                                                                            FILED
                            NOT FOR PUBLICATION                             SEP 04 2015

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                             FOR THE NINTH CIRCUIT


ROBIN GILLEN STARR,                              No. 14-15957

               Plaintiff - Appellant,            D.C. No. 1:11-cv-02108-AWI-
                                                 GSA
 v.

CALIFORNIA DEPARTMENT OF                         MEMORANDUM*
CORRECTIONS AND
REHABILITATION,

               Defendant - Appellee.


                    Appeal from the United States District Court
                       for the Eastern District of California
                    Anthony W. Ishii, District Judge, Presiding

                            Submitted August 25, 2015**

Before:        McKEOWN, CLIFTON, and HURWITZ, Circuit Judges.

      California state prisoner Robin Gillen Starr appeals pro se from the district

court’s judgment dismissing his 42 U.S.C. § 1983 action alleging constitutional

claims related to his sentencing and incarceration. We have jurisdiction under 28

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
U.S.C. § 1291. We review de novo. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.

2000) (dismissal under 28 U.S.C. § 1915A); Barren v. Harrington, 152 F.3d 1193,

1194 (9th Cir. 1998) (order) (dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii)). We

affirm in part, vacate in part, and remand.

      To the extent that Starr seeks release from prison, or modification or

commutation of his sentence, dismissal was proper because his “exclusive remedy

is a writ of habeas corpus.” Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th

Cir. 1995) (per curiam); see also Ybarra v. Reno Thunderbird Mobile Home Vill.,

723 F.2d 675, 681-82 (9th Cir. 1984) (“If a prisoner seeks both release from

confinement and damages or injunctive relief in an action under § 1983, the court

may properly dismiss the former claim while retaining the latter.”). However,

because the district court dismissed the action with prejudice, we vacate the

judgment and remand with instructions for the district court to dismiss these claims

without prejudice. See Trimble, 49 F.3d at 586.

      To the extent that Starr raised due process and equal protection claims in

connection with events that occurred in prison, the district court properly dismissed

these claims because Starr failed to allege facts sufficient to state cognizable claims

for relief. See Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (although pro

se pleadings are to be liberally construed, a plaintiff must still present factual


                                            2                                        14-15957
allegations sufficient to state a plausible claim for relief); see also Wright v.

Riveland, 219 F.3d 905, 913 (9th Cir. 2000) (setting forth elements of a procedural

due process claim); Barren, 152 F.3d at 1194-95 (listing elements of an equal

protection claim).

      We do not consider Starr’s claim regarding the denial of an opportunity to

question witnesses because Starr failed to raise such a claim in his operative first

amended complaint. See Turnacliff v. Westly, 546 F.3d 1113, 1120 (9th Cir. 2008).

      Any motions and requests set forth in Starr’s opening brief are denied.

      AFFIRMED in part, VACATED in part, and REMANDED.




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