NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 29 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANDREW ANDERSEN, No. 17-16610
Plaintiff-Appellant, D.C. No. 1:16-cv-00236-DAD-SAB
v.
MEMORANDUM*
MARISELA MONTES, Commissioner of
California Board of Parole Hearings; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Dale A. Drozd, District Judge, Presiding
Submitted December 18, 2017**
Before: WALLACE, SILVERMAN, and BYBEE, Circuit Judges.
California state prisoner Andrew Andersen appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action stemming from his parole
proceedings. We have jurisdiction under 28 U.S.C. § 1291. We review de novo
the district court’s dismissal under 28 U.S.C. § 1915A. Resnick v. Hayes, 213 F.3d
*
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).
443, 447 (9th Cir. 2000). We affirm in part, vacate in part, and remand.
The district court properly dismissed Andersen’s as applied challenge to the
parole procedures because Andersen failed to allege facts sufficient to show that
the parole proceeding denied him due process. See Swarthout v. Cooke, 562 U.S.
216, 219-20 (2011) (due process claim in parole context requires only that prisoner
be provided with an opportunity to be heard and a statement of the reasons why
parole was denied).
However, Andersen also alleged that he was seeking to bring a facial
challenge to the parole procedures. Dismissal of Andersen’s complaint without
leave to amend was premature because it is not absolutely clear that the
deficiencies could not be cured by amendment. See Wilkinson v. Dotson, 544 U.S.
74, 76, 82 (2005) (outlining limited circumstances under which prisoners may
challenge state parole procedures under § 1983); Lucas v. Dep’t of Corr., 66 F.3d
245, 248 (9th Cir. 1995) (“Unless it is absolutely clear that no amendment can cure
the defect . . . a pro se litigant is entitled to notice of the complaint’s deficiencies
and an opportunity to amend prior to dismissal of the action.”); see also Cervantes
v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting
forth standard of review). We vacate the judgment in part and remand for further
proceedings.
We do not consider matters not specifically and distinctly raised and argued
2 17-16610
in the opening brief, or 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 in part, VACATED in part, and REMANDED.
3 17-16610