FILED
NOT FOR PUBLICATION MAY 04 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JAMES SIMS, No. 10-15389
Plaintiff - Appellant, D.C. No. 1:05-cv-01523-LJO-DLB
v.
MEMORANDUM *
JEANNE WOODFORD; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Submitted April 20, 2011 **
Before: RYMER, THOMAS, and PAEZ, Circuit Judges.
James Sims, a former California state prisoner, appeals pro se from the
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging that
prison officials violated his constitutional rights by wrongly classifying him as a
sexual offender while he was incarcerated. We have jurisdiction under 28 U.S.C.
*
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).
§ 1291. We review de novo the district court’s grant of summary judgment,
Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004), and for an abuse of
discretion the district court’s decision not to continue summary judgment under
Fed. R. Civ. P. 56(f), United States v. Kitsap Physicians Serv., 314 F.3d 995, 1000
(9th Cir. 2002). We affirm.
The district court properly granted summary judgment as to Sims’s due
process claim because Sims failed to raise a genuine issue of material fact as to
whether the classification error resulted in any deprivations or changes in the
conditions of confinement constituting an “atypical and significant hardship . . . in
relation to the ordinary incidents of prison life” that would give rise to a protected
liberty interest. See Sandin v. Conner, 515 U.S. 472, 484 (1995).
The district court properly granted summary judgment as to Sim’s Eighth
Amendment claim because Sims failed to show that he suffered any injury other
than the allegedly erroneous classification itself, which resulted in his assignment
to a higher security facility and restrictions on overnight family visitations. See
Meachum v. Fano, 427 U.S. 215, 224 (1976) (no constitutional right to be housed
“in any particular prison”); Gerber v. Hickman, 291 F.3d 617, 621 (9th Cir. 2002)
(en banc) (“[I]t is well-settled that prisoners have no constitutional right while
incarcerated to contact visits or conjugal visits.”); Hoptowit v. Ray, 682 F.2d 1237,
2 10-15389
1256 (9th Cir. 1982) abrogated on other grounds by Sandin v. Conner, 515 U.S.
472 (1995) (“[M]isclassification does not itself inflict pain within the meaning of
the Eighth Amendment.”).
The district court did not abuse its discretion by not continuing defendants’
summary judgment motion until Sims received a complete copy of his deposition
transcript because Sims failed to show how an entire copy of the transcript was
necessary to defeat summary judgment. See California v. Campbell, 138 F.3d 772,
779 (9th Cir. 1998) (under Fed. R. Civ. P. 56(f), a party seeking a continuance
must submit an affidavit explaining, among other things, how the sought-after facts
are essential to resist the summary judgment motion).
Sim’s remaining contentions, including that he was denied the opportunity
to file an opposition to defendants’ motion for summary judgment, are
unpersuasive.
AFFIRMED.
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