                                                                           FILED
                             NOT FOR PUBLICATION                            JUL 05 2011

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




                             FOR THE NINTH CIRCUIT



NOEL RAY SMITH,                                  No. 10-55980

               Plaintiff - Appellant,            D.C. No. 2:10-cv-01725-SJO-AN

  v.
                                                 MEMORANDUM *
E. J. SMITH; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                        for the Central District of California
                     S. James Otero, District Judge, Presiding

                              Submitted June 15, 2011 **

Before:        CANBY, O’SCANNLAIN, and FISHER, Circuit Judges.

       California state prisoner Noel Ray Smith appeals pro se from the district

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

First and Fourteenth Amendment rights. We have jurisdiction under 28 U.S.C.

§ 1291. We may affirm on any ground supported by the record. Lambert v.

          *
             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).
Blodgett, 393 F.3d 943, 965 (9th Cir. 2004). We affirm in part, vacate in part, and

remand.

      Smith’s due process claim fails to state a claim for relief because he alleges

no facts that give rise to a liberty interest. See Sandin v. Conner, 515 U.S. 472,

487 (1995) (requiring “atypical and significant hardship on the inmate in relation

to the ordinary incidents of prison life” or a restraint that exceeds the prisoner’s

sentence in “an unexpected manner” to state a liberty interest; “The chance that a

finding of misconduct will alter the balance [at a prisoner’s parole hearing] is

simply too attenuated to invoke the procedural guarantees of the Due Process

Clause”). Accordingly, the district court properly dismissed this claim.

      The district court dismissed Smith’s action under Fed. R. of Civ. P. 41(b) for

failure to file first amended complaint alleging only Smith’s First Amendment

claim in a timely manner. However, the record reflects that Smith delivered to the

prison authorities a first amended complaint by the deadline set forth in the court’s

previous orders. See Douglas v. Noelle, 567 F.3d 1103, 1106-07 (9th Cir. 2009)

(discussing prison mailbox rule). Accordingly, we vacate in part and remand for

further proceedings on Smith’s First Amendment claim.

      Smith’s remaining contentions, including those raised in his objections to

the magistrate judge’s order, are unavailing.


                                           2                                       10-55980
      Smith’s motion to proceed in forma pauperis is denied as moot because he

has already been granted in forma pauperis status.

      Smith shall bear his own costs on appeal.

      AFFIRMED in part, VACATED in part, and REMANDED.




                                         3                                10-55980
