Mike Murphy v. Butch Otter

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MIKE MURPHY,
Plaintiff - Appellant,
v.
BUTCH OTTER; DIRK KEMPTHORNE;
L. LAMONT ANDERSON; PAUL
PANTHER; CAROLEE KELLY; IDAHO
DEPARTMENT OF CORRECTIONS;
IDAHO BOARD OF PARDONS AND
PAROLE; STATE OF IDAHO,
Defendants - Appellees.
No. 12-35041
D.C. No. 1:11-cv-00453-LMB
MEMORANDUM*
Appeal from the United States District Court
for the District of Idaho
Larry M. Boyle, Magistrate Judge, Presiding
Argued and Submitted July 9, 2014
Seattle, Washington
Before: ALARCÓN, KLEINFELD, and MURGUIA, Circuit Judges.
FILED
AUG 04 2014
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.

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Plaintiff-appellant Mike Murphy appeals the district court’s dismissal with
prejudice of his pro se complaint. We have jurisdiction under 28 U.S.C. § 1291,
and we affirm in part, reverse in part, and remand.
Murphy, an inmate in the custody of the Idaho Department of Corrections,
brought a 42 U.S.C. § 1983 suit asserting several claims, among them due process
claims and an equal protection claim, against Idaho Governor Butch Otter, the
Idaho Department of Corrections, and other State defendants. In dismissing the
complaint under 28 U.S.C. § 1915A, the district court considered only Murphy’s
claims that he had a right under various international accords to be transferred to a
facility in Canada and a due process right to be so transferred. Murphy contends
on appeal that the district court erred in failing to address his due process claim
arising out of his alleged mediation agreement with the State of Idaho and his equal
protection claim that Mexican nationals were favored in the transfer process.
Murphy also argues that the district court erred in denying him any opportunity to
amend his complaint.
Although the district court correctly ruled that Murphy has no due process
right to a transfer, the court failed to determine whether Murphy stated a due
process claim for relief arising out of the State of Idaho’s alleged violation of its
mediation agreement with Murphy or an equal protection claim based on the
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alleged preferential treatment afforded Mexican nationals. Moreover, a district
court should grant leave to amend “unless it determines that the pleading could not
possibly be cured by the allegation of other facts.” Silva v. Di Vittorio, 658 F.3d
1090, 1105 (9th Cir. 2011) (internal quotation marks omitted). Murphy could
potentially allege facts to state both a due process claim based on his mediation
agreement, if there was one, and an equal protection claim based on nationality or
ethnicity, if facts support such a claim. See Smith v. Sumner, 994 F.2d 1401, 1406
(9th Cir. 1993) (noting that an agreement between a state and an inmate can create
a protected liberty interest, the violation of which can give rise to a due process
claim); see also Johnson v. California, 543 U.S. 499, 502, 509, 515 (2005)
(recognizing equal protection claim stemming from race- or ethnicity-based
classifications in a correctional setting). Accordingly, the district court abused its
discretion in denying leave to amend. See Silva, 658 F.3d at 1105.
We thus vacate the judgment and remand so that the district court may
permit Murphy to amend his complaint to allege, if supporting facts exist, (1) a due
process claim arising out of the violation of his mediation agreement with the State
of Idaho, and (2) an equal protection claim based on the preferential treatment of
certain inmates in the transfer process. The district court should also provide
notice to Murphy of the deficiencies in his complaint “in order to ensure that [he]
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uses the opportunity to amend effectively.” Ferdik v. Bonzelet, 963 F.2d 1258,
1261 (9th Cir. 1992).
Murphy’s request for judicial notice is denied as unnecessary to the
resolution of issues on appeal. Cf. Flick v. Liberty Mut. Fire Ins. Co., 205 F.3d
386, 392 n.7 (9th Cir. 2000).
AFFIRMED IN PART, REVERSED IN PART, and REMANDED.
Murphy shall bear his own costs on appeal.
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