Unpublished Disposition, 940 F.2d 669 (9th Cir. 1991)

MEMORANDUM^** 

Franklin B. Shesler, Ralph M. Crow, Christopher M. Mazur and Norma H. Nelson (collectively "Shesler") appeal pro se the district court's summary judgment for defendants and dismissal of their 42 U.S.C. § 1983 action alleging violation of their right to vote. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 110 S. Ct. 3217 (1990), and affirm.

Shesler contends that summary judgment was not proper because genuine issues of fact remained. Summary judgment is appropriate if the evidence, construed in the light most favorable to the nonmoving party, shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Tzung v. State Farm Fire & Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir. 1989). If the nonmoving party bears the burden of proof at trial with respect to a material fact, that party is required to go beyond the pleadings and present specific facts establishing each element of his claim on which he would bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Smolen v. Deloitte, Haskins & Sells, 921 F.2d 959, 963 (9th Cir. 1990).

Here, Shesler brought this action claiming that he was deprived of his right to vote because his write-in votes for recorder and district attorney in the primary election were not counted. Nevada law provides that no primary election is held if there are only two candidates for an office. Nev.Rev.Stat. Sec. 293.260(6). Here, there were only two candidates each for the offices of recorder and district attorney.¹  Thus, no primary election was held for those offices. Further, Nevada law prohibits write-in voting. Nev.Rev.Stat. Sec. 293.270. Thus, Shesler's write-in votes were not counted.

Although Shesler claims that defendants' election procedures violated his right to vote, he does not allege facts which would support a finding of any constitutional violation of his right to vote. See Burdick v. Takushi, No. 90-15873, slip op. 7929, 7945 (9th Cir. June 28, 1991) (state may constitutionally prohibit write-in voting). Further, in his opposition to defendants' motion for summary judgment, Shesler failed to go beyond the pleadings to present specific facts establishing a constitutional violation. Fed. R. Civ. P. 56(c); Celotex, 477 U.S. at 323. On appeal, Shesler again fails to specify which facts remained for trial. Accordingly, the district court properly found that defendants were entitled to judgment as a matter of law and granted summary judgment for defendants.

On appeal, Shesler also argues that (1) it was improper and contradictory for the district court to both grant the motion for summary judgment and at the same time dismiss the action, (2) the district court erroneously treated defendants' Memorandum of Points and Authorities as evidence to try issues of fact, and (3) he was denied an opportunity for hearing before summary judgment.

First, if a district court grants summary judgment against all defendants, as was done here, it is proper to dismiss the action with prejudice and enter judgment. Fed. R. Civ. P. 56(c). Second, Federal Rule of Civil Procedure 12(b) provides that if "matters outside the pleading are presented to and not excluded" by the district court, a motion to dismiss shall be treated as one for summary judgment. Fort Vancouver Plywood Co. v. United States, 747 F.2d 547, 552 (9th Cir. 1984). Here, defendants submitted certified copies of public records as exhibits with their motion to dismiss. The district court notified Shesler that it was treating the motion to dismiss as one for summary judgment, and gave Shesler the opportunity to oppose the motion. See Garaux v. Pulley, 739 F.2d 437, 439 (9th Cir. 1984). Given these circumstances, the district court properly considered the certified copies of public records as evidence showing the absence of a genuine issue of fact, not the Memorandum of Points and Authorities.

Finally, denial of a request for a hearing on a motion for summary judgment is not reversible absent a showing of prejudice. Houston v. Bryan, 725 F.2d 516, 518 (9th Cir. 1984). Here, Shesler has made no showing of prejudice.

AFFIRMED.²