NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS AUG 21 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CHRISTOPHER EUGENE THOMAS, No. 17-16588

Plaintiff-Appellant, D.C. No. 2:16-cv-03559-JJT-MHB

v.

MEMORANDUM*

CHARLES L. RYAN, Warden, named as: Charles Ryan - Director, Arizona Department of Corrections; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Arizona John Joseph Tuchi, District Judge, Presiding

Submitted August 15, 2018**

Before: FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.

Arizona state prisoner Christopher Eugene Thomas appeals pro se from the

district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging access-to-

courts claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a

* 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). dismissal under 28 U.S.C. § 1915A. Resnick v. Hayes, 213 F.3d 443, 447 (9th

Cir. 2000). We may affirm on any basis supported by the record. Johnson v.

Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008). We affirm.

The district court properly dismissed Thomas’ access-to-courts claim

relating to defendants’ submission of allegedly false information and concealing of

material facts in CV 12-01719-PHX-FJM, because Thomas failed to allege facts

sufficient to show that defendants caused actual injury. See Lewis v. Casey, 518

U.S. 343, 348-53 (1996) (setting forth elements of an access-to-courts claim and

actual injury requirement).

Dismissal of Thomas’ access-to-courts claim relating to CV 16-01109-PHX-

JJT was proper because Thomas cannot show actual injury given that the operative

complaint in CV 16-01109-PHX-JJT was dismissed without prejudice and Thomas

was able to refile that claim in the instant action. See id.

The district court did not abuse its discretion by dismissing the complaint

without leave to amend because further amendment would be futile. See Cervantes

v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting

forth standard of review and explaining that a district court may dismiss without

leave to amend where amendment would be futile).

The district court did not abuse its discretion by denying Thomas’ motion

for appointment of counsel because Thomas failed to demonstrate exceptional

2 17-16588 circumstances. See Cano v. Taylor, 739 F.3d 1214, 1218 (9th Cir. 2014) (setting

forth standard of review and requirements for appointment of counsel).

We do not consider matters not specifically and distinctly raised and argued

in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.

3 17-16588