FILED
NOT FOR PUBLICATION AUG 17 2011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 P. SMITH, III, No. 08-15506
Plaintiff - Appellant, D.C. No. 1:93-CV-05390-AWI-
DLB
v.
JAMES GOMEZ, MEMORANDUM *
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, Chief Judge, Presiding
Submitted August 11, 2011 **
Before: THOMAS, SILVERMAN, and CLIFTON, Circuit Judges.
Robert P. Smith, III, a California state prisoner, appeals pro se from the
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging that
defendant violated his right of access to the courts. We have jurisdiction under 28
*
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). Accordingly, Smith’s
request for oral argument is denied.
U.S.C. § 1291. We review de novo, Jones v. Blanas, 393 F.3d 918, 926 (9th Cir.
2004), and we affirm.
The district court properly granted summary judgment because Smith failed
to raise a genuine dispute of material fact as to whether he suffered an actual injury
as a result of defendant classifying him as non-indigent and denying him free legal
copies. See Lewis v. Casey, 518 U.S. 343, 350-53 (1996) (access-to-courts claim
requires plaintiff to show that defendants’ conduct caused actual injury to a
non-frivolous legal claim).
Smith’s challenges to the district court’s denial of his motions for injunctive
relief are either moot or will not be considered by this court under the doctrine of
law of the case. See Teamsters Joint Council No. 42 v. Int’l Bhd. of Teamsters,
AFL-CIO, 82 F.3d 303, 307 (9th Cir. 1996) (“Affirmance of the district court’s
grant of summary judgment moots the preliminary injunction appeal.”); see also
United States v. Alexander, 106 F.3d 874, 876 (9th Cir. 1997) (“[A] court is
generally precluded from reconsidering an issue that has already been decided by
the same court, or a higher court in the identical case.” (citation and internal
quotation marks omitted)).
The district court did not abuse its discretion in denying Smith’s discovery
requests because Smith has not shown that he suffered any prejudice. See Laub v.
2 08-15506
U.S. Dep’t of Interior, 342 F.3d 1080, 1093 (9th Cir. 2003) (district court’s “broad
discretion to permit or deny discovery . . . will not be disturbed except upon the
clearest showing that the denial of discovery results in actual and substantial
prejudice” (citation and internal quotation marks omitted)).
The district court did not abuse its discretion in denying Smith’s motion for
leave to amend, filed 10 years after initiation of the lawsuit. See Zivkovic v. S. Cal.
Edison Co., 302 F.3d 1080, 1087 (9th Cir. 2002) (reviewing for abuse of discretion
and stating that a district court may deny a motion for leave to amend if permitting
the amendment would unduly delay the litigation or prejudice the opposing party).
The district court did not abuse its discretion in denying Smith’s motions for
appointment of counsel because Smith failed to establish exceptional
circumstances. See Agyeman v. Corr. Corp. of Am., 390 F.3d 1101, 1103 (9th Cir.
2004) (setting forth standard of review and requirements for appointment of
counsel).
Smith’s remaining contentions are unpersuasive.
Smith’s motion to file his Reply Brief one day late is granted. The Clerk
shall file the Reply Brief received May 19, 2011.
AFFIRMED.
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