                                                                            FILED
                           NOT FOR PUBLICATION                              OCT 06 2016

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


GERALD DEAN DE CRUZ,                             No. 15-16683

              Plaintiff-Appellant,               D.C. No. 3:15-cv-01930-TEH

 v.
                                                 MEMORANDUM*
A. PANIZZA, Correctional Officer,

              Defendant-Appellee.


                   Appeal from the United States District Court
                       for the Northern District of California
                  Thelton E. Henderson, District Judge, Presiding

                          Submitted September 27, 2016**

Before:      TASHIMA, SILVERMAN, and M. SMITH, Circuit Judges.

      California state prisoner Gerald Dean de Cruz appeals pro se from the

district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging a First

Amendment access-to-courts claim and a Sixth Amendment claim relating to his

confidential legal mail. We have jurisdiction under 28 U.S.C. § 1291. We review

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
de novo a dismissal under 28 U.S.C. § 1915A for failure to state a claim.

Nordstrom v. Ryan, 762 F.3d 903, 908 (9th Cir. 2014). We affirm in part, vacate in

part, and remand.

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

Cruz failed to allege facts sufficient to show that he suffered an actual injury from

defendant’s alleged conduct. See Lewis v. Casey, 518 U.S. 343, 348-349, 351

(1996) (to state an access-to-courts claim, a prisoner must allege “actual injury”).

      However, the district court failed to consider whether the amended

complaint states a Sixth Amendment claim on the basis that defendant opened and

“presumably” read confidential correspondence between Cruz and his criminal

defense attorneys outside of Cruz’s presence. See Nordstrom, 762 F.3d at 911

(“[A]llegations that prison officials read [an inmate’s] legal mail . . . and that [the

inmate’s] right to private consultation with counsel has been chilled state a Sixth

Amendment claim”). Therefore, we vacate the judgment in part and remand for

further proceedings on this claim only. We express no opinion as to whether the

amended complaint states a Sixth Amendment claim.

      AFFIRMED in part, VACATED in part, and REMANDED.




                                            2                                     15-16683
