NOT FOR PUBLICATION FILED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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