                                                                           FILED
                              NOT FOR PUBLICATION                           JAN 02 2013

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




                              FOR THE NINTH CIRCUIT



JOSE H. CERVANTES,                               No. 12-16196

                Plaintiff - Appellant,           D.C. No. 1:11-cv-00387-BAM

  v.
                                                 MEMORANDUM *
DARREL G. ADAMS, Warden, CSP; et
al.,

                Defendants - Appellees.



                     Appeal from the United States District Court
                         for the Eastern District of California
                   Barbara McAuliffe, Magistrate Judge, Presiding **

                            Submitted December 19, 2012 ***

Before:         GOODWIN, WALLACE, and FISHER, Circuit Judges.

       Jose H. Cervantes, a California state prisoner, appeals pro se from the




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

          **
            Rodriguez consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
          ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging that

defendants violated his constitutional rights. We have jurisdiction under 28 U.S.C.

§ 1291. We review de novo a dismissal under 28 U.S.C. §§ 1915A or 1915(e)(2).

Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); Barren v. Harrington, 152

F.3d 1193, 1194 (9th Cir. 1998) (order). We affirm.

      The district court properly dismissed Cervantes’s due process claims

regarding his gang validation and assignment to the security housing unit (“SHU”)

because, even assuming he had a liberty interest in avoiding indeterminate SHU

confinement, the facts alleged by Cervantes show that he received all the process

that he was due. See Wilkinson v. Austin, 545 U.S. 209, 228-29 (2005) (notice and

opportunity to be heard are adequate procedural safeguards for placement in

maximum custody); Bruce v. Ylst, 351 F.3d 1283, 1287 (9th Cir. 2003) (prison

officials must provide inmate facing gang validation with notice of the charges and

an opportunity to present his views, and decisions must be supported by “some

evidence” with sufficient indicia of reliability).

      The district court properly dismissed Cervantes’s claim that confinement in

the SHU constituted cruel and unusual punishment because Cervantes failed to

allege facts sufficient to show that defendants knew of and disregarded an

excessive risk of harm to his health or safety. See Farmer v. Brennan, 511 U.S.


                                            2                                    12-16196
825, 837 (1994) (“[A] prison official cannot be found liable under the Eighth

Amendment for denying an inmate humane conditions of confinement unless the

official knows of and disregards an excessive risk to inmate health or safety . . . .”).

      The district court properly dismissed Cervantes’s First Amendment claim

challenging the prison’s determination that symbols found in a tattoo on his body

and a drawing in his cell were associated with the Mexican Mafia prison gang and

could serve as source items in his gang validation. See Jones v. N.C. Prisoners’

Labor Union, Inc., 433 U.S. 119, 129-32 (1977) (prison officials may curtail

prisoner’s First Amendment rights if they determine that particular expressive or

associational conduct has a “likelihood of disruption to prison order or stability, or

otherwise interfere[s] with [] legitimate penological objectives”).

      The district court did not abuse its discretion by denying Cervantes’s motion

for appointment of counsel because Cervantes failed to demonstrate exceptional

circumstances. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting

forth standard of review and requirement of “exceptional circumstances” for

appointment of counsel).

      Cervantes’s contentions concerning alleged violations of California

Department of Corrections and Rehabilitation policies are unavailing.

      AFFIRMED.


                                           3                                     12-16196
