Andre Brigham Young, Plaintiff-appellant, v. Irwin S. Dreiblatt, Individually and in His Officialcapacity; Savio Chan, Defendants-appellees, 97 F.3d 1463 (9th Cir. 1996)

MEMORANDUM^** 

Andre Brigham Young, a former Washington inmate who is civilly confined pursuant to the Washington Sexually Violent Predators Act, Wash.Rev.Code §§ 71.09.010-71.09.902 ("the Act"), appeals pro se the district court's dismissal without prejudice of his 42 U.S.C. § 1983 action seeking compensatory, declaratory, and injunctive relief against the psychiatrists who recommended his civil confinement as well as an expungement of false information from his prison record. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the district court's dismissal of an action for failure to state a claim, Everest and Jennings, Inc. v. American Motorists Ins. Co., 23 F.3d 226, 228 (9th Cir. 1994), and we affirm in part, reverse in part, and remand.

The Supreme Court has held

that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a section 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issues of a writ of habeas corpus.

Heck v. Humphrey, 114 S. Ct. 2364, 2372 (1994) (footnote and citation omitted). We have held that challenges to civil confinement under the Act are properly brought as part of a habeas proceeding. Brock v. Weston, 31 F.3d 887, 889-90 (9th Cir. 1994). Accordingly, insofar as Young sought compensatory, declaratory and injunctive relief against the psychiatrists for their allegedly retaliatory actions in recommending his continued civil confinement under the Act in a section 1983 action, and failed to show that his civil confinement had been invalidated, the district court did not err by concluding that Young had failed to state a claim. See Heck, 114 S. Ct. at 2372; Brock, 31 F.3d at 889-90.¹ 

Young also contends that the district court erred by dismissing his claims that he had a due process right to have false information expunged from his prison record. Because the removal of false information from Young's prison record would not necessarily establish the invalidity of Young's civil confinement, the district court improperly dismissed this claim. See Heck, 114 S. Ct. at 2372 ("if the district court determines that the plaintiff's action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed") (footnote omitted).

We previously held that "Washington law provides a liberty interest in accurate prison record information." Hernandez v. Johnston, 833 F.2d 1316, 1319 (9th Cir. 1987) (citation omitted). Since we decided Hernandez, however, the Supreme Court has announced a new test for determining whether a state has created a liberty interest under the Due Process Clause. Sandin v. Conner, 115 S. Ct. 2293, 2300-01 (1995); accord Keenan v. Hall, 83 F.3d 1083, 1088-89 (9th Cir. 1996). Here, we do not have a sufficiently developed record to determine whether the state of Washington has created a liberty interest in accurate prison records. See Gotcher v. Wood, 66 F.3d 1097, 1101 (9th Cir. 1995), petition for cert. filed, 64 U.S.L.W. 3605 (U.S. Feb. 26, 1996) (No. 95-1385). Accordingly, we reverse the district court's dismissal of Young's due process claim seeking expungement of false information from his prison record and remand so that the district court can determine whether Young has a liberty interest, see Keenan, 83 F.3d at 1089, and whether Young has followed the appropriate state procedures to expunge his prison record, see Hernandez, 833 F.2d at 1318-19.

Each party shall bear its own costs on appeal.

AFFIRMED in part, REVERSED in part, and REMANDED.²