                                                                            FILED
                            NOT FOR PUBLICATION                             DEC 04 2014

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



                             FOR THE NINTH CIRCUIT


JOHNNY R. ANDOE,                                 No. 13-35215

               Plaintiff - Appellant,            D.C. No. 1:11-cv-00569-CWD

  v.
                                                 MEMORANDUM*
BRENT REINKE; SUE SUMMERTON,
Staff in charge of NICI mail,

               Defendants - Appellees.


                    Appeal from the United States District Court
                              for the District of Idaho
                    Candy W. Dale, Magistrate Judge, Presiding**

                          Submitted November 18, 2014***

Before:        LEAVY, FISHER, and N.R. SMITH, Circuit Judges.

       Johnny R. Andoe, an Idaho state prisoner, appeals pro se from the district

court’s judgment dismissing without prejudice his 42 U.S.C. § 1983 alleging

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
       ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
constitutional violations in connection with Andoe’s legal mail and the prison’s

provision of hygiene items and legal supplies. We have jurisdiction under 28

U.S.C. § 1291. We review de novo. Hamilton v. Brown, 630 F.3d 889, 892 (9th

Cir. 2011) (dismissal under 28 U.S.C. § 1915A); Barren v. Harrington, 152 F.3d

1193, 1194 (9th Cir. 1998) (order) (dismissal under 28 U.S.C. § 1915(e)(2)). We

affirm.

      The district court properly dismissed Andoe’s First Amendment claim

asserting that the alleged failure to mail his May 12, 2011 letter was the cause of

his current confinement because success on that claim would necessarily imply the

invalidity of the fact or duration of Andoe’s confinement, and Andoe did not allege

that his conviction has been overturned. See Wilkinson v. Dotson, 544 U.S. 74, 81-

82 (2005) (“[A] state prisoner’s § 1983 action is barred (absent prior

invalidation)—no matter the relief sought (damages or equitable relief), no matter

the target of the prisoner’s suit (state conduct leading to conviction or internal

prison proceedings)—if success in that action would necessarily demonstrate the

invalidity of confinement or its duration.”).

      The district court properly dismissed Andoe’s Eighth Amendment claim

because Andoe failed to allege facts sufficient to show that he was denied any

required hygiene item, or that the prison indigency policy forced him to choose


                                           2                                     13-35215
between hygiene items and legal supplies. Cf. Gluth v. Kangas, 951 F.2d 1504,

1508-09 (9th Cir. 1991) (prison indigency policy was unconstitutional where it

forced indigent inmates to choose between purchasing required hygiene items and

essential legal supplies in light of outdated indigency threshold and punishment for

lack of hygiene).

      The district court properly dismissed Andoe’s First Amendment claim

alleging insufficient access to legal materials because Andoe alleged no actual

injury. See Lewis v. Casey, 518 U.S. 343, 351 (1996) (setting forth actual injury

requirement in access-to-courts claims).

      We do not address 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)

(per curiam).

      AFFIRMED.




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