Staley v. Rea

46 F. App'x 497

• Court: Court of Appeals for the Ninth Circuit
• Decided: September 17, 2002
• Docket: No. 01-35982; D.C. No. CV-99-1032-KI
• Status: Published

Opinion

MEMORANDUM

**

Terry J. Staley, an Oregon state prisoner, appeals pro se the district court’s dismissal of his 42 U.S.C. § 1988 action alleging that the defendants violated the Americans with Disabilities Act (ADA), Rehabilitation Act and various constitutional rights by denying him parole based on his disability. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Thompson v. Davis, 295 F.3d 890, 895 (9th Cir.2002), and we affirm.

Staley alleged that defendants discriminated against him by denying him parole based on a finding that he suffers from a severe emotional disturbance so as to constitute a danger to the health or safety of the community. The district court properly granted summary judgment to the defendants on Staley’s discrimination claim because the ADA does not categorically bar a state parole board from considering an inmate’s disability in making an individualized assessment of the future dangerousness of the inmate. See id. at 898 n. 4.

The district court properly dismissed without prejudice Staley’s due process, equal protection and ex post facto claims because success on those claims would necessarily affect the length of Staley’s confinement. See Edwards v. Balisok, 520 U.S. 641, 648, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997) (concluding section 1983 claim not cognizable where it necessarily implies the invalidity of prison disciplinary proceeding); see also Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir.1995) (per curiam) (dismissing claims without prejudice).

We will not consider issues raised by Staley for the first time on appeal. See Nelson v. City of Irvine, 143 F.3d 1196, 1205 (9th Cir.1998).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.