                                                                            FILED
                     UNITED STATES COURT OF APPEALS                          MAY 19 2010

                                                                         MOLLY C. DWYER, CLERK
                             FOR THE NINTH CIRCUIT                        U.S . CO U RT OF AP PE A LS




EDWARD G. ONTIVEROS,                              No. 08-15556

              Plaintiff - Appellant,              D.C. No. 06-CV-00233-LKK
                                                  Eastern District of California,
  v.                                              Sacramento

SCOTT KERNAN; et al.,
                                                  ORDER
              Defendants - Appellees.



Before:      FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.

       We instruct the Clerµ to withdraw the memorandum disposition filed on

March 9, 2010, and to file the attached memorandum disposition simultaneously

with this order.

       We deny Edward G. Ontiveros's petition for panel rehearing.

       We deny Ontiveros's renewed request for appointment of counsel. We deny

Ontiveros's request for judicial notice of the 2004 parole hearing transcript because

this document is already part of the record on appeal.

       No further filings will be accepted in this closed case.
                                                                           FILED
                             NOT FOR PUBLICATION                            MAY 19 2010

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U.S . CO U RT OF AP PE A LS




                             FOR THE NINTH CIRCUIT



EDWARD ONTIVEROS,                                No. 08-15556

               Plaintiff - Appellant,            D.C. No. 2:06-CV-00233-LKK

  v.
                                                 MEMORANDUM *
SCOTT KERNAN; et al.,

               Defendants - Appellees.



                     Appeal from the United States District Court
                        for the Eastern District of California
                    Lawrence K. Karlton, District Judge, Presiding

                            Submitted February 16, 2010**

Before:        FERNANDEZ, GOULD, and M. SMITH, Circuit Judges.

       California state prisoner Edward Ontiveros appeals pro se from the district

court's summary judgment in his 42 U.S.C. y 1983 action alleging due process

violations by prison officials. We have jurisdiction pursuant to 28 U.S.C. y 1291.

          *
             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).
We review de novo summary judgment, Toguchi v. Chung, 391 F.3d 1051, 1056

(9th Cir. 2004), and may affirm on any grounds supported by the record, United

States v. State of Washington, 969 F.2d 752, 755 (9th Cir. 1992). We affirm.

      The district court properly granted summary judgment on Ontiveros's claim

that defendants violated his due process rights in two disciplinary hearings because

the undisputed evidence shows that as a result of Ontiveros's successful grievances

the prison officials overturned all disciplinary action arising from these hearings.

Summary judgment was proper as to Ontiveros's claim that the informational

chronos that remain in his file, and the dismissed rules violations report or reports

that apparently remain in his file, influenced past parole decisions or are liµely to

influence future parole board decisions; 'the possibility of denial of parole at some

later date does not amount to the denial of a liberty interest.' Burnsworth v.

Gunderson, 179 F.3d 771, 774 n.3 (9th Cir. 1999). Because Ontiveros cannot

show the denial of a protected right, he cannot obtain an order expunging the

documents. See id. at 773 ('[A] district court commits error if it orders

expungement of a disciplinary conviction after concluding that defendants had not

violated plaintiff's rights.'); see also Sandin v. Conner, 515 U.S. 472, 487 (1995)

('The chance that a finding of misconduct will alter the balance [at a prisoner's




                                           2                                     08-15556
parole hearing] is simply too attenuated to invoµe the procedural guarantees of the

Due Process Clause').

      The district court did not abuse its discretion in denying Ontiveros's request

for additional discovery under Rule 56(f) because Ontiveros did not show how

allowing him additional discovery would have precluded summary judgment. See

Margolis v. Ryan, 140 F.3d 850, 853-54 (9th Cir. 1998) (reviewing for an abuse of

discretion the denial of Rule 56(f) motion and upholding denial where 'appellants

failed to identify facts, either discovered or liµely to be discovered, that would

support their y 1983 claim').

      Ontiveros's remaining contentions are unpersuasive.

      Ontiveros's motion for appointment of counsel is denied.

      AFFIRMED.




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