United States v. 2020-11-16 | 19-35645 | SHAWN KESLING V. HENRY ATENCIO | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SHAWN M. KESLING,

Plaintiff-Appellant,

v.

HENRY ATENCIO, Former Director, Idaho
Department of Corrections; et al.,

Defendants-Appellees.

No. 19-35645

D.C. No. 1:18-cv-00568-BLW

MEMORANDUM
*

Appeal from the United States District Court
for the District of Idaho
B. Lynn Winmill, District Judge, Presiding

Submitted November 9, 2020
**

Before: THOMAS, Chief Judge, TASHIMA and W. FLETCHER, Circuit Judges.

Idaho state prisoner Shawn M. Kesling appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging constitutional
claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.
Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (dismissal under 28 U.S.C.

*
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

NOV 16 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

2 19-35645
§ 1915(e)(2)(B)(ii)); Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000)
(dismissal under 28 U.S.C. § 1915A). We affirm.
The district court properly dismissed Kesling’s access-to-courts claim
because Kesling failed to allege facts sufficient to show that any defendant caused
an actual injury to a nonfrivolous claim. See Lewis v. Casey, 518 U.S. 343, 349-53
(1996) (elements of an access-to-courts claim and actual injury requirement); see
also Christopher v. Harbury, 536 U.S. 403, 415, 417 (2002) (to plead an actual
injury, the complaint “should state the underlying claim in accordance with Federal
Rule of Civil Procedure 8(a),[ ] just as if it were being independently pursued”).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or 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.