                                                                           FILED
                             NOT FOR PUBLICATION                            APR 09 2013

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




                             FOR THE NINTH CIRCUIT



ANDRE ALMOND DENNISON,                           No. 12-15609

               Plaintiff - Appellant,            D.C. No. 2:11-cv-02295-SRB-JFM

  v.
                                                 MEMORANDUM *
CHARLES L. RYAN, Director of Prison
Operations; ANTONIO BARRIOS,
Deputy Warden; STACI FAY, Assistant
Deputy Warden; UNKNOWN SMITH-
WHITSON, Captain; UNKNOWN
JOSEFOWICZ, Lieutenant; UNKNOWN
SUDDOTH, Sgt.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Arizona
                     Susan R. Bolton, District Judge, Presiding

                            Submitted January 15, 2013 **

Before:        HUG, FARRIS and LEAVY, Circuit Judges.




          *
             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).
      Plaintiff Andre Dennison appeals pro se from the district court’s dismissal of

his § 1983 action for failure to state a claim against several Arizona Department of

Corrections (“ADOC”) officials. We have jurisdiction under 28 U.S.C. § 1291,

and we affirm in part, reverse in part, and remand.1

      We review de novo a dismissal of a prisoner complaint under 28 U.S.C. §

1915A for failure to state a claim upon which relief can be granted. Hamilton v.

Brown, 630 F.3d 889, 892 (9th Cir. 2011). “Under § 1915A, when determining

whether a complaint states a claim, a court must accept as true all allegations of

material fact and must construe those facts in the light most favorable to the

plaintiff.” Id. at 892-93 (internal quotation marks omitted). This court “may

affirm on any ground supported by the record.” Serrano v. Francis, 345 F.3d

1071, 1076-77 (9th Cir. 2003). The denial of leave to amend is reviewed for an

abuse of discretion. Ramirez v. Galaza, 334 F.3d 850, 854 (9th Cir. 2003).

      The district court properly determined that Dennison failed to state due

process claims in Counts I and II. The Due Process Clause provides procedural

protections to inmates who can establish that a liberty interest is at stake.

Wilkinson v. Austin, 545 U.S. 209, 221 (2005). The Supreme Court has held that



      1
         Because the parties are familiar with the facts underlying this appeal, we
do not recount the facts here.

                                            2
“the touchstone of the inquiry into the existence of a protected, state-created liberty

interest in avoiding restrictive conditions of confinement is not the language of

regulations regarding those conditions but the nature of those conditions

themselves ‘in relation to the ordinary incidents of prison life.’” Id. at 223

(quoting Sandin v. Conner, 515 U.S. 472, 484 (1995)). Therefore, in order to

constitute a violation of a state-created liberty interest, the hardship imposed on the

prisoner must be atypical and significant in relation to the ordinary incidents of

prison life. Chappell v. Mandeville, 706 F.3d 1052, 1064 (9th Cir. 2013).

      None of the penalties imposed on Dennison implicate liberty interests. See

May v. Baldwin, 109 F.3d 557, 565 (9th Cir. 1997) (holding that placement in

disciplinary segregation does not implicate a liberty interest because it “falls within

the terms of confinement ordinarily contemplated by a sentence”); Resnick v.

Hayes, 213 F.3d 443, 445 (9th Cir. 2000) (holding that the inmate had no

cognizable due process claim because he had no liberty interest in being free from

disciplinary segregation); Walker v. Gomez, 370 F.3d 969, 973 (9th Cir. 2004)

(prisoners do not have a liberty interest in prison employment); Serra v. Lappin,

600 F.3d 1191, 1196 (9th Cir. 2010) (prisoners do not have a liberty interest in

compensation for their labor); Myron v. Terhune, 476 F.3d 716, 718 (9th Cir.

2007) (a raised classification score does not implicate a state-created liberty


                                           3
interest). Finally, the fact that dismissed charges remain on Dennison’s record is

not sufficient to implicate due process because the chance that it will affect the

duration of his sentence “is simply too attenuated.” See Sandin, 515 U.S. at 487.

      Moreover, the punishments or combination of punishments imposed on

Dennison do not constitute an atypical or significant hardship. First, the penalties

and restrictions were not materially different from conditions imposed on inmates

in discretionary segregation. See Resnick, 213 F.3d at 445; Myron, 476 F.3d at

718. Second, the duration or degree of the restrictions do not constitute a major

disruption in Dennsion’s environment. See Sandin, 515 U.S. at 486; Resnick, 213

F.3d at 445. Finally, Dennison has not alleged facts showing that the length of his

sentence was affected. See Sandin, 515 U.S. at 487; Resnick, 213 F.3d at 445.

Therefore, the conditions of the punishments did not implicate a liberty interest

because they were “within the range of confinement to be normally expected.” See

Sandin, 515 U.S. at 487; Resnick, 213 F.3d at 445.

      Dennison argues that the district court erred by failing to address substantive

due process issues in Counts I and II; however, this claim is without merit. Just as

Dennison’s procedural due process claim fails because he did not show that he was

deprived of a liberty interest, his substantive due process claim likewise fails. See

Nunez v. City of Los Angeles, 147 F.3d 867, 871 (9th Cir. 1998) (“To establish a


                                           4
substantive due process claim, a plaintiff must, as a threshold matter, show a

government deprivation of life, liberty, or property.”).

      The district court properly determined that Dennison failed to state a due

process claim in Count III. “[A]n unauthorized intentional deprivation of property

by a state employee does not constitute a violation of the procedural requirements

of the Due Process Clause of the Fourteenth Amendment if a meaningful

postdeprivation remedy for the loss is available.” Hudson v. Palmer, 468 U.S. 517,

533 (1984). Arizona provides meaningful and adequate postdeprivation remedies

through both the prison grievance system and the state tort process. See Wright v.

Riveland, 219 F.3d 905, 918 (9th Cir. 2000) (both state tort claims and prison

grievance procedures provide adequate postdeprivation remedies); Ariz. Rev. Stat.

§ 12-821.01; Arizona Dept. of Corrections Order 909.09. To the extent that

Dennison argues that the postdeprivation remedy is inadequate because he was

unable to access the grievance procedure, his argument is unavailing. See Hudson,

468 U.S. at 535 (that a prisoner “might not be able to recover under these remedies

the full amount which he might receive in a § 1983 action is not, as we have said,

determinative of the adequacy of the state remedies”); Ariz. Rev. Stat § 12-821.01.

      It was not error for the district court to dismiss Count IV for failure to state a

First Amendment claim because Dennison failed to allege that his mail was


                                           5
confiscated without a legitimate penological purpose. See Barrett v. Belleque, 544

F.3d 1060, 1062 (9th Cir. 2008) (censorship of prisoner mail is justified if it

furthers a legitimate governmental purpose). However, because it is possible that

Dennison could cure the defect in his complaint by pleading additional facts, he

should be granted leave to amend this claim. See Watison v. Carter, 668 F.3d

1108, 1117 (9th Cir. 2012); Ramirez, 334 F.3d at 861.

      Dennison also argues that the district court improperly converted his First

Amendment claim into a due process claim; that contention is meritless.

Moreover, to the extent that Dennison’s confiscated-mail claim was construed as a

due process claim, it was properly dismissed because he had an adequate

postdeprivation remedy. See Hudson, 468 U.S. at 533.

      The district court’s imposition of a strike on Dennison does not apply at this

point because Dennison has the opportunity to amend his First Amendment claim.

See Silva v. Di Vittorio, 658 F.3d 1090, 1100 (9th Cir. 2011). However, if

Dennison’s amended complaint fails to state a claim under the First Amendment,

then the district court’s imposition of a strike will be appropriate. See O’Neal v.

Price, 531 F.3d 1146, 1152 (9th Cir. 2008).

      Dennison raises several arguments for the first time on appeal; we decline to

address them. See Janes v. Wal-Mart Stores Inc., 279 F.3d 883, 887 (9th Cir.


                                           6
2002) (“Issues raised for the first time on appeal usually are not considered.”). We

reject any remaining contentions as meritless.

      We therefore reverse the district court’s dismissal with prejudice of

Dennison’s First Amendment claim for the confiscation of his mail, and remand

with instructions to grant leave to amend that claim. The remainder of the district

court’s rulings are affirmed.

      Each party is to bear their own costs.

      AFFIRMED in part; REVERSED in part; and REMANDED with

instructions.




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