Jason Scott Harper v. Arnold Schwarzenegger;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JASON SCOTT HARPER,
Plaintiff - Appellant,
v.
ARNOLD SCHWARZENEGGER; et al.,
Defendants - Appellees.
No. 14-15327
D.C. No. 1:10-cv-00926-LJO-GSA
MEMORANDUM*
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
FILED
AUG 20 2015
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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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

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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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