Jason Lee Hathaway v. E. COTE, Corrections Sgt.; JAY, Corrections Officer; DUMBROWSKI, Corrections Officer

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JASON LEE HATHAWAY,
Plaintiff - Appellant,
v.
E. COTE, Corrections Sgt.; JAY,
Corrections Officer; DUMBROWSKI,
Corrections Officer,
Defendants - Appellees.
No. 13-35630
D.C. No. 2:12-cv-00614-CL
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, Senior District Judge, Presiding
Argued and Submitted November 5, 2015
Portland, Oregon
Before: KOZINSKI, BERZON, and WATFORD, Circuit Judges.
Jason Lee Hathaway appeals the district court’s dismissal of his amended
complaint with prejudice and without leave to amend. We affirm.
FILED
NOV 18 2015
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.
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1. Hathaway alleged that officials at Snake River Correctional Institution
violated his constitutional right to litigate without active interference. To state this
type of access-to-courts claim, an inmate must plausibly allege active interference
and actual injury. Silva v. Di Vittorio, 658 F.3d 1090, 1102-03 (9th Cir. 2011).
“Actual injury . . . is ‘actual prejudice with respect to contemplated or existing
litigation, such as the inability to meet a filing deadline or to present a claim.’”
Nev. Dep’t of Corr. v. Greene, 648 F.3d 1014, 1018 (9th Cir. 2011) (quoting Lewis
v. Casey, 518 U.S. 343, 348 (1996)). To satisfy the actual injury requirement, an
inmate must “demonstrate that a nonfrivolous legal claim had been frustrated or
was being impeded.” Lewis, 518 U.S. at 353 (footnote omitted).
Hathaway cannot satisfy the actual injury requirement. He alleged in his
amended complaint that he intended to argue at his resentencing hearing that Ballot
Measure 11 does not apply to convictions based on accomplice liability. But at the
hearing, Hathaway did so argue. He told the trial court “Measure 11 does not
apply to the conduct of an accomplice.” Appellant’s Opening Brief at 4, State v.
Hathaway, 252 Or. App. 580 (2012) (No. A146952), 2011 WL 8473399, at *4.
Without his legal papers, Hathaway was unable to cite specific law. Id. But
that inability could have made no difference to the outcome. The Oregon Court of
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Appeals had already rejected, in precedent binding upon the trial court, the
argument that Ballot Measure 11 does not apply to aiding and abetting convictions.
State v. Cobb, 224 Or. App. 594, 597-98 (2008), rev. denied, 346 Or. 364 (2009).
The Court of Appeals declined to revisit that precedent on at least three occasions.
State v. Burgess, 240 Or. App. 641, 643 n.1 (2011); State v. Davis, 234 Or. App.
785 (2010) (affirming without opinion); State v. Birdwell, 232 Or. App. 660 (2009)
(affirming without opinion). There was no case law to the contrary. Against this
legal backdrop, the most Hathaway could have accomplished at the trial court was
to preserve his Ballot Measure 11 argument for appeal. He did so, and
subsequently asked the Oregon Court of Appeals to “reconsider its holding in State
v. Cobb . . . that BM11 applies to accomplices.” Appellant’s Opening Brief at 5,
State v. Hathaway, 252 Or. App. 580 (2012) (No. A146952), 2011 WL 8473399, at
*5.
A § 1983 action must plausibly allege a link between the violation of a right
and an injury suffered. See Harper v. City of Los Angeles, 533 F.3d 1010, 1026
(9th Cir. 2008). Where the adverse decision in the case underlying an access-to-
courts claim would have necessarily occurred anyway, and no other adverse impact
(such as difficulty preserving the claim for appeal) can be shown, no such link can
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be established. As the deprivation of Hathaway’s legal papers did not cause his
claim to be “lost, rejected, or impeded,” Lewis, 518 U.S. at 353 n.4, Hathaway
suffered no actual injury. We therefore do not reach the question whether
Hathaway’s amended complaint plausibly alleged active interference.
2. The district court did not abuse its discretion by denying Hathaway leave
to amend. Because no case law existed that would have permitted the trial court to
rule in his favor, Hathaway’s failure plausibly to allege actual injury could not be
saved by amendment. See Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012).
AFFIRMED.
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