                                                                              FILED
                           NOT FOR PUBLICATION                                 AUG 18 2010

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



                            FOR THE NINTH CIRCUIT

KARLUK MAYWEATHERS, AKA                          No. 08-56835
Karluk Khan Mayweathers,
                                                 D.C. No. 3:05-cv-00713-WQH-
              Plaintiff - Appellant,             CAB

  v.
                                                 MEMORANDUM *
J. S. WOODFORD, Director of
Corrections; et al.,

              Defendants - Appellees.


                    Appeal from the United States District Court
                      for the Southern District of California
                    William Q. Hayes, District Judge, Presiding

                             Submitted May 4, 2010**

Before: HUG, SKOPIL and BEEZER, Circuit Judges.

       Karluk Mayweathers, a California state prisoner, appeals pro se the district

court’s grant of summary judgment to prison officials in this civil rights action.

We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.


        *
             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).
      We start by determining what issues have been preserved for appeal. It is

clear that Mayweathers challenges the district court’s ruling that prison officials

are entitled to qualified immunity on his claim that using race as a factor in

assigning cellmates is an equal protection violation. It is also clear he seeks

review of the district court’s denial of his request for an injunction that would

prohibit the prison from assigning him a cellmate based on race. Although he

may seek review of other issues raised in the district court, we conclude no other

issues are properly before us. Issues mentioned in an opening brief, but not

argued, are deemed abandoned. See Greenwood v. F.A.A., 28 F.3d 971, 977 (9th

Cir. 1994). Accordingly, we confine our review to the issues of qualified

immunity and the availability of injunctive relief.

1.    Qualified Immunity

      Qualified immunity protects government workers from civil liability if

“their conduct does not violate clearly established statutory or constitutional rights

of which a reasonable person would have known.” Cousins v. Lockyer, 568 F.3d

1063, 1069 (9th Cir. 2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)). When Mayweathers was assigned his cellmate, the law was not clearly

established that considering an inmate’s race violates equal protection. Rather,



                                         -2-
such a policy was then regarded as “undoubtedly a legitimate penological interest”

related to prison security. See Johnson v. California, 321 F.3d 791, 799 (9th Cir.

2003). Although Johnson was later overruled by the Supreme Court, Johnson v.

California, 543 U.S. 499, 515 (2005) (holding strict scrutiny should be applied to

such racial classifications), prison officials at the time would have reasonably

believed their policy did not violate Mayweathers’ equal protection rights.

Accordingly, the officials are entitled to qualified immunity. See Walker v.

Gomez, 370 F.3d 969, 978 (9th Cir. 2004) (holding prison officials are entitled to

qualified immunity if it was not clearly established that race-based differentiation

is unconstitutional).

      We reject Mayweathers’ argument that prison officials should have known

their policy violated equal protection because various international treaties

prohibit racial segregation. Although deprivations of treaty-based rights may be

actionable and therefore call into play the availability of a qualified immunity

defense, see Romero v. Kitsap County, 931 F.2d 624, 627 n.5 (9th Cir. 1991), we

agree with the district court that the treaties at issue here do not give rise to private

rights of action. See, e.g., Cornejo v. County of San Diego, 504 F.3d 853, 857

(9th Cir. 2007).



                                           -3-
2.    Injunctive Relief

      Qualified immunity does not preclude Mayweathers’ request for injunctive

relief. See Walker, 370 F.3d at 978. Nonetheless, we conclude that Mayweathers

has not carried his burden of showing “that he faces a real or immediate threat . . .

that he will again be wronged in a similar way.” See Mayfield v. United States,

599 F.3d 964, 970 (9th Cir. 2010) (internal quotation marks omitted). As the

district court noted, the prison has stopped using race as a factor in housing

inmates and Mayweathers has been transferred to a dormitory facility.

      AFFIRMED.1




      1
             Mayweathers’ request for an appointment of appellate counsel is
denied. There are no exceptional circumstances that merit an appointment of
counsel. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009), cert. denied,
130 S. Ct. 1282 (2010).

                                         -4-
