NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 13 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
STANLEY RIMER; et al., No. 17-17509
Plaintiffs-Appellants, D.C. No. 3:17-cv-00281-MMD-
WGC
v.
LUCINDA L. COUMOU; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, District Judge, Presiding
Submitted July 10, 2018**
Before: CANBY, W. FLETCHER, and CALLAHAN, Circuit Judges.
Nevada state prisoners Stanley Rimer, Brian Kerry O’Keefe, John H. Rosky,
and Richard Allen Lancaster appeal pro se from the district court’s judgment
dismissing their 42 U.S.C. § 1983 action alleging constitutional claims on the basis
of the state court’s transfer of their state habeas corpus petitions to the courts in
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
which their respective criminal cases were adjudicated. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo. Watison v. Carter, 668 F.3d 1108,
1112 (9th Cir. 2012) (dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii)); Resnick v.
Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (dismissal under 28 U.S.C. § 1915A).
We affirm.
The district court properly dismissed appellants’ action with prejudice
because appellants failed to allege facts sufficient to state a plausible claim or facts
sufficient to show a deprivation of a constitutional right caused by the transfer of
their petitions. See Hebbe v. Pliler, 627 F.3d 338, 341-43 (9th Cir. 2010)
(although pro se pleadings are construed liberally, a plaintiff must present factual
allegations sufficient to state a plausible claim for relief; an access-to-courts claim
requires an actual injury); see also County of Sacramento v. Lewis, 523 U.S. 833,
845-46 (1998) (the touchstone of due process is protection against arbitrary action
of the government); West v. Atkins, 487 U.S. 42, 48 (1988) (elements of a § 1983
claim); City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (a Monell claim
cannot survive in the absence of an underlying constitutional violation).
The district court did not abuse its discretion by denying leave to file a
second amended complaint because amendment would have been futile. See
Chappel v. Lab. Corp. of Am., 232 F.3d 719, 725-26 (9th Cir. 2000) (setting forth
standard of review and explaining that “[a] district court acts within its discretion
2 17-17509
to deny leave to amend when amendment would be futile”).
We reject as unsupported by the record appellants’ contention that the
district court did not adequately address their objections to the magistrate judge’s
Report & Recommendation.
Appellants’ requests for an evidentiary hearing and appointment of counsel,
set forth in the opening brief, are denied.
AFFIRMED.
3 17-17509