Daryl Howard v. Nelson , 384 F. App'x 684 ( 2010 )

FILED
NOT FOR PUBLICATION JUN 21 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DARYL K. HOWARD, No. 09-15802
Plaintiff - Appellant, D.C. No. 1:06-cv-01829-ALA
v.
MEMORANDUM *
NELSON, et al.,
Defendants - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Arthur L. Alarcón, Circuit Judge, Presiding **
Submitted May 25, 2010 ***
Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Arthur L. Alarcón, United States Circuit Judge for the
Ninth Circuit, sitting by designation.
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Daryl K. Howard, a California state prisoner, appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging denial of access
to courts. We have jurisdiction under 28 U.S.C. § 1291. We review de novo,
Nelson v. Heiss, 271 F.3d 891, 893 (9th Cir. 2001), and we affirm.
The district court properly dismissed Howard’s denial of access to courts
claim because he failed to allege facts indicating that defendant impeded his right
to file a habeas petition. See Lewis v. Casey, 518 U.S. 343, 353-55 (1996) (access
to courts claim requires actual injury to plaintiff’s non-frivolous legal claim caused
by defendants’ conduct). Howard’s habeas petition was time-barred before he was
placed in administrative segregation and deprived of any legal materials.
Dismissal without leave to amend was proper because it is clear that the
deficiencies of the complaint cannot be cured by amendment. See Lopez v. Smith,
203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc).
We do not consider issues raised for the first time on appeal. See Foti v. City
of Menlo Park, 146 F.3d 629, 638 (9th Cir. 1998).
AFFIRMED.
2 09-15802