impinge

upon a fundamental right, all that is constitutionally required of the state’s program

is that it be rationally related to a legitimate state objective.”).

       The district court properly dismissed Weathers’ retaliation claim because


                                             2                                  15-17492
Weathers failed to allege facts sufficient to show that any defendant participated in

the alleged act of retaliation or that the allegedly adverse action was taken because

she engaged in protected conduct. See Rhodes v. Robinson, 408 F.3d 559, 567-68

(9th Cir. 2005) (elements of a retaliation claim in the prison context); Jones v.

Williams, 297 F.3d 930, 934 (9th Cir. 2002) (“In order for a person acting under

color of state law to be liable under section 1983 there must be a showing of

personal participation in the alleged rights deprivation....”)

       The district court properly dismissed Weathers’ Title VII claim because

Weathers failed to allege facts sufficient to show that defendants discriminated

against her on the basis of her “race, color, religion, sex, or national origin.” 42

U.S.C. § 2000e-2; see also Davis v. Team Elec. Co., 520 F.3d 1080, 1093 n. 8 (9th

Cir. 2008) (“Title VII does not encompass discrimination on the basis of

disability.”).

       The district court properly dismissed Weathers’ Fair Labor Standards Act

(“FLSA”) claim because Weathers is not an employee for purposes of the FLSA.

See Burleson v. California, 83 F.3d 311, 313-14 (9th Cir. 1996) (California

inmates employed by the Prison Industry Authority are not employees for purposes

of Fair Labor Standards Act).

       The district court properly dismissed claims against defendant Beard


                                            3                                    15-17492
because Weathers failed to allege facts sufficient to show that Beard participated in

or directed any constitutional violation or knew of any violation and failed to act to

prevent it. See Taylor v. List, 880 F.2d 1040 (1045) (9th Cir. 1989). (requirements

for establishing supervisory liability).

      The district court did not abuse its discretion by declining to exercise

supplemental jurisdiction over the Weathers’ state law claims because Weathers

failed to state a federal claim. See Ove v. Gwinn, 264 F.3d 817, 821, 826 (9th Cir.

2001) (setting forth standard of review; “[a] court may decline to exercise

supplemental jurisdiction over related state-law claims once it has dismissed all

claims over which it has original jurisdiction” (citation and internal quotation

marks omitted)).

      Weathers’ request to submit new evidence, filed on June 27, 2016, is denied

because materials “not filed with the district court or admitted into evidence by that

court are not part of the clerk’s record and cannot be part of the record on appeal.”

Kirshner v. Uniden Corp. of Am., 842 F.2d 1074, 1077 (9th Cir. 1988).

      AFFIRMED.




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