                            NOT FOR PUBLICATION                          FILED
                     UNITED STATES COURT OF APPEALS                      MAY 18 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

JOSE J.R. ESPINOZA,                              No. 18-15565

                 Plaintiff-Appellant,            D.C. No. 1:17-cv-00338-LJO-SAB

 v.
                                                 MEMORANDUM*
D. DIAZ, Correctional Counselor I at
California City Correctional Facility; et al.,

                 Defendants-Appellees.

                    Appeal from the United States District Court
                       for the Eastern District of California
                    Lawrence J. O’Neill, Chief Judge, Presiding

                              Submitted May 15, 2018**

Before:      SILVERMAN, BEA, and WATFORD, Circuit Judges.

      California state prisoner Jose J.R. Espinoza appeals pro se from the district

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

claims arising from his classification hearing. We have jurisdiction under 28

U.S.C. § 1291. We review de novo. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.


      *
             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).
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

may affirm on any basis supported by the record, Hartmann v. Cal. Dep’t of Corr.

& Rehab., 707 F.3d 1114, 1121 (9th Cir. 2013), and we affirm.

      To the extent that success on Espinoza’s due process claim would

necessarily imply the invalidity of his sentence, the district court properly

concluded that Espinoza’s claim is Heck-barred because Espinoza failed to allege

facts demonstrating that his sentence has been invalidated. See Heck v. Humphrey,

512 U.S. 477, 486-87 (1994); see also Edwards v. Balisok, 520 U.S. 641, 648

(1997) (a “claim for declaratory relief and money damages, based on allegations

. . . that necessarily imply the invalidity of the punishment imposed, is not

cognizable under § 1983”).

      To the extent that success on Espinoza’s due process claim would not

necessarily imply the invalidity of his sentence, dismissal was proper because

Espinoza failed to allege facts sufficient to show how his classification caused an

“atypical and significant hardship on [him] in relation to the ordinary incidents of

prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995); Myron v. Terhune, 476

F.3d 716, 718 (9th Cir. 2007) (concluding that prison regulations governing

inmate’s classification did not create a liberty interest because inmate failed to

show that his raised classification level presented an “atypical and significant


                                           2                                    18-15565
hardship” or would “invariably affect the duration of his sentence” (citations and

quotation marks omitted)). Contrary to Espinoza’s contention, Burnsworth v.

Gunderson, 179 F.3d 771, 775 (9th Cir. 1999) is distinguishable because it dealt

with the expungement of prison discipline records.

      Dismissal of Espinoza’s equal protection claim was proper because Espinoza

failed to allege facts sufficient to state a plausible claim. See Barren, 152 F.3d at

1194 (setting forth elements of an equal protection claim); see also Hebbe v. Pliler,

627 F.3d 338, 341-42 (9th Cir. 2010) (although pro se pleadings are to be

construed liberally, a plaintiff must present factual allegations sufficient to state a

plausible claim for relief).

      AFFIRMED.




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