Sean C. Fisher v. Director of Cdc;

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SEAN C. FISHER,
Plaintiff - Appellant,
v.
DIRECTOR OF CDC; et al.,
Defendants - Appellees.
No. 12-16135
D.C. No. 2:05-cv-02217-MCE-
CKD
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Submitted May 14, 2013**
Before: LEAVY, THOMAS, and MURGUIA, Circuit Judges.
Sean C. Fisher, a California state prisoner, 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 and negligence under state law. We have
jurisdiction under 28 U.S.C. § 1291 as Fisher has voluntarily dismissed with
FILED
MAY 23 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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12-16135 2
prejudice his remaining claims. See Dannenberg v. Software Toolworks, Inc., 16
F.3d 1073, 1076-78 (9th Cir. 1994) (a voluntary dismissal with prejudice precludes
possibility of later pursuing the dismissed claims). We review de novo. Ramirez
v. Galaza, 334 F.3d 850, 853 (9th Cir. 2003). We affirm.
Consistent with our prior memorandum disposition, the district court
considered Fisher’s claims that he had been denied access to the prison grievance
system and retaliated against, and properly concluded that Fisher had failed to
allege sufficient facts to state a First Amendment claim against all but two of the
named defendants because the allegations in the complaint demonstrated that
Fisher had availed himself of the grievance process on numerous occasions and his
appeals were rejected on procedural bases. See id. at 860 (inmates lack a separate
constitutional entitlement to a specific prison grievance procedure); see also
Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009) (to prevail on a retaliation
claim, a plaintiff must show that his protected conduct was the substantial or
motivating factor behind the defendant’s conduct).
Contrary to Fisher’s contentions, our prior memorandum disposition
expressed no opinion as to the sufficiency of Fischer’s allegations, but instead
simply held that the amended complaint comported with the pleading standards set
forth in Rule 8(a) of the Federal Rules of Civil Procedure.

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12-16135 3
Fischer’s contentions regarding the district court’s review of the magistrate
judge’s screening order are unsupported.
Fisher’s motion for judicial notice is granted.
Fisher’s motion for “disposition of this appeal to be designated an opinion”
is denied.
AFFIRMED.

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