TONY ASBERRY V. PHELPS, No. 13-16899 (9th Cir. 2014)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS DEC 04 2014 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT TONY ASBERRY, No. 13-16899 Plaintiff - Appellant, D.C. No. 2:09-cv-01494-MCEKJN v. MEMORANDUM* PHELPS, Defendant - Appellee. Appeal from the United States District Court for the Eastern District of California Morrison C. England, Jr., Chief Judge, Presiding Submitted November 18, 2014** Before: LEAVY, FISHER, and N.R. SMITH, Circuit Judges. California state prisoner Tony Asberry appeals pro se from the district court’s summary judgment in his 42 U.S.C. § 1983 action alleging violations of his right to equal protection under the Fourteenth Amendment in connection with his prison housing assignments. We have jurisdiction under 28 U.S.C. § 1291. We * 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). review de novo, FDIC v. Henderson, 940 F.2d 465, 471 (1991), and we affirm. The district court properly granted summary judgment because Asberry failed to raise a genuine dispute of material fact as to whether defendant intentionally discriminated against him on the basis of race. See Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order) (a § 1983 equal protection claim requires showing that the defendant “acted with an intent or purpose to discriminate against the plaintiff based upon membership in a protected class”); see also Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1061 (9th Cir. 2011) (“To survive summary judgment, a plaintiff must set forth non-speculative evidence of specific facts, not sweeping conclusory allegations.”). We do not consider matters not specifically and distinctly raised and argued in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam). Defendant’s unopposed motion to supplement the record, filed on June 9, 2014, is granted. AFFIRMED. 2 13-16899

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