Robert Garcia v. M. Lunes

FILED
NOT FOR PUBLICATION JUL 1 2011

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

FOR THE NINTH CIRCUIT

ROBERT JOSEPH GARCIA, No. 10-15944

Plaintiff - Appellant, D.C. No. 1:06-cv-00167-JAT

v.
MEMORANDUM *
M. LUNES; et al.,

Defendants - Appellees.

Appeal from the United States District Court
for the Eastern District of California
James A. Teilborg, District Judge, Presiding

Submitted June 15, 2011 **

Before: CANBY, O’SCANNLAIN, and FISHER, Circuit Judges.

Robert Joseph Garcia, a California state prisoner, appeals pro se from the

district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging that

prison officials violated his constitutional rights by confining him in the security

housing unit (“SHU”) and administrative segregation. We have jurisdiction under

*
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).
28 U.S.C. § 1291. We review de novo a dismissal under 28 U.S.C. § 1915A.

Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). We affirm.

The district court properly dismissed as time-barred Garcia’s claim

challenging the 1996 placement in his file of information obtained from a

confidential informant. See Maldonado v. Harris, 370 F.3d 945, 954-55 (9th Cir.

2004) (discussing California’s two-year statute of limitations for § 1983 claims).

The district court properly dismissed Garcia’s due process claims relating to

his confinement in the SHU and administrative segregation because absent an

allegation of atypical and significant hardship, such confinement does not

implicate a constitutionally protected liberty interest. See Sandin v. Conner, 515

U.S. 472, 486 (1995) (disciplinary segregation does “not present the type of

atypical, significant deprivation in which a State might conceivably create a liberty

interest.”); May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997) (“[A]dministrative

segregation falls within the terms of confinement ordinarily contemplated by a

sentence.”).

The district court properly dismissed Garcia’s retaliation claims because his

conclusory allegations failed to state a claim for retaliation. See Rizzo v. Dawson,

778 F.2d 527, 532 n.4 (9th Cir. 1985) (conclusory allegations of arbitrary

retaliation are insufficient to avoid dismissal).

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 The district court properly dismissed Garcia’s access-to-courts claim

because Garcia failed to allege that defendants’ conduct resulted in an actual

injury. See Lewis v. Casey, 518 U.S. 343, 349-52 (1996).

The district court properly dismissed Garcia’s Eighth Amendment claim

alleging deliberate indifference to safety because Garcia did not allege facts

showing that he was subjected to a substantial risk of serious harm as a result of an

allegedly defamatory report. See Gaut v. Sunn, 810 F.2d 923, 925 (9th Cir. 1987)

(per curiam) (a threat does not constitute a violation of the Eighth Amendment).

The district court did not abuse its discretion in denying Garcia leave to file

a third amended complaint after granting him two opportunities to amend and

clearly instructing him on the deficiencies in his complaints. See Chodos v. West

Publ’g Co., 292 F.3d 992, 1003 (9th Cir. 2002) (the district court’s discretion is

particularly broad when it has already granted leave to amend).

Garcia’s remaining contentions are unpersuasive.

AFFIRMED.

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