Summary
finding plaintiff waived a claim "by failing to delineate it specifically and explicitly in his opposition to defendant's motion for summary judgment"
Summary of this case from McCurley v. Royal Sea Cruises, Inc.Opinion
The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2). Accordingly, we deny Hurd's request for oral argument.
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
State prisoner appealed after the United States District Court for the Southern District of California, M. James Lorenz, J., granted summary judgment dismissing his § 1983 action, in which he alleged that he had been denied access to the courts and retaliated against by prison officials. The Court of Appeals held that: (1) prisoner failed to establish that he suffered an actual injury attributable to law library inadequacies with respect to his federal habeas corpus petition; (2) access to courts claim which related to his state habeas petition was waived by his failure to address it in his opposition to summary judgment motion; and (3) claims presented by a prisoner in an amended or supplemental complaint are subject to the exhaustion requirement of the Prison Litigation Reform Act (PLRA).
Affirmed.
Page 677.
Appeal from the United States District Court for the Southern District of California M. James Lorenz, District Judge, Presiding.
Before CANBY, KOZINSKI, and RYMER, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by 9th Cir. R. 36-3.
Dale Ray Hurd, a California state prisoner, appeals pro se the district court's summary judgment for defendants in his 42 U.S.C. § 1983 action alleging denial of access to the courts and retaliation. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the district court's grant of summary judgment, Barnett v. Centoni, 31 F.3d 813, 815 (9th Cir.1994) (per curiam), and we affirm.
With respect to Hurd's access to the courts claim, we conclude that he failed to establish that he suffered an actual injury attributable to law library inadequacies with respect to his federal habeas corpus petition. See Lewis v. Casey, 518 U.S. 343, 348-49, 116 S.Ct. 2174, 135 L.Ed.2d 606 (1996). With respect to his access to the courts claim relating to his state habeas corpus petition, we conclude that he waived this claim by failing to delineate it specifically and explicitly in his opposition to defendant's motion for summary judgment. See Whittaker Corp. v. Execuair Corp., 953 F.2d 510, 515 (9th Cir.1992).
We also affirm the district court's grant of summary judgment on Hurd's retaliation claim. See Barnett, 31 F.3d at 816.
We reject Hurd's contentions with respect to the failure of the district court to issue a subpoena because the information he sought would not have altered the resolution of the access to the courts claims. See Sablan v. Dep't of Finance of the Commonwealth of the N. Mariana Islands, 856 F.2d 1317, 1321 (9th Cir.1988).
We agree with the district court that claims presented in an amended or supplemental complaint are subject to the exhaustion requirement of the Prison Litigation Reform Act. See 42 U.S.C. § 1997e(a).
We reject Hurd's remaining contentions as meritless.
AFFIRMED.