Robert E. Parkes v. GREG COX, Director of NDOC;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT E. PARKES,
Plaintiff - Appellant,
v.
GREG COX, Director of NDOC; et al.,
Defendants - Appellees.
No. 12-15399
D.C. No. 3:11-cv-00902-LRH-
WGC
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted February 11, 2013**
Before: FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.
Nevada state prisoner Robert E. Parkes appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging constitutional
violations in connection with a fall he sustained in the prison kitchen. We have
FILED
FEB 14 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal under 28
U.S.C. § 1915A. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). We affirm
in part, vacate in part, and remand.
The district court properly dismissed Parkes’s equal protection claim
because Parkes failed to allege facts demonstrating a discriminatory intent. See
Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1026 (9th Cir. 1998)
(equal protection claim “must plead intentional unlawful discrimination or allege
facts that are at least susceptible of an inference of discriminatory intent”).
The district court properly dismissed Parkes’s Eighth Amendment claims
because Parkes failed to allege facts demonstrating that defendants knew of and
disregarded a substantial risk to his safety. See Farmer v. Brennan, 511 U.S. 825,
847 (1994) (a prison official violates the Eighth Amendment prohibition against
inhumane conditions of confinement only if he or she knows of a substantial risk
of serious harm to an inmate and fails to take reasonable measures to avoid the
harm). However, it is not “absolutely clear” that Parkes could not cure this
deficiency through amendment. Cato v. United States, 70 F.3d 1103, 1106 (9th
Cir. 1995) (pro se litigant must be given leave to amend and some notice of the
complaint’s deficiencies unless they are incurable); see also Frost v. Agnos, 152
2

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F.3d 1124, 1129 (9th Cir. 1998) (“Slippery floors without protective measures
could create a sufficient danger to warrant relief.”).
Accordingly, we vacate in part and remand to allow Parkes to file an
amended complaint.
AFFIRMED in part, VACATED in part, and REMANDED.
3

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