FILED
UNITED STATES COURT OF APPEALS MAY 19 2010
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S . CO U RT OF AP PE A LS
EDWARD G. ONTIVEROS, No. 08-15556
Plaintiff - Appellant, D.C. No. 06-CV-00233-LKK
Eastern District of California,
v. Sacramento
SCOTT KERNAN; et al.,
ORDER
Defendants - Appellees.
Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.
We instruct the Clerµ to withdraw the memorandum disposition filed on
March 9, 2010, and to file the attached memorandum disposition simultaneously
with this order.
We deny Edward G. Ontiveros's petition for panel rehearing.
We deny Ontiveros's renewed request for appointment of counsel. We deny
Ontiveros's request for judicial notice of the 2004 parole hearing transcript because
this document is already part of the record on appeal.
No further filings will be accepted in this closed case.
FILED
NOT FOR PUBLICATION MAY 19 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
EDWARD ONTIVEROS, No. 08-15556
Plaintiff - Appellant, D.C. No. 2:06-CV-00233-LKK
v.
MEMORANDUM *
SCOTT KERNAN; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, District Judge, Presiding
Submitted February 16, 2010**
Before: FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.
California state prisoner Edward Ontiveros appeals pro se from the district
court's summary judgment in his 42 U.S.C. y 1983 action alleging due process
violations by prison officials. We have jurisdiction pursuant to 28 U.S.C. y 1291.
*
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).
We review de novo summary judgment, Toguchi v. Chung, 391 F.3d 1051, 1056
(9th Cir. 2004), and may affirm on any grounds supported by the record, United
States v. State of Washington, 969 F.2d 752, 755 (9th Cir. 1992). We affirm.
The district court properly granted summary judgment on Ontiveros's claim
that defendants violated his due process rights in two disciplinary hearings because
the undisputed evidence shows that as a result of Ontiveros's successful grievances
the prison officials overturned all disciplinary action arising from these hearings.
Summary judgment was proper as to Ontiveros's claim that the informational
chronos that remain in his file, and the dismissed rules violations report or reports
that apparently remain in his file, influenced past parole decisions or are liµely to
influence future parole board decisions; 'the possibility of denial of parole at some
later date does not amount to the denial of a liberty interest.' Burnsworth v.
Gunderson, 179 F.3d 771, 774 n.3 (9th Cir. 1999). Because Ontiveros cannot
show the denial of a protected right, he cannot obtain an order expunging the
documents. See id. at 773 ('[A] district court commits error if it orders
expungement of a disciplinary conviction after concluding that defendants had not
violated plaintiff's rights.'); see also Sandin v. Conner, 515 U.S. 472, 487 (1995)
('The chance that a finding of misconduct will alter the balance [at a prisoner's
2 08-15556
parole hearing] is simply too attenuated to invoµe the procedural guarantees of the
Due Process Clause').
The district court did not abuse its discretion in denying Ontiveros's request
for additional discovery under Rule 56(f) because Ontiveros did not show how
allowing him additional discovery would have precluded summary judgment. See
Margolis v. Ryan, 140 F.3d 850, 853-54 (9th Cir. 1998) (reviewing for an abuse of
discretion the denial of Rule 56(f) motion and upholding denial where 'appellants
failed to identify facts, either discovered or liµely to be discovered, that would
support their y 1983 claim').
Ontiveros's remaining contentions are unpersuasive.
Ontiveros's motion for appointment of counsel is denied.
AFFIRMED.
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