Jerry Frye v. State of California

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 31 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

JERRY GRANT FRYE, No. 16-16188

Plaintiff-Appellant, D.C. No. 4:14-cv-05470-YGR

v.
MEMORANDUM*
STATE OF CALIFORNIA; et al.,

Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Yvonne Gonzalez Rogers, District Judge, Presiding

Submitted May 24, 2017**

Before: THOMAS, Chief Judge, and SILVERMAN and RAWLINSON,
Circuit Judges.

California state prisoner Jerry Grant Frye appeals pro se from the district

court’s judgment in his 42 U.S.C. § 1983 action alleging constitutional claims

arising out of his criminal conviction. We have jurisdiction under 28 U.S.C.

*
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).
§ 1291. We review de novo a district court’s dismissal under 28 U.S.C. § 1915A.

Hamilton v. Brown, 630 F.3d 889, 892 (9th Cir. 2011). We affirm.

The district court properly dismissed Frye’s action challenging his

continuing confinement as barred under Heck v. Humphrey, 512 U.S. 477 (1994).

See id. at 481-86 (habeas corpus is the exclusive remedy for a state prisoner who

challenges the fact or duration of his confinement and seeks immediate or speedier

release or damages arising from his allegedly unconstitutional conviction or

confinement). Because the district court did not specify whether the dismissal of

Frye’s action was with or without prejudice, we treat the dismissal as being

without prejudice. See Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir.

1995) (dismissals under Heck are without prejudice).

The district court properly dismissed Frye’s original complaint because it

failed to comply with Fed. R. Civ. P. 8(a)(2), included claims that were Heck-

barred, and failed to identify how defendants’ conduct caused Frye’s alleged

constitutional injuries. See McHenry v. Renne, 84 F.3d 1172, 1179-80 (9th Cir.

1996) (complaint must forth simple, concise and direct averments as required

under Rule 8(a)(2)); Heck, 512 U.S. at 481-86; Taylor v. List, 880 F.2d 1040, 1045

(9th Cir. 1989) (liability under a § 1983 claim arises “only upon a showing of

personal participation by the defendant”).

The district court did not abuse its discretion in denying Frye’s motions for

2 16-16188
appointment of counsel. See Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009)

(setting forth standard of review and exceptional circumstances requirement for

appointment of counsel).

We do not consider documents not filed with the district court. See United

States v. Elias, 921 F.2d 870, 874 (9th Cir. 1990) (“Documents or facts not

presented to the district court are not part of the record on appeal.”).

AFFIRMED.

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