Anthony Tarkington v. William Smith, Jr. , 584 F. App'x 736 ( 2014 )

FILED
NOT FOR PUBLICATION SEP 4 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANTHONY LYLE TARKINGTON, No. 13-55911
Plaintiff - Appellant, D.C. No. 2:12-cv-04849-JAK-E
v.
MEMORANDUM*
WILLIAM SMITH, Jr., Deputy District
Attorney, official capacity; MARY
SANCHEZ, Deputy Attorney General,
official capacity,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
John A. Kronstadt, District Judge, Presiding
Submitted August 26, 2014**
Before: THOMAS, OWENS, and FRIEDLAND, Circuit Judges.
California state prisoner Anthony Lyle Tarkington appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging denial of
*
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).
post-conviction access to biological evidence for DNA testing. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo. Lee v. City of Los
Angeles, 250 F.3d 668, 679 (9th Cir. 2001). We affirm.
The district court properly dismissed Tarkington’s due process claims
because Tarkington failed to allege facts sufficient to state a cognizable claim for
relief. See Skinner v. Switzer, 131 S. Ct. 1289, 1298-1300 (2011) (prisoner can
state a cognizable § 1983 claim by alleging a general constitutional challenge to
state post-conviction DNA testing statute, but not by challenging such statute’s
application in his case; Brady v. Maryland, 373 U.S. 83 (1963), is inapplicable to
due process claims for post-conviction DNA testing); Dist. Attorney’s Office for
the Third Judicial Dist. v. Osborne, 557 U.S. 52, 69-72 (2009) (due process
requires only that the state’s procedures for post-conviction relief do not offend
fundamental principles of justice or transgress any recognized principle of
fundamental fairness in operation); West v. Atkins, 487 U.S. 42, 48 (1988) (“To
state a claim under § 1983, a plaintiff must allege a violation of a right secured by
the Constitution or laws of the United States[.]”).
The district court did not abuse its discretion in denying Tarkington leave to
amend his complaint because amendment would have been futile. See Cervantes v.
Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting forth
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the standard of review and noting that the district court may dismiss without leave
to amend when amendment would be futile).
Tarkington’s contentions concerning discovery and the default judgment
against Smith are unpersuasive.
AFFIRMED.
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