Christopher Eugene Thomas v. CHARLES L. RYAN, Warden, named as: Charles Ryan - Director, Arizona Department of…

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHRISTOPHER EUGENE THOMAS,
Plaintiff-Appellant,
v.
CHARLES L. RYAN, Warden, named as:
Charles Ryan - Director, Arizona
Department of Corrections; et al.,
Defendants-Appellees.
No. 17-16588
D.C. No. 2:16-cv-03559-JJT-MHB
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
John Joseph Tuchi, District Judge, Presiding
Submitted August 15, 2018**
Before: FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.
Arizona state prisoner Christopher Eugene Thomas appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging access-to-
courts claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a
* 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
AUG 21 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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dismissal under 28 U.S.C. § 1915A. Resnick v. Hayes, 213 F.3d 443, 447 (9th
Cir. 2000). We may affirm on any basis supported by the record. Johnson v.
Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008). We affirm.
The district court properly dismissed Thomas’ access-to-courts claim
relating to defendants’ submission of allegedly false information and concealing of
material facts in CV 12-01719-PHX-FJM, because Thomas failed to allege facts
sufficient to show that defendants caused actual injury. See Lewis v. Casey, 518
U.S. 343, 348-53 (1996) (setting forth elements of an access-to-courts claim and
actual injury requirement).
Dismissal of Thomas’ access-to-courts claim relating to CV 16-01109-PHX-
JJT was proper because Thomas cannot show actual injury given that the operative
complaint in CV 16-01109-PHX-JJT was dismissed without prejudice and Thomas
was able to refile that claim in the instant action. See id.
The district court did not abuse its discretion by dismissing the complaint
without leave to amend because further amendment would be futile. See Cervantes
v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting
forth standard of review and explaining that a district court may dismiss without
leave to amend where amendment would be futile).
The district court did not abuse its discretion by denying Thomas’ motion
for appointment of counsel because Thomas failed to demonstrate exceptional

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circumstances. See Cano v. Taylor, 739 F.3d 1214, 1218 (9th Cir. 2014) (setting
forth standard of review and requirements for appointment of counsel).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.

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