Ronald R. Santos v. RENEE BAKER, Warden;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RONALD R. SANTOS,
Plaintiff-Appellant,
v.
RENEE BAKER, Warden; et al.,
Defendants-Appellees.
No. 14-17230
D.C. No. 3:14-cv-00386-RCJ-VPC
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Submitted February 14, 2017**
Before: GOODWIN, FARRIS, and FERNANDEZ, Circuit Judges.
Ronald Santos, a Nevada state prisoner, appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging due process and
equal protection claims. We have jurisdiction under 28 U.S.C. § 1291. We review
de novo a dismissal under 28 U.S.C. § 1915A. Hamilton v. Brown, 630 F.3d 889,
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
MAR 3 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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892 (9th Cir. 2011). We affirm.
The district court properly dismissed Santos’s equal protection claim set
forth in Count II because Santos failed to allege facts sufficient to show that he was
treated differently from similarly situated individuals, or discriminated against
based on his membership in a protected class without rational basis. See Vill. of
Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (elements of an equal protection
“class of one” claim); Barren v. Harrington, 152 F.3d 1193, 1194-95 (9th Cir.
1998) (elements of a § 1983 equal protection claim); see also Cousins v. Lockyer,
568 F.3d 1063, 1070 (9th Cir. 2009) (failure to follow internal state prison policies
does not rise to the level of a federal constitutional violation).
The district court properly dismissed Santos’s equal protection claim
challenging the ban on the use of tobacco products set forth in Count III because
Santos failed to allege facts sufficient to show that he is a member of a suspect
class, that tobacco use is a fundamental right, or that the ban does not bear a
rational relation to legitimate governmental objectives. See Webber v. Crabtree,
158 F.3d 460, 461 (9th Cir. 1998) (discussing equal protection claim based on
smoking ban).
The district court did not abuse its discretion in dismissing without leave to

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amend Santos’s due process claim set forth in Count I because amendment would
be futile. United States v. Corinthian Colleges, 655 F.3d 984, 995 (9th Cir. 2011)
(setting forth standard of review and explaining that leave to amend may be denied
if amendment would be futile).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Santos’s requests, set forth in his reply brief, are denied.
AFFIRMED.

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