Sergio Alvarez v. Robert Horel

FILED
NOT FOR PUBLICATION FEB 24 2011

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

SERGIO ALVAREZ, No. 09-17755

Plaintiff - Appellant, D.C. No. 4:07-cv-01678-SBA

v.
MEMORANDUM *
ROBERT HOREL, et al.,

Defendants - Appellees.

Appeal from the United States District Court
for the Northern District of California
Saundra B. Armstrong, District Judge, Presiding

Submitted February 15, 2011 **

Before: CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.

Sergio Alvarez, a California state prisoner, appeals pro se from the district

court’s judgment dismissing his 42 U.S.C. § 1983 action alleging interference with

his legal mail. We have jurisdiction under 28 U.S.C. § 1291. We review de novo

the district court’s dismissal of a complaint under 28 U.S.C. § 1915A for failure to

*
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).
state a claim, Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007), and we

affirm.

The district court properly dismissed Alvarez’s claim that defendant Carrier

violated his right to access the courts by opening his legal mail because Alvarez

failed to allege that he suffered an actual injury. See Lewis v. Casey, 518 U.S. 343,

346 (1996) (defining actual injury as “actual prejudice with respect to

contemplated or existing litigation, such as the inability to meet a filing deadline or

to present a claim”).

The district court properly dismissed Alvarez’s claim that defendant Carrier

violated his Sixth Amendment right to counsel by opening his legal mail because

the Sixth Amendment applies only to criminal proceedings. See Wolff v.

McDonnell, 418 U.S. 539, 576 (1974).

The district court properly dismissed Alvarez’s supervisory liability claims

against defendants Tilton, Horel, and Kirkland because Alvarez failed to allege that

these defendants “participated in or directed [any constitutional] violations, or

knew of the violations and failed to act to prevent them.” See Taylor v. List, 880

F.2d 1040, 1045 (9th Cir. 1989).

2 09-17755
 The district court did not abuse its discretion by denying Alvarez’s request

for appointment of counsel because he failed to show exceptional circumstances.

See Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1980) (per curiam).

AFFIRMED.

3 09-17755