                                                                           FILED
                              NOT FOR PUBLICATION                          OCT 25 2013

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



                               FOR THE NINTH CIRCUIT


STEPHEN A. CHERRY,                                No. 11-35795

                 Plaintiff - Appellant,           D.C. No. 3:10-cv-00271-LMB

  v.
                                                  MEMORANDUM*
DEWAYNE SHEDD; et al.,

                 Defendants - Appellees.


                      Appeal from the United States District Court
                                for the District of Idaho
                      Larry M. Boyle, Magistrate Judge, Presiding**

                              Submitted October 15, 2013***

Before:         FISHER, GOULD, and BYBEE, Circuit Judges.

       Idaho state prisoner Stephen A. Cherry appeals pro se from the district

court’s judgment dismissing his 42 U.S.C. § 1983 action. We have jurisdiction

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
                Cherry consented to proceed before a magistrate judge. See 28 U.S.C.
§ 636(c).

          ***The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2). Cherry’s request for a
telephone hearing is denied.
under 28 U.S.C. § 1291. We review de novo the district court’s dismissal for

failure to state a claim under 28 U.S.C. § 1915A. Silva v. Di Vittorio, 658 F.3d

1090, 1101 (9th Cir. 2011). We affirm in part, vacate in part, and remand.

      The district court properly dismissed Cherry’s Fourth, Eighth, and

Fourteenth Amendment claims against all defendants because the allegations in his

complaint failed to state a claim for relief under those constitutional provisions.

See Hudson v. Palmer, 468 U.S. 517, 526 (1984) (“[T]he Fourth Amendment

proscription against unreasonable searches does not apply within the confines of

the prison cell.”); Farmer v. Brennan, 511 U.S. 825, 833-34, 837 (1994) (setting

forth elements of Eighth Amendment claim); N. Pacifica LLC v. City of Pacifica,

526 F.3d 478, 486 (9th Cir. 2008) (setting forth elements of equal protection

claim); see also Graham v. Connor, 490 U.S. 386, 395 (1989) (where a particular

Amendment “provides an explicit textual source of constitutional protection”

against a particular sort of government behavior, “that Amendment, not the more

generalized notion of ‘substantive due process,’ must be the guide for analyzing

these claims”).

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

defendants Southwick, Reinke, and Lorello because Cherry failed to allege facts

demonstrating their personal participation in the alleged violations. See Starr v.


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Baca, 652 F.3d 1202, 1206-07 (9th Cir. 2011) (a plaintiff must plead that each

defendant violated the Constitution through his own individual actions).

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

defendant Shedd because it was barred by the applicable statute of limitations, and

it was evident from Cherry’s complaint and supplemental complaint that neither

delayed discovery nor a continuing violations theory applied to extend the

limitations period. See Idaho Code Ann. § 5-219(4); Knox v. Davis, 260 F.3d

1009, 1012-13 (9th Cir. 2001) (state personal injury statute of limitations applies to

§ 1983 actions; a claim accrues when the plaintiff knows or has reason to know of

the injury which is the basis of the action, and the continuing impact from past

violations does not cause a claim to accrue anew).

      The district court erred, however, in dismissing at this early stage in the

proceedings Cherry’s access-to-courts claim against defendant Kirkman as barred

by the statute of limitations as it was not evident from the face of Cherry’s

complaint and supplemental complaint that the delayed discovery rule would not

apply to extend the limitations period. See Cervantes v. City of San Diego, 5 F.3d

1273, 1276-77 (9th Cir. 1993) (noting dismissal on statute of limitations grounds is

disfavored where the complaint, liberally construed in light of our “notice

pleading” system, adequately alleges facts showing the potential applicability of


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tolling).

       The district court also prematurely dismissed Cherry’s access-to-courts

claims against defendants Higgins and Blades in light of this court’s intervening

decision in Silva because the allegations in the complaint, liberally construed, were

“sufficient to meet the low threshold for proceeding past the screening stage.”

Wilhelm v. Rotman, 680 F.3d 1113, 1123 (9th Cir. 2012); see Silva, 658 F.3d at

1102-04 (explaining that prisoners have the right to litigate, without active

interference, claims that have a reasonable basis in law or fact, and concluding that

allegations that defendants hindered an inmate’s ability to litigate his pending civil

action resulting in dismissal of the action were sufficient to state a claim).

       We therefore vacate the dismissal of Cherry’s access-to-courts claims

against defendants Blades, Higgins, and Kirkman, and remand for further

proceedings on these claims consistent with this disposition. We affirm the district

court’s dismissal of Cherry’s Fourth, Eighth, and Fourteenth Amendment claims

and the dismissal of the access-to-courts claim against defendants Southwick,

Reinke, Lorello, and Shedd.

       AFFIRMED in part; VACATED in part; and REMANDED.




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