Juan Valdez v. United States

651 F. App'x 626

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 6, 2016
• Docket: 15-15469
• Status: Unpublished

Opinion

MEMORANDUM **

Federal prisoner Juan Valdez appeals pro se from the district court’s judgment dismissing his action under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), alleging constitutional violations in connection with the prison disciplinary process at Taft Federal Correctional Institution. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.2000) (28 U.S.C. § 1915A); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.1998) (order) (dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii)). We may affirm on any basis supported by the record. Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir.2008). We affirm in part, vacate in part, and remand.

To the extent that Valdez seeks release from prison, or modification or commutation of his sentence, dismissal was proper because his “exclusive remedy is a writ of habeas corpus.” Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995). To the extent that Valdez seeks to challenge the results of his prison disciplinary hearing, dismissal was proper because Valdez has not demonstrated that the results of the disciplinary hearing, including the loss of good-time credits, have been invalidated. See Edwards v. Balisok, 520 U.S. 641, 648, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997) (a “claim for declaratory relief and money damages, based on allegations .., that necessarily imply the invalidity of the punishment imposed,” including the deprivation of good-time credits, “is not cognizable under § 1983”); Heck v. Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) (if “a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence ... the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated”); see also Martin v. Sias, 88 F.3d 774, 775 (9th Cir. 1996) (order) (Heck applies to Bivens actions). However, because the district court dismissed the action with prejudice, we vacate the judgment and remand with instructions for the district court to dismiss these claims without prejudice. See Trimble, 49 F.3d at 586 (where a plaintiff erroneously brings habeas claims in a civil rights action, the district court should “state that the prisoner’s claims must be addressed in a habeas petition, and dismiss the [civil rights] claims without prejudice”); id . at 585 (dismissals under Heck are “required to be without prejudice so that [the plaintiff] may reassert his claims if he ever succeeds in invalidating his conviction”).

We reject Valdez’s contention that the district court should have construed his complaint as being brought under the Federal Tort Claims Act, 28 U.S.C. § 2674.

We do not consider matters not specifically and distinctly raised and argued in the opening brief, or arguments and allegations raised for the first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir.2009).

AFFIRMED in part, VACATED in part, and REMANDED.

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