Jeremiah Thomasson v. Jeff Premo ( 2015 )

FILED
NOT FOR PUBLICATION OCT 23 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEREMIAH THOMASSON, No. 15-35007
Plaintiff - Appellant, D.C. No. 6:14-cv-01788-MO
v.
MEMORANDUM*
JEFF PREMO, Superintendent of Oregon
State Prison; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Submitted October 14, 2015**
Before: SILVERMAN, BERZON, and WATFORD, Circuit Judges.
Oregon state prisoner Jeremiah Thomasson appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging constitutional
claims arising, in part, from his transfer through the Interstate Corrections Compact
*
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).
to a Florida state prison. We have jurisdiction under 28 U.S.C. § 1291. We review
de novo. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (dismissal under 28
U.S.C. § 1915A); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998)
(order) (dismissal under 28 U.S.C. § 1915(e)(2)). We may affirm on any ground
supported by the record. Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir.
2008). We affirm in part, vacate in part, and remand.
Dismissal of Thomasson’s due process claims alleging a violation of (1) a
state-created liberty interest, (2) the Due Process Clause, or (3) the Interstate
Corrections Compact was proper because Thomasson failed to allege facts
sufficient to state a claim. See Sandin v. Conner, 515 U.S. 472, 483-84 (1995)
(constitutionally protected liberty interest arises only when prison officials impose
an “atypical and significant hardship on the inmate in relation to the ordinary
incidents of prison life”); Olim v. Wakinekona, 461 U.S. 238, 248 (1983) (Due
Process Clause does not create a liberty interest in avoiding an interstate prison
transfer); Meachum v. Fano, 427 U.S. 215, 225 (1976) (Due Process Clause does
not create a liberty interest in avoiding transfer to more adverse conditions of
confinement); Ghana v. Pearce, 159 F.3d 1206, 1209 (9th Cir. 1998) (because “the
Compact is not federal law and does not create a constitutionally protected liberty
interest,” a violation of the Compact cannot be the basis for a § 1983 claim).
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Dismissal of Thomasson’s access-to-courts claims concerning (1) his
inability to appear at an Oregon state court hearing and (2) access to legal materials
was proper because Thomasson failed to allege facts sufficient to show an actual
injury. See Lewis v. Casey, 518 U.S. 343, 348-49, 354-55 (1996) (access-to-courts
claim requires showing of actual injury, which means prejudice to direct appeals of
criminal convictions, habeas petitions, or challenges to conditions of confinement).
Although the district court did not abuse its discretion by dismissing some of
Thomasson’s claims without leave to amend, see Chappel v. Lab. Corp. of Am.,
232 F.3d 719, 725-26 (9th Cir. 2000) (setting forth standard of review and
explaining that “[a] district court acts within its discretion to deny leave to amend
when amendment would be futile”), dismissal without leave to amend was
premature as to two claims: (1) the due process claim premised on a state-created
liberty interest, and (2) the access-to-courts claim concerning access to legal
materials. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (“[B]efore
dismissing a pro se complaint the district court must provide the litigant with
notice of the deficiencies in his complaint in order to ensure that the litigant uses
the opportunity to amend effectively.” (citation and internal quotation marks
omitted)). It is possible that Thomasson could allege facts sufficient to show that
prison officials, by transferring him, imposed an atypical and significant hardship
3 15-35007
giving rise to a protected liberty interest, see Sandin, 515 U.S. at 483-84, and that
he could allege facts sufficient to show that he was denied access in connection
with a state habeas petition or a challenge to his conditions of confinement, see
Lewis, 518 U.S. at 348-49, 354-55. Accordingly, we vacate the judgment in part,
and remand for the district court to provide Thomasson an opportunity to amend
his due process claim premised on a state-created liberty interest and access-to-
courts claim concerning access to legal materials.
AFFIRMED in part; VACATED in part; and REMANDED.
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