Alezander Delgado v. L. Gonzalez

Ninth Circuit

Alezander Delgado v. L. Gonzalez

686 F. App'x 434

CourtCourt of Appeals for the Ninth Circuit

DecidedApril 4, 2017

Docket15-15190

StatusUnpublished

Cited by2 cases

This text of 686 F. App'x 434 (Alezander Delgado v. L. Gonzalez) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Alezander Delgado v. L. Gonzalez, 686 F. App'x 434 (9th Cir. 2017).

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Opinion

MEMORANDUM **

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, 114 S.Ct. 2364, 129 L.Ed.2d 383 (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, 117 S.Ct. 1584, 137 L.Ed.2d 906 (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, 124 S.Ct. 1303, 158 L.Ed.2d 32 (2004) (per curiam)). Nettles held that “[i]f the invalidity of the disciplinary proceedings, and therefore the *435 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, § 3327r28. 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.

**

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rulé 36-3.

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MEMORANDUM **

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, 114 S.Ct. 2364, 129 L.Ed.2d 383 (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, 117 S.Ct. 1584, 137 L.Ed.2d 906 (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, 124 S.Ct. 1303, 158 L.Ed.2d 32 (2004) (per curiam)). Nettles held that “[i]f the invalidity of the disciplinary proceedings, and therefore the *435 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, § 3327r28. 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.

**

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rulé 36-3.

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