Free Mandate of 9th Circuit - District Court of Arizona - Arizona

NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

FILED
MAY 29 2008
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FINN MACCOOL, Plaintiff - Appellant, v.

No. 06-15492 D.C. No. CV-03-00766-DGC MEMORANDUM *

DORA B. SCHRIRO; DONNA CLEMENT, Administrator, Offender Services Bureau, Central Office; RICK WARD, Deputy Administrator, Central Office, sued in their individuals and official capacities, Defendants - Appellees.

Appeal from the United States District Court for the District of Arizona David G. Campbell, District Judge, Presiding Argued and Submitted May 13, 2008 San Francisco, California

This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.

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Before: B. FLETCHER and RYMER, Circuit Judges, and DUFFY **, Senior District Judge. Finn MacCool appeals summary judgment entered in favor of Arizona Department of Corrections officials Dora Shriro, Donna Clement, and Rick Ward (ADC officials) in his action under 42 U.S.C. § 1983 for injunctive relief. We affirm. To the extent that MacCool's claims arise out of either his validation as a member of the Aryan Brotherhood on October 10, 1997, or his transfer to New Jersey on April 5, 1999, they are barred by the two-year statute of limitations applicable in Arizona. A.R.S. § 12-542(1). His theory of a continuing violation does not save these claims, as both were discrete acts that occurred outside the timely filing period. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002); Carpinteria Valley Farms, Ltd. v. County of Santa Barbara, 344 F.3d 822, 828 (9th Cir. 2003). In any event, the conditions of confinement about which MacCool complains are not atypical, nor does he have a protected interest in avoiding interstate transfer. See Sandin v. Conner, 515 U.S. 472, 483 n.5 (1995); Olim v.

The Honorable Kevin Thomas Duffy, Senior United States District Judge for the Southern District of New York, sitting by designation. 2

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Wakinekona, 461 U.S. 238, 248­49 (1983). That incarceration in New Jersey may, as a practical matter, prevent his family from visiting does not offend either due process or the Eighth Amendment. See Overton v. Bazzetta, 539 U.S. 126, 135­37 (2003). MacCool has visitation rights as well as alternative means of communication. Id. at 135. Finally, there is no basis in the record for concluding that ADC officials put MacCool in harm's way such that the principles of Farmer v. Brennan, 511 U.S. 825, 832 (1994), would be offended.1 As no exceptional circumstances are shown, the district court did not abuse its discretion in denying MacCool's request for counsel. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). Likewise, the court had discretion to decline oral argument. Jasinski v. Showboat Operating Co., 644 F.2d 1277, 1281 n.4 (9th Cir. 1981). AFFIRMED.

MacCool=s retaliation claim is barred because his ineligibility for a compassionate transfer back to Arizona is the result of his validation. See Ariz. Dep=t of Corr. Order 1004.04, para. 1.2.2 (June 21, 2002). 3

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