Antonio Alejandro Gutierrez v. MAX WILLIAMS, Director Oregon Department of Corrections;

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTONIO ALEJANDRO GUTIERREZ,
Plaintiff - Appellant,
v.
MAX WILLIAMS, Director Oregon
Department of Corrections; et al.,
Defendants - Appellees.
No. 12-35158
D.C. No. 3:09-cv-06204-KI
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Garr M. King, District Judge, Presiding
Submitted January 15, 2013**
Before: SILVERMAN, BEA, and NGUYEN, Circuit Judges.
Oregon state prisoner Antonio Alejandro Gutierrez appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging that
defendants violated his constitutional rights by selling him defective shoes in the
FILED
JAN 17 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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prison commissary. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo the district court’s dismissal under Fed. R. Civ. P. 12(b)(6). Watson v.
Weeks, 436 F.3d 1152, 1157 (9th Cir. 2006). We may affirm on any ground
supported by the record. Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116,
1121 (9th Cir. 2008). We affirm.
The district court properly dismissed Gutierrez’s Eighth Amendment claim
because Gutierrez failed to allege facts showing a “sufficiently serious” deprivation
or that defendants acted with a “sufficiently culpable state of mind.” Farmer v.
Brennan, 511 U.S. 825, 834 (1994) (outlining elements of an Eighth Amendment
violation).
Dismissal of Gutierrez’s due process claim was proper because Gutierrez has
an adequate post-deprivation remedy under Oregon state law. See Barnett v.
Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (per curiam) (“[A] negligent or
intentional deprivation of a prisoner’s property fails to state a claim under section
1983 if the state has an adequate post deprivation remedy.”); see also Or. Rev. Stat.
§ 30.260 et seq.
Dismissal of Gutierrez’s equal protection claim was proper because
Gutierrez failed to allege facts demonstrating that defendants acted with the intent
to discriminate against him on the basis of his membership in a protected class.

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See Thornton v. City of St. Helens, 425 F.3d 1158, 1166-67 (9th Cir. 2005); see
also Rodriguez v. Cook, 169 F.3d 1176, 1179 (9th Cir. 1999) (indigent prisoners
are not a suspect class).
AFFIRMED.

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