Thomas Alford v. Stephen Carlton

FILED
NOT FOR PUBLICATION DEC 08 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
THOMAS T. ALFORD, No. 14-15134
Plaintiff - Appellant, D.C. No. 2:12-cv-01470-TLN-
CKD
v.
STEPHEN S. CARLTON, District MEMORANDUM*
Attorney of Shasta County,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Troy L. Nunley, District Judge, Presiding
Submitted November 18, 2014**
Before: LEAVY, FISHER, and N.R. SMITH, Circuit Judges.
Thomas T. Alford, a California state prisoner, appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging denial of
post-conviction access to biological evidence for DNA testing. We have
*
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).
jurisdiction under 28 U.S.C. § 1291. We review de novo. Intri-Plex Techs, Inc. v.
Crest Grp., Inc., 499 F.3d 1048, 1052 (9th Cir. 2007) (dismissal under Fed. R. Civ.
P. 12(b)(6)). We may affirm on any ground supported by the record, Thompson v.
Paul, 547 F.3d 1055, 1058-59 (9th Cir. 2008), and we affirm.
Dismissal of Alford’s action was proper because Alford failed to allege facts
sufficient to state a cognizable claim for relief. See Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (to avoid dismissal, “a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that is plausible on its face”
(citation and internal quotation marks omitted)); see also Skinner v. Switzer, 131 S.
Ct. 1289, 1293, 1298 (2011) (a prisoner can state a cognizable § 1983 claim by
alleging a general constitutional challenge to a state post-conviction DNA testing
statute, but not by challenging such statute’s application in his case); Dist.
Attorney’s Office for the Third Judicial Dist. v. Osborne, 557 U.S. 52, 69-72
(2009) (due process requires only that the state’s procedures for post-conviction
relief do not offend fundamental principles of justice or transgress any recognized
principle of fundamental fairness in operation).
We do not consider arguments and allegations raised for the first time on
appeal). See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
AFFIRMED.
2 14-15134