NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 21 2010
MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS
BRIAN KEITH BARNETT, No. 09-15634
Plaintiff - Appellant, D.C. No. C 06-0193 CW (PR)
v.
MEMORANDUM *
MICHAEL EVANS, Warden; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Claudia Wilken, District Judge, Presiding
Submitted May 25, 2010 **
Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.
Brian Keith Barnett, a California state prisoner, appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging due
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
09-15634
process violations and denial of access to courts. We have jurisdiction under 28
U.S.C. § 1291. We review de novo a dismissal under Federal Rule of Civil
Procedure 12(b)(6), Nelson v. Heiss, 271 F.3d 891, 893 (9th Cir. 2001), and under
Rule 25(a), Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994). We affirm.
The district court properly dismissed Barnett’s claims against Officer
Younce after defendants filed and served notice of his death and no party filed a
motion to substitute Younce’s successor. See Fed. R. Civ. P. 25(a)(1). Contrary to
Barnett’s contention, the district court was not required sua sponte to substitute a
successor since Younce was sued in his individual, not his official, capacity. Cf.
Fed. R. Civ. P. 25(d)(1) (automatic substitution for public officials sued in their
official capacity if they die, resign, or cease to hold office while action is pending).
The district court also properly dismissed Barnett’s due process claim for
alleged deprivation of personal property because random and unauthorized
deprivations are not cognizable under section 1983. See Hudson v. Palmer, 468
U.S. 517, 533 (1984) (section 1983 provides a remedy only for deprivations under
an established state procedure because the state cannot predict or protect against
random deprivations and available post-deprivation remedies satisfy due process).
Finally, the district court properly dismissed Barnett’s claim for denial of
access to courts related to the deprivation of legal materials because Barnett failed
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to allege facts showing the requisite injury as a result of defendants’ actions. See
Lewis v. Casey, 518 U.S. 343, 348-49 (1996) (requiring actual injury like prejudice
to contemplated or existing litigation for claim of denial of access to courts).
Barnett’s remaining contentions are unpersuasive.
AFFIRMED.
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