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vacating district court's dismissal of inmate's § 1983 complaint alleging a retaliation claim in connection with an allegedly false RVR because the record did not make clear whether the prisoner's loss of sixty days good-time credit would necessarily affect the length of time served
Summary of this case from Garcia v. KernanOpinion
No. 15-15190
04-04-2017
ALEZANDER DELGADO, Plaintiff-Appellant, v. L. GONZALEZ, Licensed Vocational Nurse, SATF State Prison, D-Yard, Defendant-Appellee.
NOT FOR PUBLICATION
D.C. No. 1:12-cv-00319-AWI-DLB MEMORANDUM Appeal from the United States District Court for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding Submitted March 31, 2017 San Francisco, California Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit Judges.
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). --------
California state prisoner Alezander Delgado appeals pro se from the district court's judgment dismissing his 42 U.S.C. § 1983 action alleging a First Amendment retaliation claim in connection with an allegedly false rules violation report. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal under Heck v. Humphrey, 512 U.S. 477 (1994). Whitaker v. Garcetti, 486 F.3d 572, 579 (9th Cir. 2007). We vacate and remand.
The district court relied on Edwards v. Balisok, 520 U.S. 641, 645 (1997), for the proposition that Delgado's § 1983 was Heck barred. But in Nettles v. Grounds, 830 F.3d 922 (9th Cir. 2016) (en banc), cert. denied, (U.S. Jan. 9, 2017) (No. 16-6556), we recently said that the Heck bar as explained in Edwards "applies only to administrative determinations that 'necessarily' have an effect on 'the duration of time to be served.'" Id. at 929 n.4 (discussing Muhammad v. Close, 540 U.S. 749 (2004) (per curiam)). Nettles held that "[i]f the invalidity of the disciplinary proceedings, and therefore the restoration of good-time credits, would not necessarily affect the length of time to be served, then the claim falls outside the core of habeas and may be brought in § 1983." Id. at 929.
On this record, we do not know whether Delgado's rules violation and loss of sixty days of good-time credit would necessarily affect the length of time he must serve. It is possible for lost credits to be restored. Cal. Code Regs., tit. 15, § 3327-28. To the extent Delgado's rules violation would be used in a parole determination, the violation would only be one factor of many in a Board of Parole Hearings determination. See Nettles, 830 F.3d at 934-35.
We do not consider issues or arguments 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).
Delgado's request for alternate dispute resolution, filed on December 15, 2015, is denied as moot.
VACATED and REMANDED.