Patterson v. Kane

Full title: BARRY NORTHCROSS PATTERSON, Plaintiff - Appellant, v. KANE, sued in his…

Court: United States Court of Appeals, Ninth Circuit

Date published: Dec 13, 2006

No. 06-15781 (9th Cir. Dec. 13, 2006)

Opinion

BARRY NORTHCROSS PATTERSON, Plaintiff - Appellant, v. KANE, sued in his individual & official capacity, Defendant - Appellee. No. 06-15781 United States Court of Appeals, Ninth Circuit December 13, 2006

NOT FOR PUBLICATION

Submitted December 4, 2006^**

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

Appeal from the United States District Court for the District of Arizona Paul G. Rosenblatt, District Judge, Presiding, D.C. No. CV-04-00603-PGR

Before: GOODWIN, LEAVY, and FISHER, Circuit Judges.

MEMORANDUM ^*

* This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.

Barry Northcross Patterson appeals pro se from the district court§s judgment dismissing his 42 U.S.C. § 1983 action alleging that defendants retaliated against him for complaining about segregation in the dining hall. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a dismissal for failure to exhaust administrative remedies, Wyatt v. Terhune, 315 F.3d 1108, 1117 (9th Cir. 2003), and a dismissal under 28 U.S.C. § 1915A for failure to state a claim, Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). We affirm.

The district court properly dismissed Patterson§s claims against defendant Kane without prejudice because Patterson failed to exhaust his administrative remedies. See Wyatt, 315 F.3d at 1120. Contrary to Patterson§s contention, the record shows that defendant Curran did not destroy Patterson§s grievance paperwork, or prevent Patterson from using the grievance system in any way.

The district court properly dismissed Patterson§s claims against defendant Schriro because supervisory officials cannot be held liable pursuant to 42 U.S.C. § 1983 under a respondeat superior theory. See Graves v. City of Coeur D§Alene, 339 F.3d 828, 848 (9th Cir. 2003) (supervising officers can be held liable under section 1983 only if they play an affirmative part in the alleged deprivation of constitutional rights).

The district court properly dismissed for failure to state a claim Patterson§s due process claims regarding the grievance procedure because the denial of a grievance does not in and of itself rise to the level of a constitutional violation. See Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (order) (§There is no legitimate claim of entitlement to a grievance procedure§). Patterson§s remaining contentions lack merit.

AFFIRMED.