Gregory McClellan v. David Mountain , 399 F. App'x 218 ( 2010 )

FILED
NOT FOR PUBLICATION OCT 06 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GREGORY McCLELLAN, No. 09-15596
Plaintiff - Appellant, D.C. No. 1:09-cv-00256-LJO-GSA
v.
MEMORANDUM *
DAVID MOUNTAIN; P. HEARD,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Submitted September 13, 2010 **
Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges.
Gregory McClellan appeals pro se from the district court’s judgment
dismissing his 42 U.S.C. § 1983 action alleging claims concerning parole
conditions and revocation of parole. We have jurisdiction under 28 U.S.C. § 1291.
We review de novo. Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007).
*
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).
We may affirm on any ground supported by the record. Johnson v. Riverside
Healthcare Sys. LP, 534 F.3d 1116, 1121 (9th Cir. 2008). We affirm in part,
vacate in part, and remand.
We affirm the dismissal of McClellan’s claims challenging parole
conditions. See Hatton v. Bonner, 356 F.3d 955, 961-67 (9th Cir. 2004) (rejecting
ex post facto challenge); Neal v. Shimoda, 131 F.3d 818, 826-27 (9th Cir. 1997)
(same); see also United States v. Bee, 162 F.3d 1232, 1234-35 (9th Cir. 1998)
(rejecting constitutional challenge to condition of supervised release).
However, we vacate the dismissal under Heck v. Humphrey, 512 U.S. 477(1994), of McClellan’s claim challenging parole revocation. The district court did
not expressly consider the Heck exception set forth in Nonnette v. Small, 316 F.3d
872 (9th Cir. 2002). Accordingly, we vacate and remand for further proceedings
on this claim.
McClellan shall bear his own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.
2 09-15596