                            NOT FOR PUBLICATION                           FILED
                     UNITED STATES COURT OF APPEALS                        JAN 26 2017
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT



 RAY MEDINA,                                       No. 15-55787

                   Plaintiff-Appellant,            D.C. No. 3:09-cv-00169-JAH-KSC

   v.
                                                   MEMORANDUM*
 B. MORRIS, Facility Captain at RJD; et al.,

                   Defendants-Appellees.

                     Appeal from the United States District Court
                        for the Southern District of California
                      John A. Houston, District Judge, Presiding

                            Submitted January 18, 2017**

Before:       TROTT, TASHIMA, and CALLAHAN, Circuit Judges.

        Ray Medina, a California state prisoner, appeals pro se from the district

court’s summary judgment and dismissal order in his 42 U.S.C. § 1983 action

alleging due process, deliberate indifference to safety, and retaliation claims. We

have jurisdiction under 28 U.S.C. § 1291. We review de novo. Doe v. Abbott
        *
             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).
Labs., 571 F.3d 930, 933 (9th Cir. 2009). We may affirm on any ground supported

by the record. Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th

Cir. 2008). We affirm in part, vacate in part, reverse in part, and remand.

      To the extent that success on Medina’s due process claim stemming from his

2008 disciplinary hearing would necessarily imply the invalidity of his disciplinary

conviction, Medina’s claim is barred by Heck v. Humphrey, 512 U.S. 477 (1994)

because Medina failed to allege facts demonstrating that his disciplinary sentence

has been invalidated. See Edwards v. Balisok, 520 U.S. 641, 645 (1997) (challenge

to loss of good-time credits not cognizable under § 1983). To the extent that

success on Medina’s due process claim would not necessarily imply the invalidity

of his disciplinary conviction, the district court properly dismissed this claim

because Medina failed to allege facts sufficient to show that he was denied any

procedural protections that were due. See Wolff v. McDonnell, 418 U.S. 539, 563-

70 (1974) (setting forth due process requirements for prison disciplinary

proceedings). Because dismissals under Heck should be without prejudice, we

vacate the judgment to the extent that it dismissed a Heck-barred claim with

prejudice and remand for entry of dismissal without prejudice. See Trimble v. City

of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995).

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      To the extent that Medina’s due process claim was based on his 2007

placement in administrative segregation, dismissal was proper because Medina

failed to allege facts sufficient to show a due process violation. See Sandin v.

Conner, 515 U.S. 472, 483-84 (1995) (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”); Toussaint v. McCarthy, 801 F.2d 1080, 1100-01

(9th Cir. 1986) (requirements for placement in administrative segregation),

abrogated in part on other grounds by Sandin, 515 U.S. 472.

      The district court properly granted summary judgment on Medina’s

deliberate indifference claim because Medina failed to raise a genuine dispute of

material fact as to whether defendants were deliberately indifferent to Medina’s

safety by placing Medina in a cell with inmate Dale. See Cortez v. Skol, 776 F.3d

1046, 1050 (9th Cir. 2015) (setting forth elements of a claim against prison

officials for failure-to-protect inmates from violence by other inmates).

      The district court properly granted summary judgment for defendants

Marrero, Morris, Cortez, Franco, Glover, Gonzales, and Payne on Medina’s

retaliation claim because Medina failed to raise a genuine dispute of material fact

as to whether these defendants acted with a retaliatory motive or whether there was

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an absence of a legitimate correctional goal. See Brodheim v. Cry, 584 F.3d 1262,

1271 (9th Cir. 2009) (“To prevail on a retaliation claim, a plaintiff must show that

his protected conduct was the ‘substantial’ or ‘motivating’ factor behind the

defendant’s conduct.” (citation and internal quotation marks omitted)); Pratt v.

Rowland, 65 F.3d 802, 806 (9th Cir. 1995) (“The plaintiff bears the burden of

pleading and proving the absence of legitimate correctional goals for the conduct

of which he complains.”).

      The district court properly granted summary judgment for defendant Brown

on Medina’s retaliation claim arising from searches, a rules violation report, and

placement in administrative segregation because Medina failed to raise a genuine

dispute of material fact as to whether Brown acted with a retaliatory motive or

lacked a legitimate correctional goal. See Brodheim, 584 F.3d at 1271; Pratt, 65

F.3d at 806.

      However, summary judgment for Brown was improper on Medina’s claim

arising from an inmate attack. The district court considered whether Brown

retaliated against Medina based on Medina’s filing of a religious grievance, but

Medina also contends that Brown retaliated against him in response to a staff

complaint. Medina submitted evidence that Brown told him that if Medina filed a

                                          4                                     15-55787
staff complaint “you will regret it,” and later told Medina, after Medina was

attacked by another inmate, “I told you to drop your appeal(s).” Accordingly,

Medina raised a genuine dispute of material fact regarding this retaliation claim

against Brown. See Brodheim, 584 F.3d at 1269 (elements of retaliation claim).

Therefore, we remand for further proceedings on the claim that Brown retaliated

by arranging an inmate attack.

      The district court did not abuse its discretion in denying Medina’s motions

for appointment of counsel because Medina failed to demonstrate exceptional

circumstances. See Cano v. Taylor, 739 F.3d 1214, 1218 (9th Cir. 2014) (setting

forth standard of review and requirements for appointment of counsel). In light of

the remand, the district court should reevaluate whether counsel should be

appointed.

      Medina’s requests for counsel on appeal and for the case to be remanded to

new judges, set forth in the opening brief, are denied.

      The parties shall bear their own costs on appeal.

      AFFIRMED in part, VACATED in part, REVERSED in part, and

REMANDED.




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