Daniel Smith v. Figeroe ( 2011 )

FILED
NOT FOR PUBLICATION NOV 01 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DANIEL LAWRENCE SMITH, No. 10-17141
Plaintiff - Appellant, D.C. No. 2:07-cv-00837-WBS-
CMK
v.
FIGEROE; et al., MEMORANDUM *
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
William B. Shubb, District Judge, Presiding
Submitted October 25, 2011 **
Before: TROTT, GOULD, and RAWLINSON, Circuit Judges.
Daniel Lawrence Smith, a California state prisoner, appeals pro se from the
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging that
defendants violated his right of access to the courts. We have jurisdiction under
28 U.S.C. § 1291. We review de novo, Jones v. Blanas, 393 F.3d 918, 926
*
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).
(9th Cir. 2004), and we affirm.
The district court properly granted summary judgment because Smith failed
to raise a genuine dispute of material fact as to whether he suffered an actual injury
as a result of the loss of the Keybo declaration. See Lewis v. Casey, 518 U.S. 343,
350-53 (1996) (access-to-courts claim requires plaintiff to show that defendants’
conduct caused actual injury to a non-frivolous legal claim). Specifically, Smith
did not raise a genuine dispute of material fact as to whether the declaration
contained “newly discovered evidence” that would allow him to pursue a state
habeas action. In re Hardy, 163 P.3d 853, 872 (Cal. 2007) (setting forth the
requirements for pursuing a habeas action claiming actual innocence based on
newly discovered evidence).
We do not consider issues that were not raised in the opening brief. See
Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
Smith’s remaining contentions are unpersuasive.
AFFIRMED.
2 10-17141