Theresa Annette Torricellas v. KIMBERLY HUGHES, Warden (A) former, in official capacity;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THERESA ANNETTE TORRICELLAS,
Plaintiff-Appellant,
v.
KIMBERLY HUGHES, Warden (A) former,
in official capacity; et al.,
Defendants-Appellees.
No. 17-56955
D.C. No. 5:17-cv-00928-AG-AJW
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Submitted August 15, 2018**
Before: FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.
California state prisoner Theresa Annette Torricellas appeals pro se from the
district court’s judgment dismissing her 42 U.S.C. § 1983 action alleging
constitutional violations arising out of her disciplinary hearing and parole hearing.
We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal
* 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).
FILED
AUG 23 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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under 28 U.S.C. § 1915A. Wilhelm v. Rotman, 680 F.3d 1113, 1118 (9th Cir.
2012). We may affirm on any basis supported by the record, Thompson v. Paul,
547 F.3d 1055, 1058-59 (9th Cir. 2008), and we affirm in part, vacate in part, and
remand.
The district court properly dismissed Torricellas’s retaliation claims because
Torricellas failed to allege facts sufficient to show that the challenged actions did
not advance legitimate goals of the correctional institution. See Watison v. Carter,
668 F.3d 1108, 1114-15 (9th Cir. 2012) (elements of a retaliation claim in the
prison context).
The district court properly dismissed Torricellas’s due process claims
stemming from her disciplinary hearing because Torricellas failed to allege facts
sufficient to establish that defendants’ actions implicate a constitutionally-
protected liberty interest. See Sandin v. Conner, 515 U.S. 472, 484-85 (1995) (a
constitutionally protected liberty interest arises only when a restraint imposes an
“atypical and significant hardship on the inmate in relation to the ordinary
incidents of prison life”). To the extent Torricellas contends that the disciplinary
hearing resulted in a loss of good time credits that will affect the duration of her
sentence, her claim is Heck-barred. See Heck v. Humphrey, 512 U.S. 477, 486-87
(1994) (barring § 1983 actions when judgment in favor of the plaintiff would
necessarily imply the invalidity of a sentence not otherwise invalidated).

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The district court properly dismissed Torricellas’s due process claims
stemming from her parole hearing because Torricellas failed to allege facts
sufficient to show that the parole hearing denied her due process, including “an
opportunity to be heard and [ ] a statement of the reasons why parole was denied.”
Swarthout v. Cooke, 562 U.S. 216, 220 (2011) (a federal due process claim in
parole context requires only that prisoner be provided with an opportunity o be
heard and a statement of the reasons why parole was denied).
The district court dismissed Torricellas’s ex post facto claim on the basis of
its conclusion that Gilman v. Brown, 814 F.3d 1007 (9th Cir. 2016), held that
Marsy’s Law does not violate the Ex Post Facto Clause. However, Gilman held
that Marsy’s Law did not violate the Ex Post Facto Clause as applied to the facts of
that case. See id. at 1021. Because the district court erred in concluding that
Torricellas’s ex post facto claim was foreclosed per se by Gilman, we vacate the
district court’s judgment in part and remand for further proceedings on
Torricellas’s ex post facto claim only.
Although the district court did not directly address Torricellas’s motion for a
preliminary injunction, denial of injunctive relief was proper because Torricellas
failed to demonstrate a likelihood of success on the merits. See Winter v. Nat. Res.
Def. Council, 555 U.S. 7, 20-21 (2008) (factors for evaluating a motion for a
preliminary injunction); Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1021 (9th

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Cir. 2009) (standard of review).
We reject as unsupported by the record Torricellas’s contentions regarding
the magistrate judge’s jurisdiction, the standard of review applied by the district
court, and the alleged failure to consider all of her claims.
AFFIRMED in part, VACATED in part, and REMANDED.

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