Donald Palmer v. State of Arizona

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 27, 2022
• Docket: 21-15020
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 27 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

DONALD RAY PALMER, No. 21-15020

Plaintiff-Appellant, D.C. No. 2:19-cv-05031-MTL- MHB v.

STATE OF ARIZONA; CHARLES L. MEMORANDUM* RYAN; DOUG DUCEY, Governor; DAVID SHINN, Director of ADOC,

Defendants-Appellees.

Appeal from the United States District Court for the District of Arizona Michael T. Liburdi, District Judge, Presiding

Submitted June 15, 2022**

Before: SILVERMAN, WATFORD, and FORREST, Circuit Judges.

Arizona state prisoner Donald Ray Palmer appeals pro se from the district

court’s order denying Palmer’s post-judgment motion for reconsideration in

Palmer’s 42 U.S.C. § 1983 action regarding his parole eligibility. We have

* 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). jurisdiction under 28 U.S.C. § 1291. We review for an abuse of discretion. Sch.

Dist. No. 1J, Multnomah County, Or. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir.

1993). We vacate and remand.

The district court dismissed Palmer’s initial complaint without leave to

amend as barred by Heck v. Humphrey, 512 U.S. 477 (1994), and later denied

Palmer’s motion for reconsideration for the same reason. In his initial complaint,

Palmer sought monetary damages and resentencing. However, in his motion for

reconsideration, Palmer argued he would be wrongfully denied parole eligibility

despite having been given a sentence of imprisonment that included the possibility

of parole after 25 years. See Chaparro v. Shinn, 459 P.3d 50, 51 (Ariz. 2020)

(discussing Arizona’s elimination of parole for offenses committed on or after

January 1, 1994 and holding that a sentence entered after the elimination of parole

that imposes “life without the possibility of parole for 25 years” entitles the

prisoner to parole after serving 25 years imprisonment); see also Wilkinson v.

Dotson, 544 U.S. 74, 76 (2005) (allowing claims challenging parole procedures to

proceed under § 1983 because the injunctive and declaratory relief that plaintiffs

sought would not necessarily result in speedier release). Because Heck does not

bar Palmer’s claims challenging his parole eligibility, it is not “absolutely clear”

that any deficiencies could not be cured by amendment. See Lucas v. Dep’t of

Corr., 66 F.3d 245, 248 (9th Cir. 1995) (“Unless it is absolutely clear that no

2 21-15020 amendment can cure the defect . . . a pro se litigant is entitled to notice of the

complaint’s deficiencies and an opportunity to amend prior to dismissal of the

action.”). Accordingly, we vacate the judgment and remand for the district court to

provide Palmer with an opportunity to amend.

Palmer’s motion to appoint counsel (Docket Entry No. 5) is denied.

VACATED and REMANDED.

3 21-15020