                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           AUG 23 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


CURTIS L. DOWNING,                               No.   14-16308

              Plaintiff-Appellant,               D.C. No.
                                                 2:12-cv-00332-JCM-CWH
 v.

JOHNNIE GRAVES; LEE GRIGGS;                      MEMORANDUM*
BRIAN E. WILLIAMS; BRYAN
WILSON; CHERYL BURSON; JERRY
HOWELL; JAMES COX; FRANK
DREESEN; BRIAN CONNETT;
RASHONDA SMITH; HOWARD
SKOLNIK; SHERYL FOSTER; A.
ROMERO; R. WOODBURY; JESUS
MERANZA; ROBERT HILL,

              Defendants-Appellees.


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

                           Submitted August 19, 2016**
                             San Francisco, California


         *
             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).
Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit Judges.

      Curtis Downing appeals the district court’s grant of summary judgment on

his 42 U.S.C. § 1983 claims and the district court’s dismissal of his access to

courts claims pursuant to 28 U.S.C. § 1915(e)(2). We have jurisdiction pursuant to

28 U.S.C. § 1291. We review de novo the district court’s grant of summary

judgment, King v. AC & R Advert., 65 F.3d 764, 767 (9th Cir. 1995), and the

district court’s dismissal for failure to state a claim under § 1915(e)(2), Barren v.

Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order). We affirm.

      I. First Amendment retaliation and related claims

       A viable First Amendment retaliation claim requires five elements: “(1) An

assertion that a state actor took some adverse action against an inmate (2) because

of (3) that prisoner’s protected conduct, and that such action (4) chilled the

inmate’s exercise of his First Amendment rights, and (5) the action did not

reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d

559, 567–68 (9th Cir. 2005). The district court concluded that no genuine issue of

material fact existed as to three of these elements: the causation of an adverse

action; the chilling of Downing’s speech; and the relationship between the actions

complained of and a legitimate correctional goal. The district court concluded that,

because Downing “continued to file multiple grievances . . . his First Amendment


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rights were not actually ‘chilled.’” The district court erred in focusing on whether

or not Downing’s speech was actually chilled, because “an objective standard

governs the chilling inquiry.” Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir.

2009).

      This error, however, was harmless, because Downing did not establish a

genuine issue of material fact as to causation or the lack of a legitimate penological

goal. Downing adduced no evidence showing a retaliatory motive on the part of

the corrections officers. Rather, the record shows that: (1) Downing was charged

with and disciplined for charging inmates legal fees on the basis of evidence that

he charged a fellow inmate $2,200 for legal services; (2) Downing was charged

with being in possession of a fellow inmate’s legal papers because he was in

possession of such papers; (3) Downing was charged with abusing the grievance

process because he improperly asserted two or more grievances in a single

grievance claim; (4) Downing was transferred to address his and the prison’s safety

concerns; (5) the cell searches were random, and Downing was charged for having

contraband because in fact he had contraband.

      Downing also failed to show a genuine issue of material fact as to whether

the challenged actions were unrelated to legitimate correctional goals. Prison

officials can have legitimate penological interests in ensuring compliance with the


                                           3
grievance process and in regulating the activities of prison law clerks, Shaw v.

Murphy, 532 U.S. 223, 230–31 (2001), transferring prisoners between cells and

prisons, Pratt v. Rowland, 65 F.3d 802, 808–09 (9th Cir. 1995), and in conducting

cell searches, see Hudson v. Palmer, 468 U.S. 517, 526–27 (1984). Because the

First Amendment retaliation claims fail, the related charges of failure to train and

conspiracy necessarily fail as well.

      II. Fourteenth Amendment procedural due process claim

      Downing received advanced written notice of the charges against him and

had three weeks to prepare his defense; the hearing officer created a written

statement providing the evidence relied upon and reasons for finding Downing in

violation of the regulations; Downing was asked if he wanted witnesses and

declined; and Downing was found guilty on the basis of evidence that he attempted

to charge a fellow inmate $2,200 for legal services. The proceedings thus satisfied

due process. Wolff v. McDonnell, 418 U.S. 539, 566–70 (1974) (setting out due

process requirements in prison disciplinary proceedings).

      III. Access to courts claim

       The touchstone of the right of access to courts is the “adequate opportunity

to file nonfrivolous legal claims challenging . . . convictions or conditions of

confinement.” Lewis v. Casey, 518 U.S. 343, 356 (1996). Thus, the official acts or


                                           4
omissions complained of must result in “actual prejudice with respect to

contemplated or existing litigation, such as the inability to meet a filing deadline or

to present a claim.” Id. at 348 (internal quotation marks omitted). Here, Downing

was able to successfully file this § 1983 action, and has failed to demonstrate that

the changes in the prison library policy violated his right of meaningful access to

the courts by causing him prejudice with respect to any current or anticipated

litigation.

       AFFIRMED.




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