Sergio Alvarez v. Francisco Jacquez , 415 F. App'x 830 ( 2011 )

FILED
NOT FOR PUBLICATION FEB 24 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
SERGIO ALVAREZ, No. 09-17516
Plaintiff - Appellant, D.C. No. 4:06-cv-05631-SBA
v.
MEMORANDUM *
FRANCISCO JACQUEZ and T. DENNIS,
Defendants - Appellees,
and
ROBERT HOREL and RICHARD
KIRKLAND,
Defendants.
Appeal from the United States District Court
for the Northern District of California
Saundra B. Armstrong, District Judge, Presiding
Submitted February 15, 2011 **
Before: CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.
*
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).
Sergio Alvarez, a California state prisoner, appeals pro se from the district
court’s judgments dismissing his 42 U.S.C. § 1983 action alleging denial of access
to the courts and due process violations. We have jurisdiction under 28 U.S.C. §
1291. We review de novo. Nelson v. Heiss, 271 F.3d 891, 893 (9th Cir. 2001)
(dismissal for failure to state a claim); Yanez v. United States, 63 F.3d 870, 872
(9th Cir. 1995) (judgment on the pleadings). We affirm.
The district court properly granted defendants’ motion for judgment on the
pleadings on Alvarez’s denial of access to the courts claim because Alvarez failed
to allege that he suffered actual injury. See Lewis v. Casey, 518 U.S. 343, 348-49
(1996) (defining actual injury as “actual prejudice with respect to contemplated or
existing litigation, such as the inability to meet a filing deadline or to present a
claim” (citation and internal quotation marks omitted)).
The district court properly dismissed Alvarez’s due process claim because
defendants’ failure to remove erroneous information from Alvarez’s file did not
“impose[] atypical and significant hardship on [Alvarez] in relation to the ordinary
incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995).
The district court did not abuse its discretion by denying Alvarez’s motion to
file an amended complaint because amendment would have been futile. See
Ventress v. Japan Airlines, 603 F.3d 676, 680 (9th Cir. 2010).
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The district court did not abuse its discretion by denying Alvarez’s request
for appointment of counsel because he failed to show exceptional circumstances.
See Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1980) (per curiam).
Alvarez’s remaining contentions are unpersuasive.
AFFIRMED.
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