                                                                           FILED
                            NOT FOR PUBLICATION                             OCT 7 2014

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



                             FOR THE NINTH CIRCUIT


JOHNNY LEE WARREN,                               No. 13-15890

               Plaintiff - Appellant,            D.C. No. 4:11-cv-00340-FRZ

  v.
                                                 MEMORANDUM*
CLARENCE W. DUPNIK, et al.,

               Defendants - Appellees.


                    Appeal from the United States District Court
                             for the District of Arizona
                     Frank R. Zapata, District Judge, Presiding

                           Submitted September 23, 2014**

Before:        W. FLETCHER, RAWLINSON, and CHRISTEN, Circuit Judges.

       Arizona state prisoner Johnny Lee Warren appeals pro se from the district

court’s judgment in his 42 U.S.C. § 1983 action alleging constitutional violations

while in county detention. We have jurisdiction under 28 U.S.C. § 1291. We

review de novo. Bruce v. Ylst, 351 F.3d 1283, 1287 (9th Cir. 2003) (summary

          *
             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).
judgment); Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (dismissal under

28 U.S.C. § 1915A). We may affirm on any basis supported by the record,

Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008),

and we affirm.

      The district court properly granted summary judgment on Warren’s First

Amendment claim regarding the 28-day period while Warren awaited approval for

a pork-free diet because Warren failed to raise a genuine dispute of material fact as

to whether the verification requirements were not reasonably related to legitimate

penological interests and unduly burdened Warren’s ability to exercise his religion.

See Resnick v. Adams, 348 F.3d 763, 768-71 (9th Cir. 2003) (requiring an

application to provide a religious diet does not unduly burden a prisoner’s right to

practice his religion); Ward v. Walsh, 1 F.3d 873, 877 (9th Cir. 1993) (recognizing

simplified food service as a legitimate penological interest); see also Starr v. Baca,

652 F.3d 1202, 1207 (9th Cir. 2011) (discussing the requirements for establishing

supervisory liability).

      The district court did not abuse its discretion by granting summary judgment

without ordering further discovery because Warren did not establish how

additional discovery would have affected the disposition of his case. See Fed. R.

Civ. P. 56(d); Barona Grp. of the Capitan Grande Band of Mission Indians v. Am.


                                           2                                    13-15890
Mgmt. & Amusement, Inc., 840 F.2d 1394, 1399-1400 (9th Cir. 1987) (setting forth

standard of review and explaining that movant must show specific facts he hopes

to discover and how those facts would preclude summary judgment).

      Dismissal of Warren’s Eighth Amendment claims was proper because

Warren failed to allege facts sufficient to show that he was placed at substantial

risk of serious harm by the 28-day delay in approval of a pork-free diet. See

Farmer v. Brennan, 511 U.S. 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. . . .”); LeMaire v. Maass, 12 F.3d 1444, 1456 (9th Cir. 1993)

(Eighth Amendment requires only that prisoners receive food that is adequate to

maintain health).

      Dismissal of Warren’s equal protection claim was proper because Warren

failed to allege facts sufficient to show that defendants intentionally discriminated

against him based on his religion by not offering Friday religious services. See

Thornton v. City of St. Helens, 425 F.3d 1158, 1166 (9th Cir. 2005) (to state an

equal protection claim, “a plaintiff must show that the defendants acted with an

intent or purpose to discriminate against the plaintiff based upon membership in a

protected class” (citation and internal quotation marks omitted)); see also Cruz v.


                                           3                                    13-15890
Beto, 405 U.S. 319, 322 n.2 (1972) (per curiam) (a prisoner’s reasonable

opportunity to pursue his faith does not ensure facilities or personnel identical to

other religious groups).

      We reject Warren’s contention that the district court erred by not considering

on summary judgment his unsupported claim that the 28-day delay caused him to

develop additional health problems, or by not considering his alleged state

constitutional claims.

      Warren’s motion for appointment of appellate counsel, filed on July 21,

2014, is denied.

      AFFIRMED.




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