FILED
NOT FOR PUBLICATION OCT 07 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DARREL LEE SMITH, No. 07-16770
Plaintiff - Appellant, D.C. No. 2:04-cv-00703-MCE-
KJM
v.
J. SWANEY, Sergeant; et al., MEMORANDUM *
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Submitted September 13, 2010 **
Before: SILVERMAN, CALLAHAN, and N. R. SMITH, Circuit Judges.
Darrel Lee Smith, a California prisoner, appeals pro se from the district
court’s order dismissing, under 28 U.S.C. § 1915A, Smith’s 42 U.S.C. § 1983
action alleging retaliation and due process violations in connection with a prison
*
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).
07-16770
grievance procedure and a disciplinary proceeding. We have jurisdiction under 28
U.S.C. § 1291. We review de novo the district court’s dismissal under 28 U.S.C. §
1915A. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). We may affirm on
any ground supported by the record. McSherry v. City of Long Beach, 584 F.3d
1129, 1135 (9th Cir. 2009). We affirm.
The district court did not err by dismissing Smith’s complaint under 28
U.S.C. § 1915A. Prison grievance documents attached to the fifth amended
complaint undermine Smith’s retaliation claim by establishing that, at the time
Swaney allegedly retaliated against Smith for filing a grievance, no grievance was
on file. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988-89 (9th Cir.
2001) (document attached to complaint fatally undermined allegations). The
district court properly dismissed Smith’s claim that the defendant violated his due
process rights by cancelling his grievance because a prisoner enjoys no
constitutional right to a prison grievance procedure. See Mann v. Adams, 855 F.2d
639, 640 (9th Cir. 1988) (order) (no due process right to a prison grievance
procedure). The district court properly dismissed Smith’s claim that his
constitutional rights were violated when he was denied the opportunity to cross-
examine a witness at his prison disciplinary proceeding because the Due Process
Clause afforded Smith no such right. See Sandin v. Conner, 515 U.S. 472, 475-76,
07-16770
486 (1995) (prisoner enjoys no due process right to present witnesses at prison
disciplinary proceeding where no atypical hardship resulted).
Smith’s remaining contentions are unpersuasive.
AFFIRMED.
07-16770