FILED
NOT FOR PUBLICATION MAR 02 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID RAYMOND ANDREWS, No. 14-16014
Plaintiff - Appellant, D.C. No. 1:12-cv-01042-GSA
v.
MEMORANDUM*
S. TORRES, Correctional Case Records
Manager; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Gary S. Austin, Magistrate Judge, Presiding**
Submitted February 17, 2015***
Before: O’SCANNLAIN, LEAVY, and FERNANDEZ, Circuit Judges.
David Raymond Andrews, a California state prisoner, appeals pro se from
the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging due
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
Andrews consented to proceed before a magistrate judge. See Fed. R.
App. P. 34(a)(2).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
process and equal protection violations in connection with the processing of prison
grievances. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.
Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order) (dismissal
under 28 U.S.C. § 1915(e)(2)(B)(ii)); Ramirez v. Galaza, 334 F.3d 850, 853 (9th
Cir. 2003) (dismissal under 28 U.S.C. § 1915A). We affirm in part, reverse in part,
and remand.
The district court erred in determining that Andrews’s § 1983 claims were
Heck-barred because Andrews sought only the recalculation of his minimum
eligible parole date (“MEPD”), an outcome that would not necessarily result in
earlier release or imply the invalidity of Andrews’s continued confinement. See
Ramirez, 334 F.3d at 856 (“[T]he applicability of the favorable termination rule
turns solely on whether a successful § 1983 action would necessarily render invalid
a conviction, sentence, or administrative sanction that affected the length of the
prisoner’s confinement.”); In re Dannenberg, 104 P.3d 783, 791, 804-05 (Cal.
2005) (MEPD does not determine release date because California prisoner has no
right to a release date prior to being deemed suitable for parole), overruled in part
on other grounds by In re Lawrence, 190 P.3d 535, 539 (Cal. 2008).
The district court properly dismissed the equal protection and due process
claims on the separate grounds that Andrews presented only conclusory allegations
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of intentional discrimination, see Barren, 152 F.3d at 1194 (equal protection claim
requires showing that “defendants acted with an intent or purpose to discriminate
against the plaintiff based upon membership in a protected class”), and failed to
allege facts implicating a protected liberty interest, see Ramirez, 334 F.3d at 860-
61 (discussing requirements for due process claims in prison context).
However, dismissal of Andrews’s claims without leave to amend was
improper at this early stage of the proceedings. See Ramirez, 334 F.3d at 861
(leave to amend should be granted unless the pleading could not possibly be cured
by amendment); Flowers v. First Hawaiian Bank, 295 F.3d 966, 976 (9th Cir.
2002) (this court is “very cautious in approving a district court’s decision to deny
pro se litigants leave to amend”).
Because of our disposition, we do not address the district court’s decision
declining to exercise jurisdiction over the pendent state law claims, but we vacate
that decision to permit the district court to address the issue on remand.
Accordingly, we reverse and remand with instructions to allow Andrews an
opportunity to file an amended complaint.
AFFIRMED in part, REVERSED in part, and REMANDED.
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