Don McCune v. Legrand , 657 F. App'x 724 ( 2016 )

FILED
NOT FOR PUBLICATION SEP 19 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DON MCCUNE, No. 15-16341
Plaintiff - Appellant, D.C. No. 3:15-cv-00142-MMD-
VPC
v.
LEGRAND, Warden; et al., MEMORANDUM*
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, District Judge, Presiding
Submitted September 13, 2016**
Before: HAWKINS, N.R. SMITH, and HURWITZ, Circuit Judges.
Don McCune, a Nevada state prisoner, appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action arising out of state parole
proceedings. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a
dismissal under 28 U.S.C. §§ 1915A and 1915(e)(2)(B)(ii). Hamilton v. Brown,
*
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).
630 F.3d 889, 892 (9th Cir. 2011); Barren v. Harrington, 152 F.3d 1193, 1194 (9th
Cir. 1998) (order). We may affirm on any ground supported by the record.
Hamilton, 630 F.3d at 893. We affirm.
To the extent McCune alleged that the prior denial of parole was improper,
the district court properly dismissed McCune’s action because success in his action
would necessarily demonstrate the invalidity of his confinement or its duration,
and McCune failed to show that his conviction or sentence has been invalidated.
See Wilkinson v. Dotson, 544 U.S. 74, 80-82 (2005) (a prisoner’s § 1983 action is
barred if success “would necessarily demonstrate the invalidity of confinement or
its duration[,]” unless “the conviction or sentence has already been invalidated”
(citation and internal quotation marks omitted)).
To the extent McCune challenged state parole procedures and sought an
injunction regarding a future hearing, dismissal was proper because McCune failed
to allege facts sufficient to state a plausible claim that his due process rights were
violated. See Moor v. Palmer, 603 F.3d 658, 661 (9th Cir. 2010) (“Nevada’s
statutory parole scheme . . . expressly disclaims any intent to create a liberty
interest.”); Neal v. Shimoda, 131 F.3d 818, 827 (9th Cir. 1997) (“The requirements
of procedural due process apply only to the deprivation of interests encompassed
by the Fourteenth Amendment’s protection of liberty and property.” (citation and
2 15-16341
internal quotation marks omitted)); see also Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (to avoid dismissal, “a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face” (citation and
internal quotation marks omitted)).
AFFIRMED.
3 15-16341