Emiliano Lopez v. Edmund Brown, Jr.

FILED

NOT FOR PUBLICATION JAN 02 2014

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

EMILIANO LOPEZ, No. 12-17830

Plaintiff - Appellant, D.C. No. 1:12-cv-01065-LJO-GSA

v.

MEMORANDUM*

EDMUND G. BROWN, Jr., Governor of

California; et al.,

Defendants - Appellees.

Appeal from the United States District Court

for the Eastern District of California

Lawrence J. O’Neill, District Judge, Presiding

Submitted December 17, 2013**

Before: GOODWIN, WALLACE, and GRABER, Circuit Judges.

California state prisoner Emiliano Lopez appeals pro se from the district

court’s judgment dismissing his 42 U.S.C. § 1983 action alleging federal

constitutional violations in connection with his parole hearing. We have

*

This disposition is not appropriate for publication and is not precedent

except as provided by 9th Cir. R. 36-3.

**

The panel unanimously concludes this case is suitable for decision

without oral argument. See Fed. R. App. P. 34(a)(2).

jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s

dismissal under 28 U.S.C. §§ 1915A and 1915(e)(2)(B) (ii). Resnick v. Hayes, 213

F.3d 443, 447 (9th Cir. 2000); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.

1998) (order). We reverse and remand.

The district court entered a judgment of dismissal of Lopez’s action because

his claims sounded in habeas and could entitle him to earlier release. However,

success in this action would not necessarily demonstrate the invalidity of his

continued confinement and, therefore, Lopez’s claims are not barred under Heck v.

Humphrey, 512 U.S. 477, 483-87 (1994). See Wilkinson v. Dotson, 544 U.S. 74,

81-82 (2005) (prisoner may challenge procedures used in parole hearing under

§ 1983, provided he does not seek “immediate or speedier release”). Accordingly,

we reverse and remand for further proceedings.

REVERSED and REMANDED.

2 12-17830