Free Order of 9th Circuit - District Court of Arizona - Arizona

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:2:. i P on PUBLWCATION 00T 31 2006
UNITED STATES count OF APPEALS °“"JE.%éii¥?rg?i£='%·$%ER“
l i FOR THE NINTH CIRCUIT
' TIMOTHY LEE WARD, _ No. 05-17329
` Plaintiff ~· Appellant, T D.C. No. CV-03-02159-PHX-ROS
A v.
MEMORANDUM`
GERRY BENNETT, Property Officer, ‘
Defendant - Appellee, T
and - I
KARR; et al., T
Defendants. 0 I p
U Appeal iirom the United States District Court
for the District of Arizona _
, Roslyn O. Silver, District-Judge, Presiding
Submitted September 11, 2006 " _ .
Before: . PREGERSON, T.G. NELSON, and GRABER, Circuit Judges.
' This disposition is not appropriate for publication and may not be .
cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
" The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2). _
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Arizona state prisoner Timothy Lec Ward appeals pro se from the district
court’s summary judgment in favor of defendant Bennett in his 42 U.S.C. § 1983 ‘
action, as well as its earlier order dismissing claims under the screening provisions
of the Prison Litigation Reform Act. We have jurisdiction under 28 U.S.C. §
1291. We review de novo. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004)
(summary judgment); Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)
(dismissal of a complaint under 28 U.S.C. § 1915A for failure to state a claim).
We affirm in part, vacate in part, and remand.
_ The district court properly granted summary judgment on Ward’s access to
courts claim, because the record shows defendant Bennett was on leave from his
job during the time in question, and Ward failed to follow the district court’s
instructions regarding the procedure for filing an amended complaint to add new
defendants. Cf Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)
(concluding district court did not abuse its discretion in dismissing action after
appellant failed to comply with court order requiring him to retile al second
amended complaint). Accordingly, the evidence fails to establish a genuine issue I
1 of material fact as to whether the alleged acts of the named defendant caused an
actual injury. See Lewis v. Casey, 518 U.S. 343, 349 (1996). I
. l ~ 2 I
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The district court also properly dismissed Ward’s claim that his property
was improperly removed from his cell because Ward has an adequate
post-deprivation remedy under Arizona law. See Barnet! v. Centoni, 3 1 F .3d 813,
815-16 (9th Cir. 1994); Howland v. State, 169 Ariz. 293, 818 P.2d 1169, 1172-73
(1991).
It is unclear from the record, however, whether Ward’s alleged continement
in administrative segregation constituted an '“atypical and significant hardship"
that triggered due process protections. See Ramirez v. Galaza,3 34 F .3d 850, 861
(9th Cir. 2003) (remanding for consideration of factors discussed in Sandia v.
n Conner, 515 U.S. 472, 486-87 (1995)); Jackson v. Carey, 353 F.3d 750, 756-57
(9th Cir. 2003). Accordingly, we remand to the district court for further _
consideration.
y On remand, the district court should also consider whether Ward’s first
amended complaint alleged facts sufiicient to state a claim for retaliation as
discussed in the intervening case Austin v. Terhzme, 367 F.3d 1167, 1170-71 (9th
Cir. 2004). n .
_ We sua sponte revoke this court’s April 17, 2006 Order revoking Wardfs in
forma pauperis status. The clerk is ordered to restore Ward’s in forma pauperis
_ 3
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status, recall the mandate issued 5.30.06, and reinstate this appeal. -
. AFFIRMED in part, VACATED in part; REMANDED.
4 4
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