NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
APR 04 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
ALEZANDER DELGADO, No. 15-15190
Plaintiff-Appellant, D.C. No.
1:12-cv-00319-AWI-DLB
v.
L. GONZALEZ, Licensed Vocational MEMORANDUM*
Nurse, SATF State Prison, D-Yard,
Defendant-Appellee.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Submitted March 31, 2017**
San Francisco, California
Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit Judges.
California state prisoner Alezander Delgado appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging a First
Amendment retaliation claim in connection with an allegedly false rules violation
*
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).
report. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a
dismissal under Heck v. Humphrey, 512 U.S. 477 (1994). Whitaker v. Garcetti,
486 F.3d 572, 579 (9th Cir. 2007). We vacate and remand.
The district court relied on Edwards v. Balisok, 520 U.S. 641, 645 (1997),
for the proposition that Delgado’s § 1983 was Heck barred. But in
Nettles v. Grounds, 830 F.3d 922 (9th Cir. 2016) (en banc), cert. denied, (U.S. Jan.
9, 2017) (No. 16-6556), we recently said that the Heck bar as explained in Edwards
“applies only to administrative determinations that ‘necessarily’ have an effect on
‘the duration of time to be served.’” Id. at 929 n.4 (discussing Muhammad v.
Close, 540 U.S. 749 (2004) (per curiam)). Nettles held that “[i]f the invalidity of
the disciplinary proceedings, and therefore the restoration of good-time credits,
would not necessarily affect the length of time to be served, then the claim falls
outside the core of habeas and may be brought in § 1983.” Id. at 929.
On this record, we do not know whether Delgado’s rules violation and loss
of sixty days of good-time credit would necessarily affect the length of time he
must serve. It is possible for lost credits to be restored. Cal. Code Regs., tit. 15,
§ 3327-28. To the extent Delgado’s rules violation would be used in a parole
determination, the violation would only be one factor of many in a Board of Parole
Hearings determination. See Nettles, 830 F.3d at 934–35.
2
We do not consider issues or arguments 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).
Delgado’s request for alternate dispute resolution, filed on December 15,
2015, is denied as moot.
VACATED and REMANDED.
3