Frank A. Wallmuller v. CASEY SALISBURY, Sheriff, Mason County, Washington

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NOT FOR PUBLICATION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
FRANK A. WALLMULLER,
Plaintiff - Appellant,
v.
CASEY SALISBURY, Sheriff, Mason
County, Washington and DOES I-V,
individually and in their official capacities,
Defendants - Appellees.
No. 10-35645
D.C. No. 3:09-cv-05534-BHS
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Submitted December 19, 2011**
Before: GOODWIN, WALLACE, and McKEOWN, Circuit Judges.
Frank A. Wallmuller, a Washington state prisoner, appeals pro se from the
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging that
defendants violated his right of access to the courts. We have jurisdiction under
FILED
JAN 04 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

-- 1 of 3 --

10-35645 2
28 U.S.C. § 1291. We review de novo, Jones v. Blanas, 393 F.3d 918, 926
(9th Cir. 2004), and we affirm.
The district court properly granted summary judgment because Wallmuller
failed to raise a genuine dispute of material fact as to whether he suffered an actual
injury as a result of the alleged lack of access to adequate legal resources while he
was detained at the Mason County Jail. See Lewis v. Casey, 518 U.S. 343, 348-53
(1996) (access-to-courts claim requires plaintiff to show that defendants’ conduct
caused actual injury to a non-frivolous legal claim).
The district court did not abuse its discretion in denying, without prejudice
to renewal, Wallmuller’s motion to name Tom Haugen as one of the Doe
defendants because, at the time the motion was filed, there was a motion for
summary judgment pending; substitution of Haugen would have unnecessarily
delayed the court’s consideration of the summary judgment motion; and
substitution of Haugen would not have had any impact on the outcome of summary
judgment. See Matsumoto v. Republic Ins. Co., 792 F.2d 869, 872 (9th Cir. 1986)
(per curiam) (no abuse of discretion in denying motion to add party made after
discovery had commenced and motion for summary judgment had been filed).
Contrary to Wallmuller’s contention, the district court judge did not plainly
err by not recusing himself. See 28 U.S.C. § 455(a)-(b) (listing grounds for

-- 2 of 3 --

10-35645 3
recusal); United States v. Bosch, 951 F.2d 1546, 1548 (9th Cir. 1991) (discussing
plain error review standard).
Wallmuller’s remaining contentions, including that removal of the action to
federal court was untimely, are unpersuasive.
AFFIRMED.

-- 3 of 3 --