                                                                           FILED
                             NOT FOR PUBLICATION                            MAR 05 2010

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



 ROGER GORDON,                                   No. 09-15438

               Plaintiff - Appellant,            D.C. No. 3:08-cv-03341-SI

   v.
                                                 MEMORANDUM *
 STATE BAR OF CALIFORNIA,
 Committee on Bar Examiners; et al.,

               Defendants - Appellees.



                     Appeal from the United States District Court
                       for the Northern District of California
                       Susan Illston, District Judge, Presiding

                            Submitted February 16, 2010 **


Before:        FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.

        Roger Gordon appeals pro se from the judgment dismissing his 42 U.S.C.

§ 1983 action for failure to state a claim. We have jurisdiction under 28 U.S.C.

          *
             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).

EN/Research
§ 1291. We review de novo, Cholla Ready Mix, Inc. v. Civish, 382 F.3d 969, 973

(9th Cir. 2004), and we affirm.

       The district court properly dismissed Gordon’s due process claim because he

had not sought review by the California Supreme Court. See Giannini v. Comm. of

Bar Examiners of State Bar of Cal., 847 F.2d 1434, 1435 (9th Cir. 1988) (per

curiam) (“Under California law, only the state supreme court, not the Committee of

Bar Examiners, has the authority to grant or deny admission to the bar.”); see also

Chaney v. State Bar of Cal., 386 F.2d 962, 966 (9th Cir. 1967) (“An applicant

seeking review of a decision by the Committee must file a petition for review by

the California Supreme Court.”). “Until such review is completed, an applicant has

no basis for any claim of deprivation under federal law because no deprivation has

taken place.” Giannini, 847 F.2d at 1435.

       The district court properly dismissed Gordon’s equal protection claim

because he failed to allege that persons similarly situated suffered unequal

treatment or that defendants acted with intent to discriminate based on his

membership in a protected class. See Thornton v. City of St. Helens, 425 F.3d

1158, 1166 (9th Cir. 2005) (affirming that the plaintiff must allege that defendants

“acted with an intent or purpose to discriminate against the plaintiff based upon

membership in a protected class”).


EN/Research                                 2                                  09-15438
       The district court properly dismissed Gordon’s First Amendment claim

because attending an ABA-accredited school is not the only path for qualifying for

the California state bar examination and Gordon is not deprived of his right not to

associate with an ABA-accredited school. See Cal. Bus & Prof Code § 6060(e)

(outlining several alternative paths for qualifying to sit for the state bar

examination); see also Besig v. Dolphin Boating & Swimming Club, 683 F.2d

1271, 1276 (9th Cir. 1982) (rejecting plaintiffs’ First Amendment claim brought

under nonassociation theory where membership in club may have been more

favorable but was not mandatory to access desired facilities).

       Gordon’s remaining contentions are unpersuasive.

       AFFIRMED.




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