FILED
NOT FOR PUBLICATION OCT 06 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GERALD DEAN DE CRUZ, No. 15-16683
Plaintiff-Appellant, D.C. No. 3:15-cv-01930-TEH
v.
MEMORANDUM*
A. PANIZZA, Correctional Officer,
Defendant-Appellee.
Appeal from the United States District Court
for the Northern District of California
Thelton E. Henderson, District Judge, Presiding
Submitted September 27, 2016**
Before: TASHIMA, SILVERMAN, and M. SMITH, Circuit Judges.
California state prisoner Gerald Dean de Cruz appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging a First
Amendment access-to-courts claim and a Sixth Amendment claim relating to his
confidential legal mail. We have jurisdiction under 28 U.S.C. § 1291. We review
*
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).
de novo a dismissal under 28 U.S.C. § 1915A for failure to state a claim.
Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014). We affirm in part, vacate in
part, and remand.
The district court properly dismissed Cruz’s access-to-courts claim because
Cruz failed to allege facts sufficient to show that he suffered an actual injury from
defendant’s alleged conduct. See Lewis v. Casey, 518 U.S. 343, 348-349, 351
(1996) (to state an access-to-courts claim, a prisoner must allege “actual injury”).
However, the district court failed to consider whether the amended
complaint states a Sixth Amendment claim on the basis that defendant opened and
“presumably” read confidential correspondence between Cruz and his criminal
defense attorneys outside of Cruz’s presence. See Nordstrom, 762 F.3d at 911
(“[A]llegations that prison officials read [an inmate’s] legal mail . . . and that [the
inmate’s] right to private consultation with counsel has been chilled state a Sixth
Amendment claim”). Therefore, we vacate the judgment in part and remand for
further proceedings on this claim only. We express no opinion as to whether the
amended complaint states a Sixth Amendment claim.
AFFIRMED in part, VACATED in part, and REMANDED.
2 15-16683