JASON HARPER V. ARNOLD SCHWARZENEGGER, No. 14-15327 (9th Cir. 2015)
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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT AUG 20 2015 MOLLY C. DWYER, CLERK JASON SCOTT HARPER, Plaintiff - Appellant, No. 14-15327 U.S. COURT OF APPEALS D.C. No. 1:10-cv-00926-LJO-GSA v. MEMORANDUM* ARNOLD SCHWARZENEGGER; et al., Defendants - Appellees. Appeal from the United States District Court for the Eastern District of California Lawrence J. O’Neill, District Judge, Presiding Submitted August 18, 2015** San Francisco, California Before: CLIFTON, N.R. SMITH, and CHRISTEN, Circuit Judges. Jason Scott Harper appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging that prison officials failed to * 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). protect him from assault by his cellmates. We have jurisdiction under 28 U.S.C. § 1291 and we affirm. The district court properly dismissed Harper’s action for failure to state a claim. See Wilhelm v. Rotman, 680 F.3d 1113, 1118 (9th Cir. 2012) (explaining we review de novo an order dismissing a prisoner complaint under 28 U.S.C. § 1915A for failure to state a claim). The record demonstrates Harper failed to plead facts sufficient to sustain a plausible Eighth Amendment violation claim. See Lemire v. Cal. Dep’t of Corr. & Rehab., 726 F.3d 1062, 1074 (9th Cir. 2013) (setting forth three-part inquiry into failure-to-protect claim). First, Harper failed to allege facts demonstrating he was “incarcerated under conditions posing a substantial risk of serious harm.” Id. at 1075. Second, Harper failed to show that Defendants “kn[ew] of and disregard[ed] an excessive risk to [Harper’s] health or safety.” Farmer v. Brennan, 511 U.S. 825, 837 (1994). Additionally, Harper’s Due Process rights were not implicated, because Harper does not have a protected liberty interest in single-cell status classification. See Wilkinson v. Austin, 545 U.S. 209, 221 (2005); Myron v. Terhune, 476 F.3d 716, 718 (9th Cir. 2007). The district court did not abuse its discretion by denying Harper leave to file a Fifth Amended Complaint, because after granting four amendments to the complaint, granting a fifth would be futile. See Cervantes v. Countrywide Home 2 Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting forth standard of review and noting that district court may dismiss without leave to amend when amendment would be futile); Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992) (district court’s discretion to deny leave to amend is particularly broad where it has afforded plaintiff one or more opportunities to amend). AFFIRMED. 3
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