                             NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                        FILED
                             FOR THE NINTH CIRCUIT                          NOV 29 2011

                                                                        MOLLY C. DWYER, CLERK
                                                                         U .S. C O U R T OF APPE ALS

VERNON WAYNE McNEAL,                             No. 10-15576

               Plaintiff - Appellant,            D.C. No. 2:07-cv-02240-LKK-
                                                 EFB
  v.

ERVIN, Correctional Guard, HDSP;                 MEMORANDUM *
EVERT, C/O,

               Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Eastern District of California
                   Lawrence K. Karlton, District Judge, Presiding

                           Submitted November 21, 2011 **

Before:        TASHIMA, BERZON, and TALLMAN, Circuit Judges.

       Vernon Wayne McNeal appeals pro se from the district court’s judgment

dismissing his 42 U.S.C. § 1983 action alleging that defendants violated his First

Amendment rights by denying him access to the courts and retaliating against him.


          *
             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).
We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Resnick v.

Hayes, 213 F.3d 443, 447 (9th Cir. 2000). We affirm.

       The district court properly dismissed McNeal’s access-to-courts claim

because McNeal did not allege facts showing that defendants’ loss of his legal

materials in 2004 resulted in any actual injury. See Lewis v. Casey, 518 U.S. 343,

349-53 (1996) (access-to-courts claim requires plaintiff to show that defendants’

conduct caused actual injury to a nonfrivolous legal claim). Contrary to McNeal’s

contention, the record indicates that the Supreme Court rejected his request for an

extension of time to file his petition for certiorari because McNeal failed to attach a

copy of the Ninth Circuit order, issued in 2006, denying review of his habeas

petition. See Sup. Ct. R. 13.5 (“An application to extend the time to file shall . . .

identify the judgment sought to be reviewed, include a copy of the opinion and any

order respecting rehearing, and set out specific reasons why an extension of time is

justified.”).

       The district court properly dismissed McNeal’s retaliation claim because

McNeal failed to allege facts demonstrating that he was engaged in any

constitutionally protected activity. See Rizzo v. Dawson, 778 F.2d 527, 531 (9th

Cir. 1985) (“To state a claim [plaintiff] must allege both that the type of activity he




                                            2                                    10-15576
engaged in was protected under the first amendment and that the state

impermissibly infringed on his right to engage in the protected activity.”).

      The district court did not abuse its discretion by dismissing without leave to

amend where amendment would be futile. See Gordon v. City of Oakland, 627

F.3d 1092, 1094 (9th Cir. 2010).

      McNeal’s remaining contentions are unpersuasive.

      AFFIRMED.




                                          3                                    10-15576
