Michael E. HART, Plaintiff-Appellant, v. Craig FARWELL; et al., Defendants-Appellees, 316 F. App'x 678

MEMORANDUM Nevada state prisoner Michael E. Hart appeals pro se from the district court’s

summary judgment in his 42 U.S.C. § 1983 action alleging that prison officials violated his constitutional rights by instituting lock-downs more frequently in the prison’s protective segregation unit than among the general population. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir.2006), and we affirm. The district court properly granted

summary judgment on Hart’s equal protection claim because, even assuming there were more lockdowns in the protected segregation unit than among the general population, Hart failed to present evidence that defendants’ actions were not reasonably related to a legitimate penological interest or that the two groups of prisoners were similarly situated. See Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) (“[Wjhen a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.”); Jordan v.

Gardner, 986 F.2d 1521, 1530 (9th Cir.1993) (noting application of Turner standard to equal protection claim); see also Thornton v. City of St. Helens, 425 F.3d 1158, 1168 (9th Cir.2005) (“[Different treatment of unlike groups does not support an equal protection claim.”). The district court properly granted

summary judgment on Hart’s free exercise claim because Hart failed to exhaust his administrative remedies and defendants raised this defense in them motion for

summary judgment. See 42 U.S.C. § 1997e(a) (requiring a prisoner to exhaust administrative remedies before bringing a § 1983 action); Rivera v. Anaya, 726 F.2d 564, 566 (9th Cir.1984) (“[A]bsent prejudice to the plaintiff, a defendant may raise an affirmative defense in a motion for

summary judgment for the first time.”). The district court did not abuse its discretion by denying Hart’s motion to compel interrogatory responses because he failed to demonstrate that he suffered prejudice from the denial. See Hallett v. Morgan, 296 F.3d 732, 751 (9th Cir.2002) (explaining that a district court’s “decision to deny discovery will not be disturbed except upon the clearest showing that denial of discovery results in actual and substantial prejudice to the complaining litigant” (citation omitted)). Hart’s remaining contentions are unpersuasive. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.