                                                                            FILED
                              NOT FOR PUBLICATION                            JUN 21 2010

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




                              FOR THE NINTH CIRCUIT



DARYL K. HOWARD,                                  No. 09-15802

                Plaintiff - Appellant,            D.C. No. 1:06-cv-01829-ALA

  v.
                                                  MEMORANDUM *
NELSON, et al.,

                Defendants - Appellee.



                     Appeal from the United States District Court
                         for the Eastern District of California
                     Arthur L. Alarcón, Circuit Judge, Presiding **

                               Submitted May 25, 2010 ***

Before:         CANBY, THOMAS, and W. FLETCHER, Circuit Judges.




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The Honorable Arthur L. Alarcón, United States Circuit Judge for the
Ninth Circuit, sitting by designation.

          ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Daryl K. Howard, a California state prisoner, appeals pro se from the district

court’s judgment dismissing his 42 U.S.C. § 1983 action alleging denial of access

to courts. We have jurisdiction under 28 U.S.C. § 1291. We review de novo,

Nelson v. Heiss, 271 F.3d 891, 893 (9th Cir. 2001), and we affirm.

      The district court properly dismissed Howard’s denial of access to courts

claim because he failed to allege facts indicating that defendant impeded his right

to file a habeas petition. See Lewis v. Casey, 518 U.S. 343, 353-55 (1996) (access

to courts claim requires actual injury to plaintiff’s non-frivolous legal claim caused

by defendants’ conduct). Howard’s habeas petition was time-barred before he was

placed in administrative segregation and deprived of any legal materials.

      Dismissal without leave to amend was proper because it is clear that the

deficiencies of the complaint cannot be cured by amendment. See Lopez v. Smith,

203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc).

      We do not consider issues raised for the first time on appeal. See Foti v. City

of Menlo Park, 146 F.3d 629, 638 (9th Cir. 1998).

      AFFIRMED.




                                           2                                    09-15802
