                                                                              FILED
                           NOT FOR PUBLICATION                                 JUL 28 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


THOMAS JOHN HEILMAN,                             No. 12-15214

              Plaintiff - Appellant,             D.C. No. 2:10-cv-01120 JAM-
                                                 DAD
  v.

L. SANCHEZ et al.,                               MEMORANDUM*

              Defendants - Appellants.


                    Appeal from the United States District Court
                        for the Eastern District of California
                     John A. Mendez, District Judge, Presiding

                             Submitted June 13, 2014**
                              San Francisco, California

Before: O’SCANNLAIN, SACK***, and BEA, Circuit Judges.

       Thomas John Heilman, a state prisoner, appeals from the district court's

order dismissing his action under 42 U.S.C. § 1983. The complaint alleges that

        *
             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).
        ***
            The Honorable Robert D. Sack, Senior Circuit Judge for the U.S.
Court of Appeals for the Second Circuit, sitting by designation.
prison officials violated his right of access to the courts and retaliated against him

for using the prison grievance process. We have jurisdiction under 28 U.S.C. §

1291. We review de novo the dismissal of a prisoner’s complaint under 28 U.S.C.

§ 1915A. Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007). Although

Heilman was afforded counsel on appeal, his original and amended complaints

were filed pro se and are therefore read with the solicitude normally afforded pro

se plaintiffs. See Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). We affirm in

part, reverse in part, and remand.

      The district court properly dismissed the claim that defendant Sanchez's

refusal to photocopy certain documents impaired an action that Heilman had filed

in state court. Because that action did not attack Heilman's sentence or challenge

the conditions of his confinement, he was not entitled to affirmative assistance in

the preparation of his case. See Lewis v. Casey, 518 U.S. 343, 355 (1996) (the

right to access the courts requires that prisons provide the tools "inmates need in

order to attack their sentences, directly or collaterally, and in order to challenge the

conditions of their confinement"); Silva v. Di Vittorio, 658 F.3d 1090, 1102 (9th

Cir. 2011) (right to affirmative assistance applies in a limited class of cases).

Moreover, the record from the court proceedings referenced in Heilman's filings

demonstrates that the defendants did not erect barriers resulting in injury to his


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state court action because that state action was filed more than a year after Heilman

secured through the grievance process his ability to make these photocopies. See

Engebretson v. Mahoney, 724 F.3d 1034, 1037 (9th Cir. 2013) (pro se complaint

may be dismissed "if it appears beyond doubt that the plaintiff can prove no set of

facts in support of his claim which would entitle him to relief" (internal quotation

marks omitted)); Silva, 658 F.3d at 1102–03 (stating that, in "other civil actions"

not related to the sentence or conditions of confinement, the Constitution "forbids

states from erecting barriers that impede the right of access of incarcerated

persons" (brackets and internal quotation marks omitted)).1

      The district court also properly dismissed Heilman’s claims against

defendants Jackson and Beebe because Heilman failed to allege plausible facts to

support a claim that either defendant was personally involved in any constitutional

violation, that any causal connection existed between either defendant's conduct

and any such violation, or that either defendant was motivated by retaliation. See

Chavez v. United States, 683 F.3d 1102, 1109 (9th Cir. 2012) (explaining that

supervisory defendants must have violated the Constitution "through their own

individual actions," including by adopting the mental state required by the

      1
        We accordingly also AFFIRM the dismissal of Heilman’s claim against
defendant Williams insofar as it alleged Williams denied Heilman access to the
courts by establishing or enforcing a restrictive copying policy.

                                          3
underlying constitutional tort (brackets and quotation marks omitted)); Starr v.

Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (“A defendant may be held liable as a

supervisor under § 1983 if there exists either (1) his or her personal involvement in

the constitutional deprivation, or (2) a sufficient causal connection between the

supervisor’s wrongful conduct and the constitutional violation.” (internal quotation

marks omitted)).

      The district court also properly dismissed two bases for the retaliation claim.

First, Sanchez's refusal to provide Heilman with a personal copy of his inmate trust

account statement did not constitute an adverse action giving rise to a retaliation

claim against Sanchez. See Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir.

2004) (stating that retaliation claims require an adverse action, motivated by a

"prisoner's protected conduct," which has the effect of chilling the "exercise of

First Amendment rights" and does not "reasonably advance a legitimate

correctional goal"). Second, the "Appeals Abuse Warning" issued against Heilman

served legitimate correctional goals and cannot support a retaliation claim. See




                                          4
Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (noting that "legitimate

penological goals" include "preserving institutional order and discipline").2

      The district court improperly dismissed the remainder of the plaintiff's

retaliation claim, however. The complaint alleges that defendant Sanchez

threatened Heilman with disciplinary action if he accessed the prison's grievance

mechanisms. See Watison v. Carter, 668 F.3d 1108, 1114 (9th Cir. 2012) (stating

that the "mere threat of harm can be an adverse action" giving rise to a retaliation

claim (emphasis in original)); Brodheim v. Cry, 584 F.3d 1262, 1270 (9th Cir.

2009) (stressing that a mere threat may be retaliatory "regardless of whether it is

carried out"). The complaint also alleges instances in which Sanchez purportedly

carried out these threats by removing Heilman from the library and by placing in

his file disciplinary notices premised on false allegations. See Corales v. Bennett,

567 F.3d 554, 568 (9th Cir. 2009) (defendant's prior expressed opposition to the

protected activity may suggest that retaliation motivated a later adverse action);

Watison, 668 F.3d at 1115 (disciplinary action premised on false allegations cannot

serve a legitimate correctional goal).




      2
        We accordingly also AFFIRM the district court’s dismissal of Heilman’s
claim against defendant Williams insofar as it alleged Williams supervised these
acts.

                                          5
      We therefore reverse the district court's dismissal under 28 U.S.C. § 1915A

of the retaliation claim that rests on these factual allegations, and we remand for

further proceedings. The surviving allegation of retaliation relates only to the

actions of defendant Sanchez, and does not involve acts by any of the other three

defendants named in the First Amended Complaint.

      With respect to those aspects of the complaint that were properly dismissed,

the district court did not abuse its discretion by refusing to grant leave to amend

because those aspects of the complaint could not be cured by amendment. See

Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (dismissal of a pro se

complaint is permissible "only if it is absolutely clear that the deficiencies of the

complaint could not be cured by amendment" (internal quotation marks omitted)).

      The defendants' request for judicial notice, filed on July 26, 2012, is granted.

See Intri-Plex Techs., Inc. v. Crest Grp., 499 F.3d 1048, 1052 (9th Cir. 2007)

(stating that it is permissible to take judicial notice of "matters of public record"

insofar as these are not "subject to reasonable dispute"); Doe v. Mann, 415 F.3d

1038, 1040 n.3 (9th Cir. 2005) (taking judicial notice of records relating to

proceedings in state court); United States v. Ritchie, 342 F.3d 903, 908 (9th Cir.

2003) (court may consider documents incorporated by reference in complaint, such

as those that form the basis of the plaintiff's claims).


                                            6
      The plaintiff's request for judicial notice, filed on August 13, 2012, is

denied.

      The parties shall bear their own costs on appeal.

      AFFIRMED IN PART, REVERSED IN PART, and REMANDED for

further proceedings consistent with this memorandum.




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