Julian Vargas v. D. Wabakken , 384 F. App'x 604 ( 2010 )

FILED
NOT FOR PUBLICATION JUN 17 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JULIAN VARGAS, No. 09-55609
Plaintiff - Appellant, D.C. No. 5:08-cv-00822-VBF-SS
v.
MEMORANDUM *
D. WABAKKEN, Correctional Lieutenant,
in his/her official capacity,
Defendant - Appellee.
Appeal from the United States District Court
for the Central District of California
Valerie Baker Fairbank, District Judge, Presiding
Submitted May 25, 2010 **
Before: CANBY, THOMAS, and W. FLETCHER, Circuit Judges.
Julian Vargas, a California state prisoner, appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 due process action arising from
a prison disciplinary charge for the possession of heroin. 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. Sacks v. Office of Foreign Assets
Control, 466 F.3d 764, 770 (9th Cir. 2006). We affirm.
The district court properly dismissed Vargas’s due process claim because he
failed to allege facts in his second amended complaint that implicate a
constitutionally-protected liberty or property interest. See Sandin v. Conner, 515
U.S. 472, 487 (1995) (a misconduct record that will not inevitably affect future
parole decisions “is simply too attenuated to invoke the procedural guarantees of
the Due Process Clause.”). To the extent Vargas contends the misconduct report
resulted in a loss of good time credits that will affect the duration of his sentence,
his claim is Heck-barred. See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994)
(barring section 1983 actions when judgment in favor of the plaintiff would
necessarily imply the invalidity of a sentence not otherwise invalidated).
Contrary to Vargas’s contention, the district court did not abuse its
discretion by denying further leave to amend. See Miller v. Yokohama Tire Corp.,
358 F.3d 616, 622 (9th Cir. 2004) (“Where the plaintiff has previously filed an
amended complaint . . . the district court’s discretion to deny leave to amend is
particularly broad.”) (citation and internal quotation marks omitted).
Vargas’s remaining contentions are unpersuasive.
AFFIRMED.
2 09-55609