Howard Ellis v. James Benedetti , 399 F. App'x 227 ( 2010 )

FILED
NOT FOR PUBLICATION OCT 07 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
HOWARD ELLIS, No. 09-15849
Plaintiff - Appellant, D.C. No. 3:08-CV-00657-ECR-
RAM
v.
JAMES BENEDETTI; et al., MEMORANDUM *
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Edward C. Reed, Jr., District Judge, Presiding
Submitted September 13, 2010 **
Before: SILVERMAN, CALLAHAN, and N. R. SMITH, Circuit Judges.
Howard Ellis, a Nevada state prisoner, appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action with prejudice for failure
to state a claim pursuant to 28 U.S.C. § 1915(e)(2). We have jurisdiction under 28
*
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).
09-15849
U.S.C. § 1291. We review de novo an order of dismissal, Barren v. Harrington,
152 F.3d 1193, 1194 (9th Cir. 1998) (order), and review for an abuse of discretion
the denial of leave to amend, Halet v. Wend Inv. Co., 672 F.2d 1305, 1310 (9th Cir.
1982). We may affirm on any ground supported by the record. Buckley v.
Terhune, 441 F.3d 688, 694 (9th Cir. 2006) (en banc). We affirm in part, reverse
in part, and remand.
The district court properly dismissed the deprivation of property claim in
Count 1 of the complaint because the State of Nevada provides an adequate
post-deprivation remedy. See Nev. Rev. Stat. §§ 41.031, 41.0322; Hudson v.
Palmer, 468 U.S. 517, 533 (1984) (deprivation of property does not constitute a
due process violation when a post-deprivation state remedy is available). We
therefore affirm the district court’s dismissal of Ellis’s claims concerning lost or
missing property.
The district court properly dismissed any due process claim Ellis sought to
allege in Counts 1 and 2 of the complaint because he has no due process right to
have his grievances handled in a particular manner. See Mann v. Adams, 855 F.2d
639, 640 (9th Cir. 1988) (order). We therefore affirm the district court’s order
dismissing Ellis’s challenges to the processing of his grievances.
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We remand the remaining allegations of Counts 1 and 2 and instruct the
district court to consider whether or not leave to amend is warranted. See Lopez v.
Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000) (en banc) (leave to amend must be
granted unless complaint’s deficiencies could not possibly be cured).
In Count 3, Ellis alleged that defendants deprived him of due process by
denying without explanation his request for a live witness at a disciplinary hearing.
We reverse the district court’s dismissal of Count 3 because it states a due process
violation. See Serrano v. Francis, 345 F.3d 1071, 1080 (9th Cir. 2003).
In its dismissal order, the district court did not mention Counts 4 through 8
of the complaint. On remand, the court shall address these counts. See Weilburg v.
Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (pro se inmates must be given notice
of complaint’s deficiencies and leave to amend if these are curable).
AFFIRMED in part, REVERSED in part, and REMANDED.
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