                                                                            FILED
                             NOT FOR PUBLICATION                             JAN 21 2011

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




                             FOR THE NINTH CIRCUIT



HOSEA BYRD,                                      No. 09-55522

               Plaintiff - Appellant,            D.C. No. 3:08-CV-01459-DMS-
                                                 AJB
  v.

A. ARIAS; et al.,                                MEMORANDUM *

               Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Southern District of California
                     Dana M. Sabraw, District Judge, Presiding

                            Submitted January 10, 2011 **

Before:        BEEZER, TALLMAN, and CALLAHAN, Circuit Judges.

       California state prisoner Hosea Byrd appeals pro se from the district court’s

judgment dismissing his civil rights action, alleging that defendants violated his

Eighth Amendment and Due Process rights by finding him eligible for double

celling. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a

          *
             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).
dismissal under 28 U.S.C. § 1915(e)(2). Huftile v. Miccio-Fonseca, 410 F.3d

1136, 1138 (9th Cir. 2005). We may affirm on any ground supported by the

record. O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1059 (9th Cir. 2007). We

affirm.

      The district court properly dismissed Byrd’s Eighth Amendment claim

because Byrd’s second amended complaint failed to allege any facts suggesting

that defendants knew of and disregarded an excessive risk to his safety. See

Farmer v. Brennan, 511 U.S. 825, 837 (1994) (to state an Eighth Amendment

claim for deliberate indifference, “the official must both be aware of facts from

which the inference could be drawn that a substantial risk of serious harm exists,

and he must also draw the inference”).

      Byrd failed to allege facts showing that his placement in the Behavior

Modification Unit resulted in a “significant hardship on the inmate in relation to

the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995).

Accordingly, this claim was properly dismissed.

      Byrd’s appeal of the denial of his motion for injunctive relief is moot. See

Mt. Graham Red Squirrel v. Madigan, 954 F.2d 1441, 1450 (9th Cir. 1992) (when

underlying claims have been decided, the reversal of a denial of preliminary

injunction would have no practical consequences, and the issue is therefore moot);


                                          2                                    09-55522
Sec. & Exch. Comm. v. Mt. Vernon Mem’l Park, 664 F.2d 1358, 1361 (9th Cir.

1982) (futile to review a district court’s action on a petition for preliminary relief

where the district court has already issued a decision on the merits).

      We do not consider arguments and allegations raised for the first time on

appeal. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).

      AFFIRMED.




                                            3                                     09-55522
