Kenneth Jerome Packnett v. R. Wingo;

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NOT FOR PUBLICATION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 JEROME PACKNETT,
Plaintiff - Appellant,
v.
R. WINGO; et al.,
Defendants - Appellees.
No. 10-17529
D.C. No. 5:09-cv-00327-JF
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Jeremy D. Fogel, District Judge, Presiding
Submitted February 21, 2012**
Before: FERNANDEZ, McKEOWN, and BYBEE, Circuit Judges.
California state prisoner Kenneth Jerome Packnett appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging federal
and state law claims related to his incoming legal mail. We have jurisdiction under
FILED
MAR 06 2012
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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28 U.SC. § 1291. We review de novo, Knievel v. ESPN, 393 F.3d 1068, 1072 (9th
Cir. 2005), and may affirm on any ground supported by the record. Johnson v.
Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008). We affirm in
part, reverse in part, and remand.
Dismissal of Packnett’s claims for damages against state officials in their
official capacity was proper under the Eleventh Amendment. See Flint v.
Dennison, 488 F.3d 816, 824-25 (9th Cir. 2007).
The district court properly dismissed Packnett’s conspiracy claim against
defendants in their individual capacity because Packnett failed to allege that they
entered into an agreement to interfere with his legal mail. See Ivey v. Bd. of
Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982) (vague and
conclusory allegations of official participation in civil rights violations are not
sufficient to withstand dismissal).
The district court properly dismissed Packnett’s access-to-courts claim
against defendants in their individual capacity because Packnett conceded that he
did not suffer any injury. See Jones v. Blanas, 393 F.3d 918, 936 (9th Cir. 2004).
However, dismissal of Packnett’s denial-of-mail claims against defendants
in their individual capacity was improper because Packnett sufficiently alleged that
defendants opened various pieces of his legal mail outside his presence in

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violation of state regulations and the First Amendment. See Cal. Code Regs., tit.
15 § 3143; see also Sherman v. MacDougall, 656 F.2d 527, 528 (9th Cir. 1981)
(remanding for a hearing the inmate’s claim that defendants opened mail from his
attorneys outside his presence in violation of the First Amendment).
Dismissal of Packnett’s retaliation claim against defendants in their
individual capacity was also improper because Packnett alleged that his First
Amendment rights were chilled when defendants searched his cell, seized his
property, and otherwise retaliated against him for filing grievances. See Rhodes v.
Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (elements of retaliation claim).
Arguments raised for the first time on appeal, including whether Packnett
satisfied the claims presentation requirement, are deemed waived. See Smith v.
Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
We decline to address issues that may benefit from further development of
the record, including whether defendants are entitled to qualified immunity and
whether certain defendants were not personally involved in any alleged violation.
On remand, the district court should decide whether to exercise
supplemental jurisdiction over the state law claims in Packnett’s complaint.
The parties shall bear their own costs on appeal.
AFFIRMED in part, REVERSED in part, and REMANDED.

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