Juan Valdez v. United States of America;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JUAN VALDEZ,
Plaintiff - Appellant,
v.
UNITED STATES OF AMERICA; et al.,
Defendants - Appellees.
No. 15-15469
D.C. No. 1:14-cv-00334-LJO-GSA
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, District Judge, Presiding
Submitted May 24, 2016**
Before: REINHARDT, W. FLETCHER, and OWENS, Circuit Judges.
Federal prisoner Juan Valdez appeals pro se from the district court’s
judgment dismissing his action under Bivens v. Six Unknown Named Agents of
Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging constitutional
violations in connection with the prison disciplinary process at Taft Federal
FILED
JUN 06 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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).

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Correctional Institution. We have jurisdiction under 28 U.S.C. § 1291. We review
de novo. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (28 U.S.C.
§ 1915A); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (order)
(dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii)). We may affirm on any basis
supported by the record. Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir.
2008). We affirm in part, vacate in part, and remand.
To the extent that Valdez seeks release from prison, or modification or
commutation of his sentence, dismissal was proper because his “exclusive remedy
is a writ of habeas corpus.” Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th
Cir. 1995). To the extent that Valdez seeks to challenge the results of his prison
disciplinary hearing, dismissal was proper because Valdez has not demonstrated
that the results of the disciplinary hearing, including the loss of good-time credits,
have been invalidated. See Edwards v. Balisok, 520 U.S. 641, 648 (1997) (a
“claim for declaratory relief and money damages, based on allegations . . . that
necessarily imply the invalidity of the punishment imposed,” including the
deprivation of good-time credits, “is not cognizable under § 1983”); Heck v.
Humphrey, 512 U.S. 477, 487 (1994) (if “a judgment in favor of the plaintiff
would necessarily imply the invalidity of his conviction or sentence . . . the
complaint must be dismissed unless the plaintiff can demonstrate that the
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conviction or sentence has already been invalidated”); see also Martin v. Sias, 88
F.3d 774, 775 (9th Cir. 1996) (order) (Heck applies to Bivens actions). However,
because the district court dismissed the action with prejudice, we vacate the
judgment and remand with instructions for the district court to dismiss these claims
without prejudice. See Trimble, 49 F.3d at 586 (where a plaintiff erroneously
brings habeas claims in a civil rights action, the district court should “state that the
prisoner’s claims must be addressed in a habeas petition, and dismiss the [civil
rights] claims without prejudice”); id. at 585 (dismissals under Heck are “required
to be without prejudice so that [the plaintiff] may reassert his claims if he ever
succeeds in invalidating his conviction”).
We reject Valdez’s contention that the district court should have construed
his complaint as being brought under the Federal Tort Claims Act, 28 U.S.C.
§ 2674.
We do not consider matters not specifically and distinctly raised and argued
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.
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