Joseph Tribble v. Jim Gibbons , 415 F. App'x 828 ( 2011 )

FILED
NOT FOR PUBLICATION FEB 24 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOSEPH TRIBBLE, No. 09-17810
Plaintiff - Appellant, D.C. No. 3:08-cv-00216-ECR-
VPC
v.
JIM GIBBONS, Governor; et al., MEMORANDUM *
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Edward C. Reed, Jr., District Judge, Presiding
Submitted February 15, 2011 **
Before: CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.
Joseph Tribble, a Nevada state prisoner, appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging that the
conditions of his parole hearing violated his Eighth and Fourteenth Amendment
rights and the Ex Post Facto Clause of the U.S. Constitution. We have jurisdiction
*
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).
under 28 U.S.C. § 1291. We review de novo. Nelson v. Heiss, 271 F.3d 891, 893
(9th Cir. 2001) (dismissal for failure to state a claim); Yanez v. United States, 63
F.3d 870, 872 (9th Cir. 1995) (judgment on the pleadings). We affirm.
The district court properly dismissed Tribble’s Eighth Amendment claim
because the procedures used at his parole hearing do not offend “contemporary
standards of decency.” Helling v. McKinney, 509 U.S. 25, 36 (1993).
The district court properly dismissed Tribble’s Fourteenth Amendment due
process claim because Nevada law does not create a liberty interest in parole. See
Moor v. Palmer, 603 F.3d 658, 662 (9th Cir. 2010); see also Wilkinson v. Dotson,
544 U.S. 74, 81-82 (2005) (prisoner may challenge procedures used in parole
hearing under section 1983, provided he does not seek “immediate or speedier
release”).
The district court properly dismissed Tribble’s Ex Post Facto claim because
he did not allege retroactive application of a law that significantly risked increasing
his punishment. See id. at 663 (in the parole context, the ex post facto inquiry
focuses on whether the amended rule creates a significant risk of prolonging a
prisoner’s incarceration).
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The district court did not abuse its discretion by denying Tribble’s request
for appointment of counsel because he failed to show exceptional circumstances.
See Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1980) (per curiam).
Tribble’s remaining contentions are unpersuasive.
AFFIRMED.
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