                                                                           FILED
                             NOT FOR PUBLICATION                            JUL 10 2012

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




                             FOR THE NINTH CIRCUIT



BRENT A. WINTERS; et al.,                        No. 10-17829

               Plaintiffs - Appellants,          D.C. No. 2:09-cv-00522-JAM-
                                                 KJN
  v.

DELORES JORDAN; et al.,                          MEMORANDUM *

               Defendants - Appellees.



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

                              Submitted June 26, 2012 **

Before:        SCHROEDER, HAWKINS, and GOULD, Circuit Judges.

       Brent A. Winters and members of his family appeal pro se from the district

court’s judgment dismissing various federal and state claims they brought against

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




          *
             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).
Kearney v. Foley & Lardner, LLP, 590 F.3d 638, 643 (9th Cir. 2009), and we

affirm.

      The district court properly determined that defendant Ford is immune from

liability under the Noerr-Pennington doctrine because the Winters’ factual

allegations in their amended complaint showed that the “sham” exception is

inapplicable. See Kottle v. Northwest Kidney Ctrs., 146 F.3d 1056, 1060 (9th Cir.

1998) (explaining the Noerr-Pennington doctrine and the circumstances where the

“sham” exception is applicable).

      The district court properly dismissed the assault claims against defendants

Arbuckle and Burrows Security Force because the amended complaint failed to

allege facts sufficient to state a claim. See Lowry v. Standard Oil Co., 146 P.2d 57,

60 (Cal. Ct. App. 1944) (under California law, an assault requires an unlawful

intent by one person to inflict immediate injury on another).

      The district court properly dismissed the sexual assault claim because the

allegations in the amended complaint do not demonstrate that Arbuckle had an

unlawful intent to inflict immediate injury on Cacey. See id.

      The district court properly dismissed the sexual harassment claim because,

even assuming that there is a qualifying relationship between Arbuckle and Cacey,

Arbuckle’s alleged conduct was neither “pervasive” nor “severe.” See Hughes v.


                                          2                                   10-17829
Pair, 209 P.3d 963, 974-75 (Cal. 2009) (explaining when conduct is “pervasive” or

“severe” within the meaning of Cal. Civ. Code § 51.9).

      The district court properly dismissed the conspiracy claim because the

amended complaint failed to allege facts sufficient to state a claim. See Crowe v.

County of San Diego, 608 F.3d 406, 440 (9th Cir. 2010) (“To establish liability for

a conspiracy in a § 1983 case, a plaintiff must ‘demonstrate the existence of an

agreement or meeting of the minds’ to violate constitutional rights.”).

      The district court properly dismissed the access to courts claim because the

amended complaint failed to allege facts demonstrating any actual injury. See

Barren v. Harrington, 152 F.3d 1193, 1195 (9th Cir. 1998) (“To state a valid claim

for denial of access to the courts, a plaintiff must allege an actual injury.”).

      We do not consider issues that were not raised in the opening brief. See

Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).

      The Winters’ remaining contentions are unpersuasive.

      AFFIRMED.




                                            3                                      10-17829
