Kenneth Bowling v. OREGON DEPARTMENT OF CORRECTIONS, Max Williams, Director;

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KENNETH BOWLING,
Plaintiff - Appellant,
v.
OREGON DEPARTMENT OF
CORRECTIONS, Max Williams, Director;
et al.,
Defendants - Appellees.
No. 10-36015
D.C. No. 3:10-cv-00605-ST
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Submitted September 10, 2012**
Before: WARDLAW, CLIFTON, and N.R. SMITH, Circuit Judges.
Kenneth Bowling, an Oregon state prisoner, appeals pro se from the district
court judgment dismissing his 42 U.S.C. § 1983 action alleging, among other
FILED
SEP 25 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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things, that defendants violated his right to access the courts by taking or failing to
send out his legal mail. We have jurisdiction under 28 U.S.C. § 1291. We review
de novo a dismissal under 28 U.S.C. § 1915(e)(2). Barren v. Harrington, 152 F.3d
1193, 1194 (9th Cir. 1998) (order). We affirm in part, vacate in part, and remand.
The district court properly dismissed Bowling’s access to court claims based
on defendants’ alleged failure to provide assistance because Bowling either sought
to pursue legal matters unrelated to his sentence or condition of confinement, or
failed to allege actual injury. See Silva v. Di Vittorio, 658 F.3d 1090, 1102 (9th
Cir. 2011) (discussing the requirements for an access to court claim based on a
failure to provide assistance).
However, the district court did not have the benefit of our recent decision in
Silva, in which we explained that prisoners also have access to court rights to
litigate without active interference claims that have a reasonable basis in law or
fact. See id. at 1102-03 (explaining the difference between “interference” and
“assistance” access to court claims). Liberally construing Bowling’s amended
complaint, it appears that he alleged access to court claims based on defendants’
alleged interference with his ability to litigate a work-related injury lawsuit. In
addition, it appears that Bowling alleged due process, retaliation, and equal
protection claims, which the district court did not address. Accordingly, we vacate

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the dismissal with prejudice and remand so that the district court may consider
these claims in the first instance, notify Bowling of any defects, and provide an
opportunity to amend, if appropriate.
Bowling shall bear his own costs on appeal.
AFFIRMED in part; VACATED in part; and REMANDED.

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