Marco Hudson v. C. Harrison ( 2011 )

FILED
NOT FOR PUBLICATION MAY 04 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MARCO HUDSON, No. 09-56994
Plaintiff - Appellant, D.C. No. 2:05-cv-08397-SJO-FFM
v.
MEMORANDUM *
C. M. HARRISON, Warden; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Submitted April 20, 2011 **
Before: RYMER, THOMAS, and PAEZ, Circuit Judges.
California state prisoner Marco Hudson appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging that defendants
violated his First Amendment and due process rights by sending back comic books
that were mailed to him without providing him notice. We have jurisdiction under
*
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).
28 U.S.C. § 1291. We review de novo a district court’s dismissal, Huftile v.
Miccio-Fonseca, 410 F.3d 1136, 1138 (9th Cir. 2005), and decision regarding
qualified immunity, Beier v. City of Lewiston, 354 F.3d 1058, 1064 (9th Cir. 2004).
We review for an abuse of discretion the denial of leave to amend. Chodos v. W.
Publ’g Co., 292 F.3d 992, 1003 (9th Cir. 2002). We affirm.
The district court properly dismissed Hudson’s due process claim because it
was barred by the release that he previously accepted. See Marder v. Lopez, 450
F.3d 445, 449, 453 (9th Cir. 2006) (discussing release of claims under California
law and affirming dismissal of claims based upon release). Hudson’s contentions
that defendants breached the release are unpersuasive.
The district court properly dismissed Hudson’s First Amendment claim
without leave to amend after concluding that defendants were entitled to qualified
immunity because the law regarding a prisoner’s right to receive publications from
non-approved vendors was not clearly established. See Hope v. Pelzer, 536 U.S.
730, 739 (2002) (“For a constitutional right to be clearly established, its contours
must be sufficiently clear that a reasonable official would understand that what he
is doing violates that right.” (internal quotation marks omitted)); see also Cato v.
United States, 70 F.3d 1103, 1106-07 (9th Cir. 1995) (dismissal without leave to
amend is not an abuse of discretion where amendment would be futile).
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Hudson’s remaining contentions are unpersuasive.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009)
(per curiam).
Hudson’s request for publication is denied.
AFFIRMED.
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