United States v. 2020-07-22 | 19-15679 | DAVID FLORENCE V. S. FRAUENHEIM | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DAVID FLORENCE,

Plaintiff-Appellant,

v.

S. FRAUENHEIM, Correctional Officer,
Pleasant Valley State Prison; R. RESER,
Correctional Officer, Pleasant Valley State
Prison,

Defendants-Appellees.

No. 19-15679

D.C. No. 1:15-cv-01383-AWI-JDP

MEMORANDUM
*

Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding

Submitted July 14, 2020
**

Before: CANBY, FRIEDLAND, and R. NELSON, Circuit Judges.

California state prisoner David Florence appeals pro se from the district
court’s summary judgment in his 42 U.S.C. § 1983 action alleging First
Amendment claims arising out of the confiscation of personal property. We have

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.

**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED

JUL 22 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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jurisdiction under 28 U.S.C. § 1291. We review de novo. Blankenhorn v. City of
Orange, 485 F.3d 463, 470 (9th Cir. 2007). We affirm.
The district court properly granted summary judgment on Florence’s First
Amendment claims on the basis of qualified immunity because it would not have
been clear to every reasonable prison official that confiscating CDs with explicit
lyrics pursuant to a policy that prohibited prisoners from possessing media that
promoted gang activity, violence, and criminal activity was unlawful under the
circumstances. See Pearson v. Callahan, 555 U.S. 223, 232 (2009) (“Qualified
immunity is applicable unless the official’s conduct violated a clearly established
constitutional right.”); Foster v. Runnels, 554 F.3d 807, 815 (9th Cir. 2009) (“A
right is ‘clearly established’ when its contours are sufficiently defined, such that ‘a
reasonable official would understand that what he is doing violates that right.’”
(quoting Wilson v. Layne, 526 U.S. 603, 615 (1999))).
The district court properly dismissed Florence’s due process, access-to-
courts, and retaliation claims in the original and amended complaints for failure to
state a claim. See Byrd v. Maricopa Cty. Bd. of Supervisors, 845 F.3d 919, 922
(9th Cir. 2017) (standard of review); see also Hudson v. Palmer, 468 U.S. 517, 533
(1984) (elements of a due process claim for property deprivation); Nev. Dep’t of
Corr. v. Greene, 648 F.3d 1014, 1018 (9th Cir. 2011) (elements of an access-to-
courts claim); Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009) (elements of a

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retaliation claim in the prison context).
The district court did not abuse its discretion in denying Florence’s motion
for leave to amend to add previously dismissed claims as well as new claims
because amendment would have been futile. See Bowles v. Reade, 198 F.3d 752,
757-58 (9th Cir. 1999) (setting forth standard of review and factors to consider in
denying a motion to amend).
Florence’s motion to take judicial notice is denied as unnecessary.
AFFIRMED.