FILED
NOT FOR PUBLICATION NOV 21 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SANTIAGO SOTO, No. 15-16519
Plaintiff-Appellant, D.C. No. 2:15-cv-00780-EFB
v.
MEMORANDUM*
JACK GARNER, Presiding
Commissioner, CDC; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Edmund F. Brennan, Magistrate Judge, Presiding**
Submitted November 16, 2016 ***
Before: LEAVY, BERZON, and MURGUIA, Circuit Judges.
California state prisoner Santiago Soto appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging constitutional
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
Soto consented to proceed before a magistrate judge. See 28 U.S.C.
§ 636(c).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
violations in connection with the denial of parole. We have jurisdiction under 28
U.S.C. § 1291. We review de novo a dismissal under 28 U.S.C. § 1915A. Resnick
v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). We may affirm on any basis
supported by the record. Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d
1114, 1121 (9th Cir. 2013). We affirm.
To the extent that Soto challenged the denial of parole, such a claim must be
brought in a habeas petition because success on the claim would necessarily mean
immediate release or a shorter duration of incarceration. See Wilkinson v. Dotson,
544 U.S. 74, 79 (2005) (explaining that § 1983 action is proper only if success
would not “necessarily have meant immediate release or a shorter period of
incarceration”).
The district court properly dismissed Soto’s procedural due process claim
because the allegations in Soto’s complaint show that he received adequate
process, as he “was allowed an opportunity to be heard and was provided a
statement of the reasons why parole was denied.” Swarthout v. Cooke, 562 U.S.
216, 220 (2011).
The district court properly dismissed Soto’s claim for equitable relief under
the Ex Post Facto Clause because it duplicates the allegations and prayer for relief
in Gilman v. Brown, No. Civ. 2:05-cv-00830-MCE-CKD (E.D. Cal.), alleging that
2 15-16519
Proposition 9 violates the Ex Post Facto Clause. See Pride v. Correa, 719 F.3d
1130, 1133 (9th Cir. 2013) (“[A] district court may dismiss those portions of the
complaint which duplicate the class action’s allegations and prayer for relief.”
(citation, internal quotation marks, and alterations omitted)).
The district court did not abuse its discretion by dismissing the complaint
without granting leave to amend because amendment would be futile. See
Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011)
(setting forth standard of review).
We do not consider arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
3 15-16519