STEPHEN CHERRY V. DEWAYNE SHEDD, No. 16-35921 (9th Cir. 2018)

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FILED NOT FOR PUBLICATION FEB 22 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT STEPHEN A. CHERRY, U.S. COURT OF APPEALS No. 16-35921 Plaintiff-Appellant, D.C. No. 3:10-cv-00271-EJL-REB v. MEMORANDUM* DEWAYNE SHEDD; et al., Defendants-Appellees. Appeal from the United States District Court for the District of Idaho Edward J. Lodge, District Judge, Presiding Submitted February 13, 2018** Before: LEAVY, FERNANDEZ, and MURGUIA, Circuit Judges. Idaho state prisoner Stephen A. Cherry appeals pro se from the district court’s summary judgment in his 42 U.S.C. § 1983 action alleging an access-tocourts claim. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Brodheim v. Cry, 584 F.3d 1262, 1267 (9th Cir. 2009). We affirm. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). The district court properly granted summary judgment on Cherry’s access-to-courts claim against defendant Higgins because Cherry failed to raise a genuine dispute of material fact as to whether he suffered an actual injury as a result of defendant Higgins’s misplacement of his legal materials. See Lewis v. Casey, 518 U.S. 343, 348-53 (1996) (access-to-courts claim requires the plaintiff to show that the defendants’ conduct caused actual injury to a non-frivolous legal claim); see also Silva v. DiVittorio, 658 F.3d 1090, 1101-04 (9th Cir. 2011) (discussing access-to-courts claims arising from “active interference”), overruled on other grounds as stated by Richey v. Dahne, 807 F.3d 1202, 1209 n.6 (9th Cir. 2015). AFFIRMED. 2 16-35921

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