Opinion
Editorial Note:
This opinion appears in the Federal reporter in a table titled "Table of Decisions Without Reported Opinions". (See FI CTA9 Rule 36-3 regarding use of unpublished opinions)
Decided Dec. 5, 1991.
Appeal from the United States District Court for the Eastern District of California, No. CV-87-1263; Edward J. Garcia, District Judge, Presiding.
E.D.Cal.
AFFIRMED.
Before ALARCON, D.W. NELSON and CANBY, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Cir.R. 36-3.
Because Larry Hines failed to demonstrate an injury, the district court properly granted summary judgment as to the eighth amendment claims based on Don Abney's threats and the alleged duty to protect. See Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Hoptowit v. Ray, 682 F.2d 1237, 1246 (9th Cir.1982). As the court also recognized, Hines' inability to prove retaliation was fatal to his other eighth amendment claim. See Celotex, 477 U.S. at 322; McDonald v. Hall, 610 F.2d 16, 18 (1st Cir.1979).
With respect to his fourteenth amendment arguments, the district court accurately determined that Hines lacked a protected interest in his position, and thus could not state a due process claim. See Toussaint v. McCarthy, 801 F.2d 1080, 1094-95 (9th Cir.1986), cert. denied, 481 U.S. 1069 (1987). Likewise, Hines' failure to show that a similarly situated inmate received different treatment was properly decisive of his equal protection claim. Finally, the district court correctly granted summary judgment against Hines on his fifth amendment claim, because the double jeopardy clause does not apply to prison disciplinary proceedings. See Kerns v. Parratt, 672 F.2d 690, 691-92 (8th Cir.1982).
AFFIRMED.