Unpublished Disposition, 895 F.2d 1417 (9th Cir. 1990)

MEMORANDUM^** 

Appellant Franklin Miller appeals in pro per the dismissal of his civil rights action against the State of California Department of Corrections. Franklin alleged in his complaint that his dismissal from his position as a probation officer violated his civil rights. Magistrate Volney V. Brown granted a motion for summary judgment in favor of the defendants and Judge Pfaelzer signed the judgment. We affirm.

DISCUSSION

A grant of summary judgment is reviewed de novo. Kruso v. International Telephone & Telegraph Corp., 872 F.2d 1416, 1421 (9th Cir. 1989). We determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Tzung v. State Farm Fire and Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir. 1989).

In his complaint Miller alleged that the defendants had deprived him of a property right, his job with the Corrections Department, without due process. Appellant also alleged that he had been denied equal rights under the law apparently because appellees had discharged him while allowing a co-worker to continue working even though the co-worker also had violated the rules. Finally, appellant alleged that defendants conspired to violate his constitutional rights and that they were "motivated by racial and class-based invidious discriminatory animus."

We affirm the lower court's finding that there was no due process violation. Appellant was denied his job only after an investigation, a hearing before an ALJ and an appeal to the State Personnel Board. These procedures satisfy due process. Cf. Mathews v. Eldridge, 424 U.S. 319, 332-49 (1976).

Appellant asserts these procedures were insufficient because he did not have adequate counsel and the process was biased. Appellant offers no evidence that the proceedings were inadequate. Moreover, he does not refute the basic facts found in the investigation: that he did draw two paychecks simultaneously, that on his State of California Health Questionnaire he claimed he had not missed work because of illness, that later in an investigative interview he admitted he was under the care of a doctor for a stress related condition and had missed work due to that condition, and that his evaluation reports indicated he needed to improve his job performance.

On a motion for summary judgment, appellant cannot rely on conclusory allegations alone to refute appellees' evidence. Mosher v. Saalfeld, 589 F.2d 438, 442 (9th Cir. 1978), cert. denied, 442 U.S. 941 (1979). Without providing evidence of facts demonstrating that the state hearing procedures were so flawed as to reach the level of a due process violation, appellant cannot survive summary judgment.

Likewise, Miller's equal protection claim fails. Miller basically asserts that even if he violated the rules his co-worker committed worse violations and was not discharged. He also asserts that the appellees' actions were motivated by racial hatred. Miller has not produced any evidence that the Corrections Department was selectively enforcing its rules against minorities or even that the co-worker was of a different race than Miller. He also has provided no proof that the Department distinguished in enforcement between Miller and his co-worker for a discriminatory reason. There is no evidence that Miller did not deserve to be discharged or that he was selected for discharge based on an invidious motive.¹  Without any evidence of racially disproportionate impact or a racially discriminatory purpose, there is no colorable equal protection claim. See Washington v. Davis, 426 U.S. 229, 239 (1976).

The magistrate in his findings adopted by Judge Pfaelzer held that even considering the evidence in the light most favorable to Miller there was no genuine issue of material fact. We agree. Summary judgment was proper.

AFFIRMED.