Alezander Delgado v. L. Gonzalez

Apr 4, 2017
15-15190
Versions:

thing as being a promisee. “[T]he intended beneficiary bears the burden of proving that the promise he seeks to enforce was actually made to him personally or to a class of which he is a member.” Spinks v. Equity Residential Briarwood Apartments, 171 Cal.App.4th 1004, 90 Cal. Rptr.3d 453, 470 (2009) (internal quotation marks and citation omitted). The co-guarantors obligated themselves to joint and several liability when and if it became necessary to repurchase property, but the Guaranty extended no farther than that.

Because Alameda offers no coherent interpretation of the Repurchase Guaranty from which I can glean an agreement by Tsakopoulos and Vail to release their co-guarantor from the right to seek contribution, I respectfully dissent.

Submitted March 31, 2017* San Francisco, California

Alexander Delgado, Pro Se

Kevin Allen Voth, Deputy Attorney General, California Department of Justice, San Francisco, CA, for Defendant-Appellee

Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit Judges.

MEMORANDUM **

California state prisoner Alexander Delgado appeals pro se from the district court‘s judgment dismissing his 42 U.S.C. § 1983 action alleging a First Amendment retaliation claim in connection with an allegedly false rules violation report. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal under Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). Whitaker v. Garcetti, 486 F.3d 572, 579 (9th Cir. 2007). We vacate and remand.

The district court relied on Edwards v. Balisok, 520 U.S. 641, 645, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997), for the proposition that Delgado‘s § 1983 was Heck barred. But in Nettles v. Grounds, 830 F.3d 922 (9th Cir. 2016) (en banc), cert. denied, (U.S. Jan. 9, 2017) (No. 16-6556), we recently said that the Heck bar as explained in Edwards “applies only to administrative determinations that ‘necessarily’ have an effect on ‘the duration of time to be served.‘” Id. at 929 n.4 (discussing Muhammad v. Close, 540 U.S. 749, 124 S.Ct. 1303, 158 L.Ed.2d 32 (2004) (per curiam)). Nettles held that “[i]f the invalidity of the disciplinary proceedings, and therefore the restoration of good-time credits, would not necessarily affect the length of time to be served, then the claim falls outside the core of habeas and may be brought in § 1983.” Id. at 929.

On this record, we do not know whether Delgado‘s rules violation and loss of sixty days of good-time credit would necessarily affect the length of time he must serve. It is possible for lost credits to be restored. Cal. Code Regs., tit. 15, § 3327-28. To the extent Delgado‘s rules violation would be used in a parole determination, the violation would only be one factor of many in a Board of Parole Hearings determination. See Nettles, 830 F.3d at 934-35.

We do not consider issues or arguments not specifically and distinctly raised and argued in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

Delgado‘s request for alternate dispute resolution, filed on December 15, 2015, is denied as moot.

VACATED and REMANDED.

Notes

*
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
**
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.