Paul Whitmore v. Jeffery Dort ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 21 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PAUL GORDON WHITMORE, No. 16-55264
Plaintiff-Appellant, D.C. No. 3:14-cv-02949-DMS-
BGS
v.
JEFFERY DORT, Asst. District Attorney, MEMORANDUM*
SD County; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding
Submitted November 16, 2016**
Before: LEAVY, BERZON, and MURGUIA, Circuit Judges.
California state prisoner Paul Gordon Whitmore appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging due
process violations arising from his conviction and sentence. We have jurisdiction
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 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. 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)). We
may affirm on any ground supported by the record, Cigna Prop. & Cas. Ins. Co. v.
Polaris Pictures Corp., 159 F.3d 412, 418 (9th Cir. 1998), and we affirm.
To the extent that success on Whitmore’s due process claims would
necessarily imply the invalidity of his conviction or sentence, the district court
properly concluded that Whitmore’s action is Heck-barred because Whitmore
failed to allege facts demonstrating that his conviction or sentence has been
invalidated. See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).
To the extent that success on Whitmore’s due process claims would not
necessarily imply the invalidity of his conviction or sentence, dismissal of
Whitmore’s due process claims was proper because Whitmore failed to allege facts
sufficient to show any cognizable injury. See Long v. County of Los Angeles, 442
F.3d 1178, 1185 (9th Cir. 2006) (“To state a claim under § 1983, a plaintiff must
allege . . . that a right secured by the Constitution or laws of the United States was
violated[.]”); Wright v. Riveland, 219 F.3d 905, 913 (9th Cir. 2000) (setting forth
elements of a procedural due process claim).
AFFIRMED.
2 16-55264