                              NOT FOR PUBLICATION                        FILED
                      UNITED STATES COURT OF APPEALS                     MAR 20 2015
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                              FOR THE NINTH CIRCUIT


DUKE MONROE RICHARDSON, Jr.,                     No. 14-16203

              Plaintiff - Appellant,             D.C. No. 1:14-cv-00031-SKO

   v.
                                                 MEMORANDUM*
DEPARTMENT OF CORRECTIONS
AND REHABILITATION; et al.,

              Defendants - Appellees.

                     Appeal from the United States District Court
                         for the Eastern District of California
                    Sheila K. Oberto, Magistrate Judge, Presiding**

                              Submitted March 10, 2015***

Before:        FARRIS, WARDLAW, and PAEZ, Circuit Judges.

        Duke Monroe Richardson, Jr., appeals pro se from the district court’s

judgment in his 42 U.S.C. § 1983 action alleging constitutional violations in


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            Richardson consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
        ***
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
connection with prison disciplinary proceedings. We have jurisdiction under 28

U.S.C. § 1291. We review de novo. Watison v. Carter, 668 F.3d 1108, 1112 (9th

Cir. 2012) (dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii)); Hamilton v. Brown,

630 F.3d 889, 892 (9th Cir. 2011) (dismissal under 28 U.S.C. § 1915A). We

vacate in part and remand.

      On appeal, Richardson challenges only the dismissal of his Fourteenth

Amendment due process claim as Heck-barred. It appears that Richardson’s claim

includes a challenge to an unconstitutional procedure – namely, the denial of an

investigator – and is based in part on an alleged failure to issue Rules Violation

Reports to other inmates involved in the incident underlying Richardson’s

disciplinary proceedings and, therefore, is not Heck-barred. See Nonnette v.

Small, 316 F.3d 872, 875 n.3 (9th Cir. 2002) (“A prisoner who seeks damages only

for being subjected to unconstitutional procedures, without implying the invalidity

of (or seeking damages for) the resulting loss of good-time credits, may proceed

under § 1983 without first invalidating his disciplinary proceeding.”); see also

Muhammad v. Close, 540 U.S. 749, 751 (2004) (per curiam) (“Heck’s requirement

to resort to state litigation and federal habeas before § 1983 is not . . . implicated

by a prisoner’s challenge that threatens no consequence for his conviction or the

                                            2                                    14-16203
duration of his sentence.”). As to the remainder of Richardson’s claim, the district

court correctly held that it was Heck-barred, but it appears that Richardson has

since been released from custody, and Heck might no longer apply. See Nonnette,

316 F.3d at 875-77 (a § 1983 action for damages can be maintained, even though

success in that action would imply the invalidity of the disciplinary proceedings

that caused revocation of a prisoner’s good-time credits, where, after the district

court had dismissed the action under Heck, the prisoner was released from

incarceration and on parole). We therefore vacate the dismissal of Richardson’s

due process claim only and remand so that the district court may review in the first

instance the matters raised herein.

      VACATED in part and REMANDED.




                                          3                                   14-16203
