GERALD DE CRUZ V. A. PANIZZA, No. 15-16683 (9th Cir. 2016)

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FILED OCT 06 2016 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT GERALD DEAN DE CRUZ, Plaintiff-Appellant, No. 15-16683 D.C. No. 3:15-cv-01930-TEH v. MEMORANDUM* A. PANIZZA, Correctional Officer, Defendant-Appellee. Appeal from the United States District Court for the Northern District of California Thelton E. Henderson, District Judge, Presiding Submitted September 27, 2016** Before: TASHIMA, SILVERMAN, and M. SMITH, Circuit Judges. California state prisoner Gerald Dean de Cruz appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging a First Amendment access-to-courts claim and a Sixth Amendment claim relating to his confidential legal mail. We have jurisdiction under 28 U.S.C. § 1291. We review * 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). de novo a dismissal under 28 U.S.C. § 1915A for failure to state a claim. Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014). We affirm in part, vacate in part, and remand. The district court properly dismissed Cruz’s access-to-courts claim because Cruz failed to allege facts sufficient to show that he suffered an actual injury from defendant’s alleged conduct. See Lewis v. Casey, 518 U.S. 343, 348-349, 351 (1996) (to state an access-to-courts claim, a prisoner must allege “actual injury”). However, the district court failed to consider whether the amended complaint states a Sixth Amendment claim on the basis that defendant opened and “presumably” read confidential correspondence between Cruz and his criminal defense attorneys outside of Cruz’s presence. See Nordstrom, 762 F.3d at 911 (“[A]llegations that prison officials read [an inmate’s] legal mail . . . and that [the inmate’s] right to private consultation with counsel has been chilled state a Sixth Amendment claim”). Therefore, we vacate the judgment in part and remand for further proceedings on this claim only. We express no opinion as to whether the amended complaint states a Sixth Amendment claim. AFFIRMED in part, VACATED in part, and REMANDED. 2 15-16683

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