Lamarr Rowell v. James Dzurenda

NOT FOR PUBLICATION FILED
NOV 2 2020
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
LAMARR ROWELL, No. 19-17141
Plaintiff-Appellant, D.C. No. 3:19-cv-00337-MMD-
CBC
v.
JAMES E. DZURENDA, MEMORANDUM*
Defendant-Appellee.
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, District Judge, Presiding
Submitted October 26, 2020**
Before: McKEOWN, RAWLINSON, and FRIEDLAND, Circuit Judges.
Nevada state parolee Lamarr Rowell appeals pro se from the district court’s
judgment dismissing his 42 U.S.C. § 1983 action alleging due process and equal
protection claims. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo. Whitaker v. Garcetti, 486 F.3d 572, 579 (9th Cir. 2007) (dismissal under
*
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).
Heck v. Humphrey, 512 U.S. 477 (1994)); Barren v. Harrington, 152 F.3d 1193,
1194 (9th Cir. 1998) (order) (dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii) for
failure to state a claim). We affirm.
The district court properly dismissed Rowell’s action as Heck-barred
because success on his claims would necessarily imply the invalidity of his
conviction or sentence, and Rowell has not demonstrated that his conviction has
been invalidated. See Heck, 512 U.S. at 486-87 (if “a judgment in favor of the
plaintiff would necessarily imply the invalidity of his conviction or sentence . . .
the complaint must be dismissed unless the plaintiff can demonstrate that the
conviction or sentence has already been invalidated”); Thornton v. Brown, 757
F.3d 834, 842 (9th Cir. 2013) (“[P]risoner may challenge the ‘fact’ or ‘duration’ of
imprisonment only through a habeas proceeding.” (citations omitted)); see also
Jones v. Cunningham, 371 U.S. 236, 243 (1963) (parolee is in custody for purposes
of federal habeas review).
We affirm the dismissal, but remand to the district court with instructions to
amend the judgment to reflect that the dismissal is without prejudice. See Trimble
v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED; REMANDED with instructions to amend the judgment.
2 19-17141