David L. Mathis v. J. Salazar

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID L. MATHIS,
Petitioner-Appellant,
v.
J. SALAZAR,
Respondent-Appellee.
No. 17-15646
D.C. No. 2:17-cv-00052-AC
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Allison Claire, Magistrate Judge, Presiding**
Submitted January 16, 2018***
Before: REINHARDT, TROTT, and HURWITZ, Circuit Judges.
Federal prisoner David Mathis appeals pro se from the district court’s
judgment denying his 28 U.S.C. § 2241 habeas petition. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo a district court’s denial of a section
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
*** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
JAN 19 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2241 habeas petition, see Tablada v. Thomas, 533 F.3d 800, 805 (9th Cir. 2008),
and we affirm.
Mathis argues that the two-hour watch program at FCI Herlong, which
requires higher risk prisoners to report to staff every two hours during the day and
when moving from one location in the prison to another, violates his due process
and equal protection rights. Mathis’s due process claims fail because the two-hour
watch program does not implicate a liberty interest protected by the Due Process
Clause. See Sandin v. Conner, 515 U.S. 472, 484 (1995) (explaining that liberty
interests are implicated where a restraint exceeds the sentence “in such an
unexpected manner as to give rise to protection by the Due Process Clause of its
own force” or “imposes atypical and significant hardship on the inmate in relation
to the ordinary incidents of prison life”); Moody v. Daggett, 429 U.S. 78, 88 n.9
(1976) (noting not “every state action carrying adverse consequences for prison
inmates automatically activates a due process right”).
Mathis’s equal protection challenge to the two-hour watch program also fails
because he has not alleged that the prison’s placement of inmates into the program
“affect[s] fundamental rights [or] proceed[s] along suspect lines,” Heller v. Doe,
509 U.S. 312, 319 (1993), and we perceive a rational basis for requiring higher risk
inmates to report to staff more frequently, see, e.g., McLean v. Crabtree, 173 F.3d
1176, 1186 (9th Cir. 1999) (concluding the Bureau of Prisons had a rational basis

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for excluding inmates with detainers from sentence reduction eligibility).
Mathis’s claim that the district court erred when it denied his petition
without leave to amend, raised for the first time in his reply brief, is waived. See
Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1213 (9th Cir. 2017).
AFFIRMED.

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