                                                                            FILED
                            NOT FOR PUBLICATION                              APR 14 2014

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



                             FOR THE NINTH CIRCUIT


HILTON FISHER,                                    No. 13-15784

               Plaintiff - Appellant,             D.C. No. 1:11-cv-00609-AWI-
                                                  BAM
  v.

S. ADAIR, Psychologist at California              MEMORANDUM*
Correctional Institution,

               Defendant - Appellee.


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

                              Submitted April 7, 2014**

Before:        TASHIMA, GRABER, and IKUTA, Circuit Judges.

       California state prisoner Hilton Fisher appeals pro se from the district court’s

judgment dismissing his 42 U.S.C. § 1983 action alleging that his constitutional

rights were violated following statements he made to defendant during a mental


          *
             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).
health screening. 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 under 28

U.S.C. § 1915A); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)

(order) (dismissal under 28 U.S.C. § 1915(e)(2)). We affirm.

       The district court properly dismissed Fisher’s Eighth Amendment claim

because Fisher failed to allege facts showing that defendant disregarded an

excessive risk to Fisher’s safety. See Farmer v. Brennan, 511 U.S. 825, 845, 847

(1994) (a prison official acts with deliberate indifference by failing to take

reasonable measures to abate a substantial risk of serious harm to an inmate); see

also Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (though pro se

pleadings are to be liberally construed, a plaintiff must still present factual

allegations sufficient to state a plausible claim for relief).

       The district court properly dismissed Fisher’s equal protection claim because

Fisher failed to allege facts showing that defendant intentionally treated him

differently from others who were similarly situated without a rational basis, see N.

Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008), or

intentionally discriminated against him on the basis of his membership in a

protected class, see Thornton v. City of St. Helens, 425 F.3d 1158, 1166 (9th Cir.

2005); see also Hebbe, 627 F.3d at 341-42.


                                             2                                    13-15784
      The district court properly dismissed Fisher’s due process claim because

Fisher failed to allege facts that give rise to a liberty interest. See Sandin v.

Conner, 515 U.S. 472, 483-84 (1995) (protected liberty or property interest arises

under Due Process Clause only when a restraint imposes an “atypical and

significant hardship on the inmate in relation to the ordinary incidents of prison

life”); see also Hebbe, 627 F.3d at 341-42.

      We do not consider arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).

      AFFIRMED.




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