OpenJurist

133 F3d 926 Cerda v. Ayers

133 F.3d 926

David CERDA, Jr., Plaintiff-Appellant,
v.
Robert AYERS; Joe McGrath; S. Lawrence; D. Martel; G.
Bonnie, Defendants-Appellees.

No. 97-15038.

United States Court of Appeals, Ninth Circuit.

Submitted Dec. 15, 1997.**
Decided Dec. 19, 1997.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Before: SNEED, LEAVY, and TROTT, Circuit Judges.

1

MEMORANDUM*

2

California state prisoner David Cerda, Jr. appeals pro se the district court's sua sponte dismissal under 28 U.S.C. § 1915A of his 42 U.S.C. § 1983 action. Cerda alleged that his civil rights had been violated by prison officials' failure to let him see his file prior to a Board of Prison Terms ("Board") hearing extending his minimum prison term and refusal to correct false reports in his prison central file. We have jurisdiction pursuant to 28 U.S.C. 1291. We dismiss the appeal sua sponte pursuant to 28 U.S.C. § 1915(e)(2). See Marks v. Solcum 98 F.3d 494, 496 (9th Cir.1996) (per curiam).

3

Cerda contends that his right to due process was violated when prison officials failed to allow him to view his record prior to the hearing and because the Beard relied on false reports that were in his file. Cerda's contentions necessarily affect the duration of his sentence and Cerca has not demonstrated that the reports upon which his minimum sentence increase were based have been expunged. Accordingly, we dismiss the appeal. See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994); Preiser v. Rodriquez, 411 U.S. 475, 500 (1973).

4

This dismissal is without prejudice. See Tremble v. City of Santa Ana, 49 F.3d 583, 585 (9th Cir.1995) (per curiam).

5

DISMISSED.

**

The panel unanimously finds @his case suitable for decision without oral argument. See Fed.R.App. P. 34(a); 9th Cir. R. 34-4

*

This disposition is not apppropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3