Jose Fierro v. Richardson, et al, No. 09-15914 (9th Cir. 2010)

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FILED OCT 06 2010 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT JOSÃ ABEL FIERRO, No. 09-15914 Plaintiff - Appellant, D.C. No. 4:07-cv-00580-DCB v. MEMORANDUM * RICHARDSON, Grievance Coordinator; et al., Defendants - Appellees. Appeal from the United States District Court for the District of Arizona David C. Bury, District Judge, Presiding Submitted September 13, 2010 ** Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges. JosÃ© Abel Fierro, an Arizona state prisoner, appeals pro se from the district court s summary judgment in his 42 U.S.C. § 1983 action alleging constitutional violations arising from the loss of a box of legal documents when he was * 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). transferred between prisons. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Brodheim v. Cry, 584 F.3d 1262, 1267 (9th Cir. 2009), and we affirm. The district court properly granted summary judgment on Fierro s claim for denial of access to the courts because Fierro failed to raise a triable issue as to whether he suffered an actual injury. See Lewis v. Casey, 518 U.S. 343, 351-53 & n.3 (1996) (to show an actual injury, a prisoner must demonstrate that his efforts to pursue a nonfrivolous legal claim were hindered). The district court properly granted summary judgment on Fierro s retaliation claim because Fierro failed to raise a triable issue as to whether defendants knew about his prior lawsuit. See Brodheim, 584 F.3d at 1269 & n.3 (to defeat summary judgment on a First Amendment retaliation claim in the prison context, the prisoner must raise a triable issue as to whether, inter alia, defendants took an adverse action against him because of his protected conduct). The district court also properly granted summary judgment on Fierro s due process claim. See Daniels v. Williams, 474 U.S. 327, 328 (1986) ( [T]he Due Process Clause is . . . not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property. ); Ramirez v. Galaza, 334 2 09-15914 F.3d 850, 860 (9th Cir. 2003) ( [I]nmates lack a separate constitutional entitlement to a specific prison grievance procedure. ). Fierro s remaining contentions are unpersuasive. Appellees Motion to Supplement the Record on Appeal is construed as a request for judicial notice and, as such, is granted. AFFIRMED. 3 09-15914

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