Stephen A. Cherry v. Dewayne Shedd;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEPHEN A. CHERRY,
Plaintiff - Appellant,
v.
DEWAYNE SHEDD; et al.,
Defendants - Appellees.
No. 11-35795
D.C. No. 3:10-cv-00271-LMB
MEMORANDUM*
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
FILED
OCT 25 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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.

-- 1 of 4 --

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.
11-35795 2

-- 2 of 4 --

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
11-35795 3

-- 3 of 4 --

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.
11-35795 4

-- 4 of 4 --