                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                       AUG 11 2020
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

RALPH HOWARD BLAKELY,                           No.    19-35500

                Plaintiff-Appellant,            D.C. No. 3:18-cv-05021-RBL

 v.
                                                MEMORANDUM*
GREGORY JONES, in his individual
capacity; et al.,

                Defendants-Appellees.

                   Appeal from the United States District Court
                     for the Western District of Washington
                   Ronald B. Leighton, District Judge, Presiding

                            Submitted August 5, 2020**

Before:      SCHROEDER, HAWKINS, and LEE, Circuit Judges.

      Washington state prisoner Ralph Howard Blakely appeals pro se from the

district court’s summary judgment in his 42 U.S.C. § 1983 action alleging

constitutional claims. We have jurisdiction under 28 U.S.C. § 1291. We review de

novo. Toguchi v. Chung, 391 F.3d 1051, 1056 (9th Cir. 2004). 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).
      The district court properly granted summary judgment on Blakely’s access-

to-courts claim because Blakely failed to raise a genuine dispute of material fact as

to whether defendants caused an actual injury to a nonfrivolous claim. See Lewis

v. Casey, 518 U.S. 343, 348-49, 354-55 (1996) (elements of an access-to-courts

claim and actual injury requirement).

      The district court properly granted summary judgment on Blakely’s

retaliation claim because Blakely failed to raise a triable dispute as to whether

defendants took an adverse action against him because of his protected activity.

See Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (elements of a

retaliation claim in the prison context).

      The district court properly granted summary judgment on Blakely’s due

process claim because Blakely failed to raise a triable dispute as to whether

defendants violated his substantive or procedural due process rights by

confiscating his legal property. See Sandin v. Conner, 515 U.S. 472, 483-85

(1995) (a prisoner has no federal or state protected liberty interest when the

sanction imposed neither extends the length of his sentence nor imposes an

“atypical and significant hardship on the inmate in relation to the ordinary

incidents of prison life”); Hudson v. Palmer, 468 U.S. 517, 533 (1984) (“[A]n

unauthorized intentional deprivation of property by a state employee does not

constitute a violation of the procedural requirements of the Due Process Clause of


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the Fourteenth Amendment if a meaningful postdeprivation remedy for the loss is

available.”); see also Wash. Rev. Code §§ 4.92.090, 4.96.010.

      The district court properly granted summary judgment on Blakely’s equal

protection claim because Blakely failed to raise a triable dispute as to whether

defendants intentionally discriminated against him on the basis of his age or

disability. See Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013) (plaintiff

alleging an equal protection claim must show that defendants acted with an intent

or purpose to discriminate based upon plaintiff’s membership in a protected class).

      The district court properly granted summary judgment on Blakely’s

deliberate indifference claim because Blakely failed to raise a triable dispute as to

whether defendants personally participated in the alleged rights deprivation. See

Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002) (liability under § 1983

requires showing of personal participation in the alleged rights deprivation).

      The district court properly granted summary judgment on Blakely’s

conditions-of-confinement claim because a judgment in his favor on this claim

would necessarily imply the invalidity of his conviction, and Blakely failed to

demonstrate that his conviction has been invalidated. See Heck v. Humphrey, 512

U.S. 477, 487 (1994) (if “a judgment in favor of the plaintiff would necessarily

imply the invalidity of his conviction or sentence . . . the complaint must be

dismissed unless the plaintiff can demonstrate that the conviction or sentence has


                                          3                                      19-35500
already been invalidated.”).

      The district court did not abuse its discretion by denying Blakely’s motions

for appointment of counsel because Blakely failed to demonstrate exceptional

circumstances. See Cano v. Taylor, 739 F.3d 1214, 1218 (9th Cir. 2014) (standard

of review and requirements for appointment of counsel).

      We reject as without merit Blakely’s contentions that the district court was

biased or violated his equal protection rights.

      We do not consider matters not specifically and distinctly raised and argued

in the opening brief, arguments and allegations raised for the first time on appeal,

or arguments incorporated by reference into the briefs. See Padgett v. Wright, 587

F.3d 983, 985 n.2 (9th Cir. 2009); Indep. Towers of Wash. v. Washington, 350 F.3d

925, 929 (9th Cir. 2003).

      We do not consider Blakely’s renewed request for appointment of counsel

set forth in his briefs. In Docket Entry No. 3, this court denied Blakely’s motion

for appointment of counsel and ordered that no motions for reconsideration,

clarification, or modification of the denial shall be filed or entertained.

      Blakely’s request set forth in his reply brief for a copy of his brief is granted.

The Clerk will provide Blakely with copies of the reply brief and docket sheet.

      All other pending motions and requests are denied.

      AFFIRMED.


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