Starr v. California Department of Corrections , 616 F. App'x 257 ( 2015 )

FILED
NOT FOR PUBLICATION SEP 04 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBIN GILLEN STARR, No. 14-15957
Plaintiff - Appellant, D.C. No. 1:11-cv-02108-AWI-
GSA
v.
CALIFORNIA DEPARTMENT OF MEMORANDUM*
CORRECTIONS AND
REHABILITATION,
Defendant - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Submitted August 25, 2015**
Before: McKEOWN, CLIFTON, and HURWITZ, Circuit Judges.
California state prisoner Robin Gillen Starr appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging constitutional
claims related to his sentencing and incarceration. We have jurisdiction under 28
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
U.S.C. § 1291. We review de novo. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.
2000) (dismissal under 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
affirm in part, vacate in part, and remand.
To the extent that Starr 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) (per curiam); see also Ybarra v. Reno Thunderbird Mobile Home Vill.,
723 F.2d 675, 681-82 (9th Cir. 1984) (“If a prisoner seeks both release from
confinement and damages or injunctive relief in an action under § 1983, the court
may properly dismiss the former claim while retaining the latter.”). 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.
To the extent that Starr raised due process and equal protection claims in
connection with events that occurred in prison, the district court properly dismissed
these claims because Starr failed to allege facts sufficient to state cognizable claims
for relief. See Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (although pro
se pleadings are to be liberally construed, a plaintiff must still present factual
2 14-15957
allegations sufficient to state a plausible claim for relief); see also Wright v.
Riveland, 219 F.3d 905, 913 (9th Cir. 2000) (setting forth elements of a procedural
due process claim); Barren, 152 F.3d at 1194-95 (listing elements of an equal
protection claim).
We do not consider Starr’s claim regarding the denial of an opportunity to
question witnesses because Starr failed to raise such a claim in his operative first
amended complaint. See Turnacliff v. Westly, 546 F.3d 1113, 1120 (9th Cir. 2008).
Any motions and requests set forth in Starr’s opening brief are denied.
AFFIRMED in part, VACATED in part, and REMANDED.
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