                                                                           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                            NOT FOR PUBLICATION                            APR 14 2014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


RICHARD E. GALLO,                                No. 13-15543

               Plaintiff - Appellant,            D.C. No. 2:11-cv-01080-PMP-
                                                 CWH
  v.

CHERYL BURSON, Associate Warden of               MEMORANDUM*
Programs; et al.,

               Defendants - Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                      Philip M. Pro, District Judge, Presiding

                              Submitted April 7, 2014**

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

       Nevada state prisoner Richard E. Gallo appeals pro se from the district

court’s judgment dismissing his 42 U.S.C. § 1983 action alleging First, Eighth, and

Fourteenth Amendment claims concerning his placement in administrative and


          *
             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).
disciplinary segregation. We have jurisdiction under 28 U.S.C. § 1291. We

review de novo a dismissal for failure to state a claim under 28 U.S.C. § 1915A,

Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and may affirm on any

ground supported by the record, Johnson v. Riverside Healthcare Sys., LP, 534

F.3d 1116, 1121 (9th Cir. 2008). We affirm.

      The district court properly dismissed Gallo’s retaliation claims concerning

his placement in segregation and his inability to get the proper grievance forms

because Gallo failed to allege facts showing that defendants acted with retaliatory

intent to chill his exercise of protected conduct, or that their actions and policies

did not advance valid correctional goals. See Rhodes v. Robinson, 408 F.3d 559,

567-68 (9th Cir. 2005) (setting forth elements of retaliation claim).

      The district court properly dismissed Gallo’s due process claims because,

even assuming that Gallo’s placement in administrative or disciplinary segregation

implicated a protected liberty interest because it accompanied at loss of privileges

and the brief confiscation of his appliances, Gallo admitted that he received all the

process he was due. See Wolff v. McDonnell, 418 U.S. 539, 564-67 (1974) (where

liberty interest is implicated, prison officials must provide advance written notice

of the claimed violation; a written statement as to the evidence relied upon and the

reasons for the disciplinary action taken; and a limited right for inmates to call


                                            2                                     13-15543
witnesses and present documentary evidence in their defense).

      Dismissal of Gallo’s cruel and unusual punishment claims was proper

because Gallo failed to allege facts showing that his placement in administrative or

disciplinary segregation posed a substantial risk of serious harm to his health or

safety, or denied him “the minimal civilized measure of life’s necessities.” Rhodes

v. Chapman, 452 U.S. 337, 347 (1981); see also Farmer v. Brennan, 511 U.S. 825,

834 (1994) (for Eighth Amendment claim, plaintiff must allege that defendants

deliberately ignored a substantial risk of serious harm to his health or safety).

      The district court properly dismissed Gallo’s equal protection claims

because Gallo failed to allege facts showing that defendants’ policy regarding

“convenience bed moves” resulted in treating him differently from others similarly

situated without a rational basis or discriminated against him based on his

membership in a protected class. See Village of Willowbrook v. Olech, 528 U.S.

562, 564 (2000) (per curiam) (standard for “class of one” equal protection claim);

Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003) (requirements for § 1983

equal protection claim based on membership in protected class).

      The district court did not abuse its discretion by denying Gallo’s request for

further leave to amend his claims because such relief would have been futile. See

Mirmehdi v. United States, 689 F.3d 975, 985 (9th Cir. 2012) (a party is not


                                           3                                        13-15543
entitled to amend its complaint if amendment would be futile); Chodos v. West

Publ’g Co., 292 F.3d 992, 1003 (9th Cir. 2002) (setting forth standard of review,

and noting that the court’s discretion to deny leave to amend is particularly broad

where plaintiff has previously amended the complaint).

      Defendants’ motion to strike a portion of the reply brief is denied.

      AFFIRMED.




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