Monico J. Quiroga Iii v. Timothy King;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MONICO J. QUIROGA III,
Plaintiff-Appellant,
v.
TIMOTHY KING; et al.,
Defendants-Appellees.
No. 17-15329
D.C. No. 1:15-cv-01697-AWI-MJS
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Submitted June 12, 2018**
Before: RAWLINSON, CLIFTON and NGUYEN, Circuit Judges.
California state prisoner Monico J. Quiroga III appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging
constitutional claims arising from his pretrial detention. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo. Wilhelm v. Rotman, 680 F.3d 1113,
* 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
JUN 19 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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1118 (9th Cir. 2012) (dismissal under 28 U.S.C. § 1915A); Watison v. Carter, 668
F.3d 1108, 1112 (9th Cir. 2012) (dismissal under 28 U.S.C. § 1915(e)). We affirm
in part, vacate in part, and remand.
The district court properly dismissed Quiroga’s failure-to-protect and
conditions-of-confinement claims because, under any applicable standard, Quiroga
failed to allege facts sufficient to show that defendants’ labeling him an informant
or placing him in administrative segregation resulted in a substantial risk of serious
harm or that he suffered any injury as a result of defendants’ actions. See Castro v.
County of Los Angeles, 833 F.3d 1060, 1067-71 (9th Cir. 2016) (en banc) (setting
forth elements of a pretrial detainee’s Fourteenth Amendment failure-to-protect
claim); see also Farmer v. Brennan, 511 U.S. 834, 837 (1994) (under the Eighth
Amendment, a prison official is liable if he knows of and disregards an excessive
risk to inmate health or safety).
The district court properly dismissed Quiroga’s First Amendment retaliation
claim because Quiroga failed to allege facts sufficient to show any protected
conduct. See Watison, 668 F.3d at 1114-15 (setting forth elements of a First
Amendment retaliation claim in the prison context).
The district court concluded that Quiroga failed to state a due process claim
because Quiroga failed to allege that his confinement in administrative segregation
amounted to punishment. However, Quiroga alleged that defendants placed him in

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administrative segregation for the purpose of causing him harm and with an intent
to “annoy and pester” him. Liberally construed, these allegations are “sufficient to
warrant ordering [defendants] to file an answer.” Wilhelm, 680 F.3d at 1116; see
also Simmons v. Sacramento Cty. Superior Court, 318 F.3d 1156, 1160-61 (9th
Cir. 2003) (a restriction on a pretrial detainee amounts to impermissible
punishment if it is not reasonably related to a legitimate governmental objective);
Mitchell v. Dupnik, 75 F.3d 517, 524 (9th Cir. 1996) (pretrial detainees may not be
subjected to disciplinary segregation without a due process hearing).
We vacate the dismissal of Quiroga’s due process claim, and remand for
further proceedings as to this claim only. We affirm the dismissal of all other
claims.
We do not consider arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED in part, VACATED in part, and REMANDED.

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