                                                                            FILED
                           NOT FOR PUBLICATION                              NOV 21 2016

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



                            FOR THE NINTH CIRCUIT


SANTIAGO SOTO,                                   No. 15-16519

              Plaintiff-Appellant,               D.C. No. 2:15-cv-00780-EFB

 v.
                                                 MEMORANDUM*
JACK GARNER, Presiding
Commissioner, CDC; et al.,

              Defendants-Appellees.


                   Appeal from the United States District Court
                      for the Eastern District of California
                 Edmund F. Brennan, Magistrate Judge, Presiding**

                         Submitted November 16, 2016 ***

Before:      LEAVY, BERZON, and MURGUIA, Circuit Judges.

      California state prisoner Santiago Soto appeals pro se from the district

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

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             Soto 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).
violations in connection with the denial of parole. We have jurisdiction under 28

U.S.C. § 1291. We review de novo a dismissal under 28 U.S.C. § 1915A. Resnick

v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). 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). We affirm.

      To the extent that Soto challenged the denial of parole, such a claim must be

brought in a habeas petition because success on the claim would necessarily mean

immediate release or a shorter duration of incarceration. See Wilkinson v. Dotson,

544 U.S. 74, 79 (2005) (explaining that § 1983 action is proper only if success

would not “necessarily have meant immediate release or a shorter period of

incarceration”).

      The district court properly dismissed Soto’s procedural due process claim

because the allegations in Soto’s complaint show that he received adequate

process, as he “was allowed an opportunity to be heard and was provided a

statement of the reasons why parole was denied.” Swarthout v. Cooke, 562 U.S.

216, 220 (2011).

      The district court properly dismissed Soto’s claim for equitable relief under

the Ex Post Facto Clause because it duplicates the allegations and prayer for relief

in Gilman v. Brown, No. Civ. 2:05-cv-00830-MCE-CKD (E.D. Cal.), alleging that


                                          2                                    15-16519
Proposition 9 violates the Ex Post Facto Clause. See Pride v. Correa, 719 F.3d

1130, 1133 (9th Cir. 2013) (“[A] district court may dismiss those portions of the

complaint which duplicate the class action’s allegations and prayer for relief.”

(citation, internal quotation marks, and alterations omitted)).

      The district court did not abuse its discretion by dismissing the complaint

without granting leave to amend because amendment would be futile. See

Cervantes v. Countrywide Home Loans, Inc., 656 F.3d 1034, 1041 (9th Cir. 2011)

(setting forth standard of review).

      We do not consider arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

      AFFIRMED.




                                           3                                   15-16519
