                                                                           FILED
                            NOT FOR PUBLICATION                             FEB 2 2015

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



                             FOR THE NINTH CIRCUIT


EDWARD VINCENT RAY, Jr.,                         No. 14-55205

               Plaintiff - Appellant,            D.C. No. 5:10-cv-00942-VAP-
                                                 PJW
  v.

GREG SCHOO, Lieutenant at Chino                  MEMORANDUM*
Institute for Men (CIM),

               Defendant - Appellee.


                    Appeal from the United States District Court
                        for the Central District of California
                    Virginia A. Phillips, District Judge, Presiding

                            Submitted January 21, 2015**

Before:        CANBY, GOULD, and N.R. SMITH, Circuit Judges.

       Edward Vincent Ray, Jr., appeals pro se from the district court’s judgment

dismissing his 42 U.S.C. § 1983 action alleging various constitutional violations in

connection with his housing as a layover inmate at the California Institute for Men.


          *
             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 have jurisdiction under 28 U.S.C. § 1291. We review de novo. Hebbe v.

Pliler, 627 F.3d 338, 341 (9th Cir. 2010) (dismissal under Fed. R. Civ.

P. 12(b)(6)). We affirm.

      The district court properly dismissed Ray’s Eighth Amendment claims

because Ray failed to allege facts sufficient to show that defendant disregarded a

substantial risk of serious harm to Ray when he was temporarily housed outside, or

in a holding cell. See Graves v. Arpaio, 623 F.3d 1043, 1049 (9th Cir. 2010) (per

curiam) (Eighth Amendment guarantees only adequate heat, not a comfortable

temperature; “[o]ne measure of an inadequate, as opposed to merely

uncomfortable, temperature is that it poses a substantial risk of serious harm”

(citations and internal quotation marks omitted)); Hoptowit v. Ray, 682 F.2d 1237,

1258 (9th Cir. 1982), abrogated on other grounds by Sandin v. Conner, 515 U.S.

472 (1995) (court may consider the length of time a prisoner must go without

benefits).

      The district court properly dismissed Ray’s due process claims because Ray

failed to allege facts sufficient to identify a protected liberty or property interest of

which he was deprived. See Sandin, 515 U.S. at 486 (holding that discipline in

segregated confinement did not present the type of atypical, significant deprivation

in which a state might conceivably create a liberty interest); Ward v. Ryan, 623


                                            2                                      14-55205
F.3d 807, 813 (9th Cir. 2010) (to establish a due process violation, an inmate must

demonstrate that he has been deprived of a protected liberty or property interest by

arbitrary government action).

      We do not consider matters not specifically and distinctly raised and argued

in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

      AFFIRMED.




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