Richard Pickett v. Bennie Rollins ( 2010 )

FILED
NOT FOR PUBLICATION JUN 23 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RICHARD L. PICKETT, No. 08-17268
Plaintiff - Appellant, D.C. No. 2:98-CV-00198-SRB-
MHB
v.
BENNIE ROLLINS, Deputy Warden in MEMORANDUM *
his individual & official capacity; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
Argued and Submitted June 16, 2010
San Francisco, California
Before: RYMER and FISHER, Circuit Judges, and RIPPLE, Senior Circuit
Judge.**
Richard L. Pickett appeals the summary judgment in favor of the Arizona
Department of Corrections (ADC) officials against whom he brought this action
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Kenneth F. Ripple, Senior United States Circuit Judge
for the Seventh Circuit, sitting by designation.
under 42 U.S.C. § 1983. We have jurisdiction pursuant to 28 U.S.C. § 1291, and
affirm.
To prevail on his denial-of-access to court claim, Pickett must show the loss
of a “nonfrivolous” or “arguable” underlying claim. Phillips v. Hust, 477 F.3d
1070, 1076 (9th Cir. 2007), vacated on other grounds by Hust v. Phillips, 129 S.
Ct. 1036 (2009). He did not do so. No underlying claims were identified in his
complaint, see Christopher v. Harbury, 536 U.S. 403, 415 (2002), but even
assuming the claims on which he would have sought review in the Arizona
Supreme Court would track those presented to the court of appeals, he failed to
show that any had arguable merit.
Although the district court should have considered Pickett’s motion to
reconsider as a Rule 60(b) motion, see Am. Ironworks & Erectors, Inc. v. N. Am.
Constr. Corp., 248 F.3d 892, 898-99 (9th Cir. 2001), the error is harmless as
Pickett did not demonstrate that he was entitled to relief from judgment.
AFFIRMED.
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