                                                                           FILED
                              NOT FOR PUBLICATION                           MAR 06 2012

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT



KENNETH JEROME PACKNETT,                          No. 10-17529

                Plaintiff - Appellant,            D.C. No. 5:09-cv-00327-JF

  v.
                                                  MEMORANDUM *
R. WINGO; et al.,

                Defendants - Appellees.



                     Appeal from the United States District Court
                        for the Northern District of California
                      Jeremy D. Fogel, District Judge, Presiding

                             Submitted February 21, 2012 **

Before:         FERNANDEZ, McKEOWN, and BYBEE, Circuit Judges.

       California state prisoner Kenneth Jerome Packnett appeals pro se from the

district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging federal

and state law claims related to his incoming legal mail. We have jurisdiction under



            *
             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).
28 U.SC. § 1291. We review de novo, Knievel v. ESPN, 393 F.3d 1068, 1072 (9th

Cir. 2005), and may affirm on any ground supported by the record. Johnson v.

Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008). We affirm in

part, reverse in part, and remand.

      Dismissal of Packnett’s claims for damages against state officials in their

official capacity was proper under the Eleventh Amendment. See Flint v.

Dennison, 488 F.3d 816, 824-25 (9th Cir. 2007).

      The district court properly dismissed Packnett’s conspiracy claim against

defendants in their individual capacity because Packnett failed to allege that they

entered into an agreement to interfere with his legal mail. See Ivey v. Bd. of

Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982) (vague and

conclusory allegations of official participation in civil rights violations are not

sufficient to withstand dismissal).

      The district court properly dismissed Packnett’s access-to-courts claim

against defendants in their individual capacity because Packnett conceded that he

did not suffer any injury. See Jones v. Blanas, 393 F.3d 918, 936 (9th Cir. 2004).

      However, dismissal of Packnett’s denial-of-mail claims against defendants

in their individual capacity was improper because Packnett sufficiently alleged that

defendants opened various pieces of his legal mail outside his presence in


                                            2                                     10-17529
violation of state regulations and the First Amendment. See Cal. Code Regs., tit.

15 § 3143; see also Sherman v. MacDougall, 656 F.2d 527, 528 (9th Cir. 1981)

(remanding for a hearing the inmate’s claim that defendants opened mail from his

attorneys outside his presence in violation of the First Amendment).

      Dismissal of Packnett’s retaliation claim against defendants in their

individual capacity was also improper because Packnett alleged that his First

Amendment rights were chilled when defendants searched his cell, seized his

property, and otherwise retaliated against him for filing grievances. See Rhodes v.

Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (elements of retaliation claim).

      Arguments raised for the first time on appeal, including whether Packnett

satisfied the claims presentation requirement, are deemed waived. See Smith v.

Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).

       We decline to address issues that may benefit from further development of

the record, including whether defendants are entitled to qualified immunity and

whether certain defendants were not personally involved in any alleged violation.

      On remand, the district court should decide whether to exercise

supplemental jurisdiction over the state law claims in Packnett’s complaint.

      The parties shall bear their own costs on appeal.

      AFFIRMED in part, REVERSED in part, and REMANDED.


                                          3                                     10-17529
