Hiltunen v. Bayer

¶1MEMORANDUM2

¶2Robert William Hiltunen, a Nevada state prisoner, appeals pro se the district court’s judgment dismissing his 42 U.S.C. § 1983 action without prejudice as barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo dismissals under 28 U.S.C. § 1915A. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.2000). We vacate and remand.

¶3Hiltunen alleged that he was denied due process at a pre-parole hearing where a panel refused to certify that he is “not a menace to the health, safety or morals of others” under Nev.Rev.Stat. § 213.1214. He also alleged that consideration of his “significant alcohol problem” at the preparóle hearing violated the Americans with Disabilities Act. Hiltunen did not attack the procedures or outcome of his subsequent parole hearing.

¶4We conclude that Hiltunen’s allegations do not necessarily imply the invalidity of his parole denial and thus his continuing confinement. Cf. Butterfield v. Bail, 120 F.3d 1023, 1024 (9th Cir.1997). If Hiltunen prevails on his claims, “it will in no way guarantee parole or necessarily shorten [his] prison sentence[ ] by a single day” because the parole board will still have authority to deny parole “on the basis of any of the grounds presently available to it in evaluating such a request.” Neal v. Shimoda, 131 F.3d 818, 824 (9th Cir. 1997) (emphasis in original); Bogovich v. Sandoval, 189 F.3d 999, 1003-04 (9th Cir.1999). Accordingly, the district court erred by requiring that Hiltunen first seek invalidation of his parole denial via a writ of habeas corpus. See Neal, 131 F.3d at 824; Bogovich, 189 F.3d at 1004. We vacate the district court’s judgment and remand for further proceedings.

¶5Hiltunen’s “Motion to Appoint Counsel on Oral Arguments” is denied.

¶6VACATED and REMANDED.