FILED
NOT FOR PUBLICATION JUL 05 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
NOEL RAY SMITH, No. 10-55980
Plaintiff - Appellant, D.C. No. 2:10-cv-01725-SJO-AN
v.
MEMORANDUM *
E. J. SMITH; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Submitted June 15, 2011 **
Before: CANBY, O’SCANNLAIN, and FISHER, Circuit Judges.
California state prisoner Noel Ray Smith appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging violations of his
First and Fourteenth Amendment rights. We have jurisdiction under 28 U.S.C.
§ 1291. We may affirm on any ground supported by the record. Lambert v.
*
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).
Blodgett, 393 F.3d 943, 965 (9th Cir. 2004). We affirm in part, vacate in part, and
remand.
Smith’s due process claim fails to state a claim for relief because he alleges
no facts that give rise to a liberty interest. See Sandin v. Conner, 515 U.S. 472,
487 (1995) (requiring “atypical and significant hardship on the inmate in relation
to the ordinary incidents of prison life” or a restraint that exceeds the prisoner’s
sentence in “an unexpected manner” to state a liberty interest; “The chance that a
finding of misconduct will alter the balance [at a prisoner’s parole hearing] is
simply too attenuated to invoke the procedural guarantees of the Due Process
Clause”). Accordingly, the district court properly dismissed this claim.
The district court dismissed Smith’s action under Fed. R. of Civ. P. 41(b) for
failure to file first amended complaint alleging only Smith’s First Amendment
claim in a timely manner. However, the record reflects that Smith delivered to the
prison authorities a first amended complaint by the deadline set forth in the court’s
previous orders. See Douglas v. Noelle, 567 F.3d 1103, 1106-07 (9th Cir. 2009)
(discussing prison mailbox rule). Accordingly, we vacate in part and remand for
further proceedings on Smith’s First Amendment claim.
Smith’s remaining contentions, including those raised in his objections to
the magistrate judge’s order, are unavailing.
2 10-55980
Smith’s motion to proceed in forma pauperis is denied as moot because he
has already been granted in forma pauperis status.
Smith shall bear his own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.
3 10-55980