FILED

NOT FOR PUBLICATION JUN 23 2010

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

RICHARD L. PICKETT, No. 08-17268

Plaintiff - Appellant, D.C. No. 2:98-CV-00198-SRB-

MHB

v.

BENNIE ROLLINS, Deputy Warden in MEMORANDUM * his individual & official capacity; et al.,

Defendants - Appellees.

Appeal from the United States District Court for the District of Arizona Susan R. Bolton, District Judge, Presiding

Argued and Submitted June 16, 2010 San Francisco, California

Before: RYMER and FISHER, Circuit Judges, and RIPPLE, Senior Circuit Judge.**

Richard L. Pickett appeals the summary judgment in favor of the Arizona

Department of Corrections (ADC) officials against whom he brought this action

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Kenneth F. Ripple, Senior United States Circuit Judge for the Seventh Circuit, sitting by designation. under 42 U.S.C. § 1983. We have jurisdiction pursuant to 28 U.S.C. § 1291, and

affirm.

To prevail on his denial-of-access to court claim, Pickett must show the loss

of a “nonfrivolous” or “arguable” underlying claim. Phillips v. Hust, 477 F.3d

1070, 1076 (9th Cir. 2007), vacated on other grounds by Hust v. Phillips, 129 S.

Ct. 1036 (2009). He did not do so. No underlying claims were identified in his

complaint, see Christopher v. Harbury, 536 U.S. 403, 415 (2002), but even

assuming the claims on which he would have sought review in the Arizona

Supreme Court would track those presented to the court of appeals, he failed to

show that any had arguable merit.

Although the district court should have considered Pickett’s motion to

reconsider as a Rule 60(b) motion, see Am. Ironworks & Erectors, Inc. v. N. Am.

Constr. Corp., 248 F.3d 892, 898-99 (9th Cir. 2001), the error is harmless as

Pickett did not demonstrate that he was entitled to relief from judgment.

AFFIRMED.

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