Willie T. Smith v. DWIGHT NEVENS, Warden;

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NOT FOR PUBLICATION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
WILLIE T. SMITH,
Plaintiff - Appellant,
v.
DWIGHT NEVENS, Warden; et al.,
Defendants - Appellees.
No. 11-16493
D.C. No. 2:10-cv-01415-JCM-RJJ
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted October 9, 2012**
Before: RAWLINSON, MURGUIA, and WATFORD, Circuit Judges.
Nevada state prisoner Willie T. Smith appeals pro se from the district court’s
judgment dismissing his 42 U.S.C. § 1983 action for failure to state a claim and
failure to exhaust administrative remedies. We have jurisdiction under 28 U.S.C.
FILED
OCT 17 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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§ 1291. We review de novo. Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir.
2003) (dismissal for failure to exhaust); Barren v. Harrington, 152 F.3d 1193,
1194 (9th Cir. 1998) (order) (dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii)). We
affirm.
The district court properly dismissed Smith’s Fourth Amendment claim
alleging an unlawful search because prisoners have no constitutional right to
privacy in their cells. 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.”).
The district court properly dismissed Smith’s Fourteenth Amendment claim
alleging denial of access to education and employment because there is no
constitutional or state-created right to rehabilitation programs in prison. See Nev.
Rev. Stat. § 209.389(4) (offenders do not have a right to educational and
vocational programs); Rizzo v. Dawson, 778 F.2d 527, 531 (9th Cir. 1985)
(“[T]here is no constitutional right to rehabilitation.”).
The district court properly dismissed Smith’s Fourteenth Amendment due
process claim because Smith’s decision to remain silent does not render his
disciplinary proceeding unconstitutional. See Baxter v. Palmigiano, 425 U.S. 308,

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319-20 (1976) (Fifth Amendment does not forbid adverse inferences against a
prisoner who remains silent in disciplinary proceedings).
The district court properly dismissed Smith’s retaliation claims without
prejudice because Smith did not exhaust prison grievance procedures concerning
those claims and failed to show that exhaustion was effectively unavailable. See
Woodford v. Ngo, 548 U.S. 81, 93-95 (2006) (exhaustion is mandatory and must be
done in a timely manner consistent with prison policies); Nunez v. Duncan, 591
F.3d 1217, 1224 (9th Cir. 2010) (excusing prisoner’s failure to exhaust where
prisoner is prevented from doing so).
Smith’s contentions that the district court should have requested counsel for
him and granted his motion to receive free copies are unpersuasive.
AFFIRMED.

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