The opinion
FILED
NOT FOR PUBLICATION AUG 18 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
KARLUK MAYWEATHERS, AKA No. 08-56835
Karluk Khan Mayweathers,
D.C. No. 3:05-cv-00713-WQH-
Plaintiff - Appellant, CAB
v.
MEMORANDUM *
J. S. WOODFORD, Director of
Corrections; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Submitted May 4, 2010**
Before: HUG, SKOPIL and BEEZER, Circuit Judges.
Karluk Mayweathers, a California state prisoner, appeals pro se the district
court’s grant of summary judgment to prison officials in this civil rights action.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
*
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).
We start by determining what issues have been preserved for appeal. It is
clear that Mayweathers challenges the district court’s ruling that prison officials
are entitled to qualified immunity on his claim that using race as a factor in
assigning cellmates is an equal protection violation. It is also clear he seeks
review of the district court’s denial of his request for an injunction that would
prohibit the prison from assigning him a cellmate based on race. Although he
may seek review of other issues raised in the district court, we conclude no other
issues are properly before us. Issues mentioned in an opening brief, but not
argued, are deemed abandoned. See Greenwood v. F.A.A., 28 F.3d 971, 977 (9th
Cir. 1994). Accordingly, we confine our review to the issues of qualified
immunity and the availability of injunctive relief.
1. Qualified Immunity
Qualified immunity protects government workers from civil liability if
“their conduct does not violate clearly established statutory or constitutional rights
of which a reasonable person would have known.” Cousins v. Lockyer, 568 F.3d
1063, 1069 (9th Cir. 2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). When Mayweathers was assigned his cellmate, the law was not clearly
established that considering an inmate’s race violates equal protection. Rather,
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such a policy was then regarded as “undoubtedly a legitimate penological interest”
related to prison security. See Johnson v. California, 321 F.3d 791, 799 (9th Cir.
2003). Although Johnson was later overruled by the Supreme Court, Johnson v.
California, 543 U.S. 499, 515 (2005) (holding strict scrutiny should be applied to
such racial classifications), prison officials at the time would have reasonably
believed their policy did not violate Mayweathers’ equal protection rights.
Accordingly, the officials are entitled to qualified immunity. See Walker v.
Gomez, 370 F.3d 969, 978 (9th Cir. 2004) (holding prison officials are entitled to
qualified immunity if it was not clearly established that race-based differentiation
is unconstitutional).
We reject Mayweathers’ argument that prison officials should have known
their policy violated equal protection because various international treaties
prohibit racial segregation. Although deprivations of treaty-based rights may be
actionable and therefore call into play the availability of a qualified immunity
defense, see Romero v. Kitsap County, 931 F.2d 624, 627 n.5 (9th Cir. 1991), we
agree with the district court that the treaties at issue here do not give rise to private
rights of action. See, e.g., Cornejo v. County of San Diego, 504 F.3d 853, 857
(9th Cir. 2007).
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2. Injunctive Relief
Qualified immunity does not preclude Mayweathers’ request for injunctive
relief. See Walker, 370 F.3d at 978. Nonetheless, we conclude that Mayweathers
has not carried his burden of showing “that he faces a real or immediate threat . . .
that he will again be wronged in a similar way.” See Mayfield v. United States,
599 F.3d 964, 970 (9th Cir. 2010) (internal quotation marks omitted). As the
district court noted, the prison has stopped using race as a factor in housing
inmates and Mayweathers has been transferred to a dormitory facility.
AFFIRMED.1
1
Mayweathers’ request for an appointment of appellate counsel is
denied. There are no exceptional circumstances that merit an appointment of
counsel. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009), cert. denied,
130 S. Ct. 1282 (2010).
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