Unpublished Disposition, 923 F.2d 861 (9th Cir. 1988)

MEMORANDUM^** 

Anthony Banks, a former California state prisoner, appeals pro se the district court's summary judgment in favor of defendants, and the court's denial of his motion for appointment of counsel. The court found (1) no triable issue of fact existed with regard to Banks's claim against Estelle and McCarthy, (2) Banks's claim against DuFriend was time barred, (3) Banks's claim against Denton, Wilson and "Doe" had never been served, and (4) Banks did not require appointment of counsel for his claim. We affirm.

* SUMMARY JUDGMENT

We review a summary judgment de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 110 S. Ct. 3217 (1990). We must determine whether there is any issue of material fact and whether the substantive law was correctly applied. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986).

Banks alleges that his civil rights were violated when legal mail addressed to him at the California Men's Colony was opened outside of his presence in violation of California Department of Corrections regulations. He names Estelle and McCarthy as defendants in their supervisory capacity. Supervisory officials are liable under section 1983 only when (1) they are personally involved in the constitutional deprivation or (2) there exists a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation. Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989). Banks admits that Estelle and McCarthy did not personally open his mail. Moreover, he does not allege any facts showing a causal connection between any acts of Estelle and McCarthy and the alleged constitutional violation. Consequently, Estelle and McCarthy cannot be held liable under the theory of respondeat superior.

Nor can Banks establish liability for failure to adequately train or supervise. The Supreme Court recently held that liability under that theory can only be imposed where the failure to train amounts to deliberate indifference. City of Canton v. Harris, 489 U.S. 378, ----, 109 S. Ct. 1197, 1204 (1989); Mateyko v. Felix, 913 F.2d 744, 746 (9th Cir. 1990). The California Department of Corrections and the California Men's Colony's regulations require that legal mail be opened in the presence of the inmate addressee. Estelle and McCarthy submitted declarations that prison employees were trained in these procedures. Banks's allegations establish, at most, that the mail was opened in error. This is not sufficient to give rise to liability under section 1983. See id. Accordingly, the district court was correct in granting summary judgment in favor of defendants Estelle and McCarthy.

The district court dismissed Banks's claim against DuFriend as time barred. In Wilson v. Garcia, 471 U.S. 261 (1985), the Supreme Court held that the statute of limitations for section 1983 actions would be the state statute of limitations for personal injury actions. Id. at 279. In California, this period is one year. Cal.Civ.Proc.Code Sec. 340(3). Prior to Wilson, the statute of limitations for section 1983 actions was three years. Usher v. City of Los Angeles, 828 F.2d 556, 558-59 (9th Cir. 1987). In Usher, this court held that since the effect of Wilson was to shorten the limitations period, the limitations period for causes of action arising prior to Wilson would be either: "(1) the pre-Wilson period, commencing at the time the cause of action arises, or (2) the post-Wilson period, commencing with the Wilson decision, whichever expires first." Id. at 561.

Banks's claim against DuFriend involves an event which occurred October 19, 1983. Under (1) above, Banks had three years from the date of accrual, or until October 19, 1986, to file his claim. Under (2) above, Banks had one year from the date of Wilson, or until April 17, 1986, to file his claim. Banks filed his claim against DuFriend in his second amended complaint on February 4, 1988. Thus, because under either alternative Banks's claim against DuFriend is time barred, the district correctly dismissed it.

C. Defendants Wilson, Denton, and "Doe"

We review a district court's dismissal of an action pursuant to Rule 4(j) for abuse of discretion. West Coast Theater Corp. v. City of Portland, 897 F.2d 1519, 1528 (9th Cir. 1990). Rule 4(j) of the Federal Rules of Civil Procedure provides:

If a service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint and the party on whose behalf such service was required cannot show good cause why such service was not made within that period, the action shall be dismissed as to that defendant without prejudice upon the court's own initiative with notice to such party or upon motion.

Here, Banks had not served defendants Denton, Wilson and "Doe" over one year after he had filed his second amended complaint. Further, he failed to offer any good cause for this delay. Thus, the district court did not err by granting defendants' motion to quash and dismissing the action as to Wilson, Denton and "Doe". See West Coast Theater, 897 F.2d at 1528; Wei v. State of Hawaii, 763 F.2d 370, 371-72 (9th Cir. 1985).

II

MOTION FOR APPOINTMENT OF COUNSEL

We review the district court's denial of Banks's motion for appointment of counsel for abuse of discretion. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). 28 U.S.C. § 1915(d) confers on a district court the discretion to designate counsel to represent an indigent civil litigant. Id. However, appointment of counsel is limited to exceptional circumstances. The district court must look at the likelihood of success on the merits and the ability of the petitioner to litigate pro se given the complexity of the legal issues involved. Wilborn, 789 F.2d at 1331. Here, the district court correctly noted that Banks had demonstrated his ability to litigate the issues through his pursuit of a successful appeal to this court. Further, Banks had not demonstrated a likelihood of success on the merits. Thus, the district court did not abuse its discretion in denying Banks's motion for appointment of counsel. See id.

III

OTHER CLAIMS

Finally, Banks argues that he was denied access to legal materials and that he was subjected to cruel and inhuman conditions while incarcerated. However, these arguments were not raised in his second amended complaint, nor anywhere else in the district court record.¹  This court will not consider arguments raised for the first time on appeal. Self Directed Placement Corp. v. Control Data Corp., 908 F.2d 462, 466 (9th Cir. 1990). Accordingly, we do not reach these arguments.

AFFIRMED.