                                                                           FILED
                             NOT FOR PUBLICATION                            OCT 17 2012

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




                             FOR THE NINTH CIRCUIT



WILLIE T. SMITH,                                 No. 11-16493

               Plaintiff - Appellant,            D.C. No. 2:10-cv-01415-JCM-RJJ

  v.
                                                 MEMORANDUM *
DWIGHT NEVENS, Warden; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Nevada
                     James C. Mahan, District Judge, Presiding

                             Submitted October 9, 2012 **

Before:        RAWLINSON, MURGUIA, and WATFORD, Circuit Judges.

       Nevada state prisoner Willie T. Smith appeals pro se from the district court’s

judgment dismissing his 42 U.S.C. § 1983 action for failure to state a claim and

failure to exhaust administrative remedies. We have jurisdiction under 28 U.S.C.




          *
             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).
§ 1291. We review de novo. Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.

2003) (dismissal for failure to exhaust); Barren v. Harrington, 152 F.3d 1193,

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

affirm.

      The district court properly dismissed Smith’s Fourth Amendment claim

alleging an unlawful search because prisoners have no constitutional right to

privacy in their cells. See Hudson v. Palmer, 468 U.S. 517, 526 (1984) (“[T]he

Fourth Amendment proscription against unreasonable searches does not apply

within the confines of the prison cell.”).

      The district court properly dismissed Smith’s Fourteenth Amendment claim

alleging denial of access to education and employment because there is no

constitutional or state-created right to rehabilitation programs in prison. See Nev.

Rev. Stat. § 209.389(4) (offenders do not have a right to educational and

vocational programs); Rizzo v. Dawson, 778 F.2d 527, 531 (9th Cir. 1985)

(“[T]here is no constitutional right to rehabilitation.”).

      The district court properly dismissed Smith’s Fourteenth Amendment due

process claim because Smith’s decision to remain silent does not render his

disciplinary proceeding unconstitutional. See Baxter v. Palmigiano, 425 U.S. 308,




                                             2                                  11-16493
319-20 (1976) (Fifth Amendment does not forbid adverse inferences against a

prisoner who remains silent in disciplinary proceedings).

      The district court properly dismissed Smith’s retaliation claims without

prejudice because Smith did not exhaust prison grievance procedures concerning

those claims and failed to show that exhaustion was effectively unavailable. See

Woodford v. Ngo, 548 U.S. 81, 93-95 (2006) (exhaustion is mandatory and must be

done in a timely manner consistent with prison policies); Nunez v. Duncan, 591

F.3d 1217, 1224 (9th Cir. 2010) (excusing prisoner’s failure to exhaust where

prisoner is prevented from doing so).

      Smith’s contentions that the district court should have requested counsel for

him and granted his motion to receive free copies are unpersuasive.

      AFFIRMED.




                                         3                                   11-16493
