RODOLFO R. MIRAMONTES, Jr. v. HERBE DEL CRUZ, Officer;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RODOLFO R. MIRAMONTES, Jr.,
Plaintiff-Appellant,
v.
HERBE DEL CRUZ, Officer; et al.,
Defendants-Appellees.
No. 10-17510
D.C. No. 3:08-cv-05639-CRB
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding
Submitted September 26, 2017**
Before: SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges.
California state prisoner Rudolfo R. Miramontes, Jr., appeals pro se from the
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging due
process violations arising out of his placement in protective custody at the Santa
Clara County Jail while he was a pretrial detainee. We have jurisdiction under 28
* 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
OCT 3 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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U.S.C. § 1291. We review de novo. Nev. Dep’t of Corrs. v. Greene, 648 F.3d
1014, 1018 (9th Cir. 2011). We may affirm on any basis supported by the record.
Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008).
We affirm.
The district court properly granted summary judgment on Miramontes’ due
process claim because Miramontes failed to establish a genuine dispute of material
fact as to whether his placement in protective custody was not reasonably related to
the jail’s legitimate objectives of maintaining safety and security. See Bell v.
Wolfish, 441 U.S. 520, 538-39 (1979) (“Absent a showing of an expressed intent to
punish on the part of detention facility officials . . . if a particular condition or
restriction of pretrial detention is reasonably related to a legitimate governmental
objective, it does not, without more, amount to punishment.” (citations and internal
quotation marks omitted)). Summary judgment on this claim was also proper
because Miramontes failed to establish that he has a protectable liberty interest
created by California law. See Pierce v. County of Orange, 526 F.3d 1190, 1205
(9th Cir. 2008) (“For a state statute or regulation to create a liberty interest
protected by the Constitution . . . [f]irst, the law must set forth substantive
predicates to govern official decision making and, second, it must contain
explicitly mandatory language, i.e., a specific directive to the decision-maker that
mandates a particular outcome if the substantive predicates have been met.”

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(citation and internal quotations marks omitted)).
Summary judgment on Miramontes’ equal protection claim was proper
because Miramontes failed to raise a genuine dispute of material fact as to whether
he was intentionally treated differently from other similarly situated detainees and
suffered intentional discrimination on the basis of his membership in a protected
class. See Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000) (equal
protection “class of one” claim requires alleging that plaintiff “has been
intentionally treated differently from others similarly situated and that there is no
rational basis for the difference in treatment”); Serrano v. Francis, 345 F.3d 1071,
1082 (9th Cir. 2003) (setting forth requirements for equal protection discrimination
claim based on membership in a protected class).
Dismissal of Miramontes’ excessive force claim was proper because
Miramontes failed to allege facts sufficient to show that defendants used an
objectively unreasonable amount of force in placing Miramontes in protective
custody. See Kingsley v. Hendrickson, 135 S. Ct. 2466, 2473 (2015) (“[A] pretrial
detainee must show only that the force purposely or knowingly used against him
was objectively unreasonable.”).
We do not consider issues not specifically and distinctly raised and argued in
the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
We do not consider facts or documents not presented to the district

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court. See United States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) (“Documents
or facts not presented to the district court are not part of the record on appeal.”).
Miramontes’ “Motion to be exempt from giving notice” (Docket Entry No.
18) is denied as moot.
AFFIRMED.

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