Vernon McNeal v. Ervin ( 2011 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT NOV 29 2011
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
VERNON WAYNE McNEAL, No. 10-15576
Plaintiff - Appellant, D.C. No. 2:07-cv-02240-LKK-
EFB
v.
ERVIN, Correctional Guard, HDSP; MEMORANDUM *
EVERT, C/O,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, District Judge, Presiding
Submitted November 21, 2011 **
Before: TASHIMA, BERZON, and TALLMAN, Circuit Judges.
Vernon Wayne McNeal appeals pro se from the district court’s judgment
dismissing his 42 U.S.C. § 1983 action alleging that defendants violated his First
Amendment rights by denying him access to the courts and retaliating against him.
*
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).
We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Resnick v.
Hayes, 213 F.3d 443, 447 (9th Cir. 2000). We affirm.
The district court properly dismissed McNeal’s access-to-courts claim
because McNeal did not allege facts showing that defendants’ loss of his legal
materials in 2004 resulted in any actual injury. See Lewis v. Casey, 518 U.S. 343,
349-53 (1996) (access-to-courts claim requires plaintiff to show that defendants’
conduct caused actual injury to a nonfrivolous legal claim). Contrary to McNeal’s
contention, the record indicates that the Supreme Court rejected his request for an
extension of time to file his petition for certiorari because McNeal failed to attach a
copy of the Ninth Circuit order, issued in 2006, denying review of his habeas
petition. See Sup. Ct. R. 13.5 (“An application to extend the time to file shall . . .
identify the judgment sought to be reviewed, include a copy of the opinion and any
order respecting rehearing, and set out specific reasons why an extension of time is
justified.”).
The district court properly dismissed McNeal’s retaliation claim because
McNeal failed to allege facts demonstrating that he was engaged in any
constitutionally protected activity. See Rizzo v. Dawson, 778 F.2d 527, 531 (9th
Cir. 1985) (“To state a claim [plaintiff] must allege both that the type of activity he
2 10-15576
engaged in was protected under the first amendment and that the state
impermissibly infringed on his right to engage in the protected activity.”).
The district court did not abuse its discretion by dismissing without leave to
amend where amendment would be futile. See Gordon v. City of Oakland, 627
F.3d 1092, 1094 (9th Cir. 2010).
McNeal’s remaining contentions are unpersuasive.
AFFIRMED.
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