                                                                           FILED
                             NOT FOR PUBLICATION                            NOV 01 2011

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




                             FOR THE NINTH CIRCUIT



DANIEL LAWRENCE SMITH,                           No. 10-17141

               Plaintiff - Appellant,            D.C. No. 2:07-cv-00837-WBS-
                                                 CMK
  v.

FIGEROE; et al.,                                 MEMORANDUM *

               Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Eastern District of California
                    William B. Shubb, District Judge, Presiding

                            Submitted October 25, 2011 **

Before:        TROTT, GOULD, and RAWLINSON, Circuit Judges.

       Daniel Lawrence Smith, a California state prisoner, appeals pro se from the

district court’s summary judgment in his 42 U.S.C. § 1983 action alleging that

defendants violated his right of access to the courts. We have jurisdiction under

28 U.S.C. § 1291. We review de novo, Jones v. Blanas, 393 F.3d 918, 926

          *
             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).
(9th Cir. 2004), and we affirm.

      The district court properly granted summary judgment because Smith failed

to raise a genuine dispute of material fact as to whether he suffered an actual injury

as a result of the loss of the Keybo declaration. See Lewis v. Casey, 518 U.S. 343,

350-53 (1996) (access-to-courts claim requires plaintiff to show that defendants’

conduct caused actual injury to a non-frivolous legal claim). Specifically, Smith

did not raise a genuine dispute of material fact as to whether the declaration

contained “newly discovered evidence” that would allow him to pursue a state

habeas action. In re Hardy, 163 P.3d 853, 872 (Cal. 2007) (setting forth the

requirements for pursuing a habeas action claiming actual innocence based on

newly discovered evidence).

      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).

      Smith’s remaining contentions are unpersuasive.

      AFFIRMED.




                                           2                                     10-17141
