Tony Tran v. D. Davey

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 26 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

TONY TRAN, No. 17-16175

Plaintiff-Appellant, D.C. No. 1:15-cv-01591-LJO-BAM

v.
MEMORANDUM*
D. DAVEY, Warden, Corcoran State Prison,

Defendant-Appellee.

Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, Chief Judge, Presiding

Submitted October 23, 2017**

Before: McKEOWN, WATFORD, and FRIEDLAND, Circuit Judges.

California state prisoner Tony Tran appeals pro se from the district court’s

judgment dismissing his 42 U.S.C. § 1983 action alleging interference with mail

and violation of Tran’s right to access the courts. We have jurisdiction under 28

U.S.C. § 1291. We review de novo a dismissal for failure to state a claim under 28

*
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).
U.S.C. § 1915A. Hamilton v. Brown, 630 F.3d 889, 892 (9th Cir. 2011). We

affirm.

The district court properly dismissed Tran’s action because Tran failed to

allege facts sufficient to show that defendant personally participated in the alleged

rights deprivation. See Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002)

(outlining requirement of personal participation in alleged constitutional violation);

see also Starr v. Baca, 652 F.3d 1202, 1207-08 (9th Cir. 2011) (elements for

supervisory liability under § 1983).

The district court did not abuse its discretion by denying Tran’s motion for

appointment of counsel because Tran did not establish exceptional circumstances.

See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (setting forth standard of

review and “exceptional circumstances” requirement).

We do not consider arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.

2 17-16175