NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 30 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
STANLEY RIMER, No. 15-16621
Plaintiff-Appellant, D.C. No. 3:15-cv-00105-RCJ-VPC
v.
MEMORANDUM*
BRIAN SANDOVAL; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Submitted June 26, 2017**
Before: PAEZ, BEA, and MURGUIA, Circuit Judges.
Nevada state prisoner Stanley Rimer appeals pro se from the district court’s
judgment dismissing his 42 U.S.C. §§ 1983 and 1985 action alleging claims related
to Rimer and Rimer’s wife’s parole proceedings. We have jurisdiction under 28
U.S.C. § 1291. We review de novo. Hamilton v. Brown, 630 F.3d 889, 892 (9th
*
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).
Cir. 2011) (dismissal for failure to state a claim under 28 U.S.C. § 1915A);
Whitaker v. Garcetti, 486 F.3d 572, 579 (9th Cir. 2007) (dismissal under Heck v.
Humphrey, 512 U.S. 477 (1994)). We affirm in part, vacate in part, and remand.
The district court properly dismissed Rimer’s claims challenging the denial
of Rimer’s parole as Heck-barred. See Wilkinson v. Dotson, 544 U.S. 74, 78
(2005) (“[A] prisoner in state custody cannot use a § 1983 action to challenge the
fact or duration of his confinement.” (internal quotation marks omitted));
Butterfield v. Bail, 120 F.3d 1023, 1024 (9th Cir. 1997) (“We have no difficulty in
concluding that a challenge to the procedures used in the denial of parole
necessarily implicates the validity of the denial of parole, and, therefore, the
prisoner’s continuing confinement.”). The district court did not abuse its discretion
in declining to grant Rimer leave to amend these claims. See Chappel v. Lab.
Corp., 232 F.3d 719, 725 (9th Cir. 2000) (“A district court acts within its discretion
to deny leave to amend when amendment would be futile . . . .”).
However, the district court erred in dismissing these claims with prejudice,
as they could properly be brought in a habeas petition. See Trimble v. City of
Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995) (when a complaint includes claims
that could properly be the subject of a habeas petition, such claims must be
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dismissed without prejudice). We vacate the judgment in part on Rimer’s claims
challenging the denial of his parole, and instruct the district court to enter judgment
on these claims without prejudice.
The district court also overlooked Rimer’s allegations related to defendants’
refusal to allow him contact with his wife. See Overton v. Bazzetta, 539 U.S. 126,
131 (2003) (explaining that although “freedom of association is among the rights
least compatible with incarceration[,]” it is not “altogether terminated by
incarceration” and is not “always irrelevant to claims made by prisoners”); Bd. of
Dirs. of Rotary Int’l v. Rotary Club of Duarte, 481 U.S. 537, 545 (1987) (“[T]he
First Amendment protects those relationships, including family relationships, that
presuppose deep attachments and commitments to the necessarily few other
individuals with whom one shares not only a special community of thoughts,
experiences, and beliefs but also distinctively personal aspects of one’s life.”). We
vacate the judgment in part for the district court to consider these allegations in the
first instance, and to determine whether leave to amend would be appropriate. See
Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (“[A] pro se litigant is
entitled to notice of the complaint’s deficiencies and an opportunity to amend prior
to dismissal of the action.”).
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We treat the district court’s order denying Rimer’s motion for
reconsideration as a ruling on both motions for reconsideration filed by Rimer.
The district court did not abuse its discretion in denying Rimer’s motions for
reconsideration because Rimer failed to set forth any basis for relief. See Sch. Dist.
No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993)
(setting forth standard of review and bases for reconsideration). Because we treat
the district court’s order as ruling on both motions for reconsideration, Rimer’s
challenge to the denial of his motion for an extension of time to file his first motion
for reconsideration is moot.
We reject as meritless Rimer’s contentions concerning judicial bias and
“abuse of process.”
AFFIRMED in part, VACATED in part, and REMANDED.
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