Larry D. Hines, Plaintiff-appellant, v. Don Abney, et al., Defendant-appellee, 949 F.2d 399 (9th Cir. 1991)

MEMORANDUM^** 

Because Larry Hines failed to demonstrate an injury, the district court properly granted summary judgment as to the eighth amendment claims based on Don Abney's threats and the alleged duty to protect. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir. 1982). As the court also recognized, Hines' inability to prove retaliation was fatal to his other eighth amendment claim. See Celotex, 477 U.S. at 322; McDonald v. Hall, 610 F.2d 16, 18 (1st Cir. 1979).

With respect to his fourteenth amendment arguments, the district court accurately determined that Hines lacked a protected interest in his position, and thus could not state a due process claim. See Toussaint v. McCarthy, 801 F.2d 1080, 1094-95 (9th Cir. 1986), cert. denied, 481 U.S. 1069 (1987). Likewise, Hines' failure to show that a similarly situated inmate received different treatment was properly decisive of his equal protection claim. Finally, the district court correctly granted summary judgment against Hines on his fifth amendment claim, because the double jeopardy clause does not apply to prison disciplinary proceedings. See Kerns v. Parratt, 672 F.2d 690, 691-92 (8th Cir. 1982).

AFFIRMED.