Stephen A. Cherry v. Dewayne Shedd;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEPHEN A. CHERRY,
Plaintiff-Appellant,
v.
DEWAYNE SHEDD; et al.,
Defendants-Appellees.
No. 16-35921
D.C. No. 3:10-cv-00271-EJL-REB
MEMORANDUM*
Appeal from the United States District Court
for the District of Idaho
Edward J. Lodge, District Judge, Presiding
Submitted February 13, 2018**
Before: LEAVY, FERNANDEZ, and MURGUIA, Circuit Judges.
Idaho state prisoner Stephen A. Cherry appeals pro se from the district
court’s summary judgment in his 42 U.S.C. § 1983 action alleging an access-to-
courts claim. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.
Brodheim v. Cry, 584 F.3d 1262, 1267 (9th Cir. 2009). We affirm.
* 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).
FILED
FEB 22 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 16-35921
The district court properly granted summary judgment on Cherry’s
access-to-courts claim against defendant Higgins because Cherry failed to raise a
genuine dispute of material fact as to whether he suffered an actual injury as a
result of defendant Higgins’s misplacement of his legal materials. See Lewis v.
Casey, 518 U.S. 343, 348-53 (1996) (access-to-courts claim requires the plaintiff to
show that the defendants’ conduct caused actual injury to a non-frivolous legal
claim); see also Silva v. DiVittorio, 658 F.3d 1090, 1101-04 (9th Cir. 2011)
(discussing access-to-courts claims arising from “active interference”), overruled
on other grounds as stated by Richey v. Dahne, 807 F.3d 1202, 1209 n.6 (9th Cir.
2015).
AFFIRMED.

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