                                                                            FILED
                            NOT FOR PUBLICATION                             DEC 04 2014

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



                             FOR THE NINTH CIRCUIT


DONALD ROBIN BARREN,                             No. 14-15074

               Plaintiff - Appellant,            D.C. No. 2:13-cv-01492-RCJ-
                                                 GWF
  v.

PHILIP J. KOHN; et al.,                          MEMORANDUM*

               Defendants - Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                    Robert Clive Jones, District Judge, Presiding

                           Submitted November 18, 2014**

Before:        LEAVY, FISHER, and N.R. SMITH, Circuit Judges.

       Donald Robin Barren, a Nevada state prisoner, appeals pro se from the

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

constitutional violations in connection with the criminal proceedings that led to

Barren’s conviction, as well as subsequent conduct by prison officials. We have

          *
             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).
jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s

dismissal under 28 U.S.C. § 1915A for failure to state a claim. Hamilton v. Brown,

630 F.3d 889, 892 (9th Cir. 2011). We review for an abuse of discretion a denial

of leave to amend. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc).

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, and remand.

      The district court properly dismissed Counts I through VIII of Barren’s

complaint as Heck-barred because success on the merits of his claims would

necessarily imply the invalidity of his conviction or sentence, and Barren failed to

allege that his conviction has been invalidated. See Heck v. Humphrey, 512 U.S.

477, 486-87 (1994). To the extent that Barren alleged additional conduct by the

prosecutors involved in his criminal proceedings not subject to Heck’s preclusive

effect, these claims are barred by prosecutorial immunity. See Heinemann v.

Satterberg, 731 F.3d 914, 918 (9th Cir. 2013) (decision to initiate prosecution falls

within prosecutorial immunity).

      Contrary to Barren’s contention, Barren is not entitled to a “Heck exception”

based on the allegations in Count IX of his complaint. See Whitaker v. Garcetti,

486 F.3d 572, 583-85 (9th Cir. 2007) (explaining that the “sole dispositive


                                          2                                    14-15074
question is whether a plaintiff’s claim, if successful, would imply the invalidity of

his conviction”).

      Because it is clear from the record that the deficiencies in Counts I through

VIII cannot be cured by amendment, the district court did not abuse its discretion

in dismissing these claims without leave to amend. See Lucas v. Dep’t of Corr., 66

F.3d 245, 248 (9th Cir. 1995) (per curiam).

      Dismissal of Counts IX and X was proper because Barren failed to allege

facts sufficient to show that the alleged denial of library access hindered his efforts

to appeal the denial of his habeas petition, see Lewis v. Casey, 518 U.S. 343, 351-

53 (1996) (actual injury requirement in access-to-courts claim requires showing

frustration of the pursuit of a nonfrivolous legal claim), and he failed to allege facts

sufficient to show that his First Amendment rights were chilled by the alleged

retaliation, see Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (setting

forth elements of a First Amendment retaliation claim in the prison context).

However, dismissal of these claims without leave to amend was improper at this

early stage in the case because Barren was proceeding pro se and he was not

provided with any opportunity to amend. See Flowers v. First Hawaiian Bank,

295 F.3d 966, 976 (9th Cir. 2002) (this court is “very cautious in approving a

district court’s decision to deny pro se litigants leave to amend”); Lucas, 66 F.3d at


                                           3                                     14-15074
248 (“Unless it is absolutely clear that no amendment can cure the defect, . . . a pro

se litigant is entitled to notice of the complaint’s deficiencies and an opportunity to

amend prior to dismissal of the action.”).

      Specifically, with respect to Count IX, the district court previously found

that Barren failed to show good cause for an extension of time to appeal the denial

of his habeas petition, but this does not establish that Barren cannot state a § 1983

claim based on the alleged conduct. Moreover, in addition to seeking

reinstatement of his habeas proceedings, Barren seeks damages, a remedy he may

be able to obtain if successful on a § 1983 claim.

      With respect to Count X, the lack of any pending motions or deadlines in

Barren’s habeas proceeding between June 15, 2011 and September 2011 does not

establish that Barren cannot amend his complaint to allege that his First

Amendment rights were chilled by the alleged conduct.

      Accordingly, we affirm the dismissal of Counts I through VIII, vacate the

dismissal of Counts IX and X, and remand with instructions to allow Barren the

opportunity to amend his complaint with respect to Counts IX and X.

      AFFIRMED in part, VACATED in part, and REMANDED.




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