Gregory McClellan v. David Mountain, et al, No. 09-15596 (9th Cir. 2010)

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FILED OCT 06 2010 NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT GREGORY McCLELLAN, Plaintiff - Appellant, No. 09-15596 D.C. No. 1:09-cv-00256-LJO-GSA v. MEMORANDUM * DAVID MOUNTAIN; P. HEARD, Defendants - Appellees. Appeal from the United States District Court for the Eastern District of California Lawrence J. O Neill, District Judge, Presiding Submitted September 13, 2010 ** Before: SILVERMAN, CALLAHAN, and N.R. SMITH, Circuit Judges. Gregory McClellan appeals pro se from the district court s judgment dismissing his 42 U.S.C. § 1983 action alleging claims concerning parole conditions and revocation of parole. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007). * 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). 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. We affirm the dismissal of McClellan s claims challenging parole conditions. See Hatton v. Bonner, 356 F.3d 955, 961-67 (9th Cir. 2004) (rejecting ex post facto challenge); Neal v. Shimoda, 131 F.3d 818, 826-27 (9th Cir. 1997) (same); see also United States v. Bee, 162 F.3d 1232, 1234-35 (9th Cir. 1998) (rejecting constitutional challenge to condition of supervised release). However, we vacate the dismissal under Heck v. Humphrey, 512 U.S. 477 (1994), of McClellan s claim challenging parole revocation. The district court did not expressly consider the Heck exception set forth in Nonnette v. Small, 316 F.3d 872 (9th Cir. 2002). Accordingly, we vacate and remand for further proceedings on this claim. McClellan shall bear his own costs on appeal. AFFIRMED in part, VACATED in part, and REMANDED. 2 09-15596

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