Travon Thompson v. RON HOOPS, Sheriff

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TRAVON THOMPSON,
Plaintiff - Appellant,
v.
RON HOOPS, Sheriff,
Defendant,
and
D. BOLOT, Facility Administrator; et al.,
Defendants - Appellees.
No. 12-55277
D.C. No. 5:11-cv-01535-MMM-
MLG
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Margaret M. Morrow, District Judge, Presiding
Submitted February 11, 2013**
Before: FERNANDEZ, TASHIMA, and WARDLAW, Circuit Judges.
FILED
FEB 19 2013
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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Travon Thompson appeals pro se from the district court’s judgment
dismissing his 42 U.S.C. § 1983 action alleging access-to-courts, equal protection,
due process, and free exercise claims arising during his pretrial detention. We
have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal for
failure to state a claim under 28 U.S.C. § 1915(e)(2)(B)(ii). Barren v. Harrington,
152 F.3d 1193, 1194 (9th Cir. 1998) (order). We affirm in part, vacate in part, and
remand.
The district court properly dismissed Thompson’s access-to-courts claim
because Thompson failed to allege actual injury. See Lewis v. Casey, 518 U.S.
343, 348-49 (1996) (access-to-courts claim requires actual prejudice to
contemplated or existing litigation, such as inability to meet a filing deadline or to
present a claim).
The district court properly dismissed Thompson’s equal protection claim
because Thompson 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. See Thornton v. City of St. Helens, 425 F.3d 1158, 1166-67 (9th Cir. 2005)
(explaining requirements for stating an equal protection claim).
The district court properly dismissed Thompson’s due process claim because
Thompson failed to allege facts showing that his limited access to the common
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room amounted to punishment. See Bell v. Wolfish, 441 U.S. 520, 536-37 (1979)
(pretrial detainees may be subjected “to the restrictions and conditions of the
detention facility so long as those conditions and restrictions do not amount to
punishment, or otherwise violate the Constitution”); Clouthier v County of Contra
Costa, 591 F.3d 1232, 1242 (9th Cir. 2010) (“The key question in determining
whether particular restrictions and conditions accompanying pretrial detention
amount to punishment in the constitutional sense of that word, is whether the
restrictions evince a punitive purpose or intent.” (citation and internal quotation
marks omitted)).
However, dismissal of Thompson’s free exercise claim was improper. In its
order filed on November 10, 2011, the district court determined that Thompson’s
First Amended Complaint stated a cognizable free exercise claim, and informed
Thompson that, if his Second Amended Complaint failed properly to plead any
other causes of action, it would serve defendants Henning and Bolot with the free
exercise claim. Accordingly, we vacate and remand to allow the district court to
do so.
Thompson’s second motion for appointment of counsel is denied.
AFFIRMED in part, VACATED in part, and REMANDED.
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