Walter Tripp v. Connie Bisbee , 670 F. App'x 494 ( 2016 )

FILED
NOT FOR PUBLICATION NOV 02 2016
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WALTER TRIPP, No. 15-17365
Plaintiff-Appellant, D.C. No. 3:15-cv-00030-RCJ-VPC
v.
MEMORANDUM*
CONNIE BISBEE; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, District Judge, Presiding
Submitted October 25, 2016**
Before: LEAVY, GRABER, and CHRISTEN, Circuit Judges.
Walter Tripp, a Nevada state prisoner, appeals pro se from the district
court’s order denying his motion to reconsider the district court’s judgment in his
42 U.S.C. § 1983 action alleging that defendants violated his equal protection
rights in connection with parole hearings. We review for an abuse of discretion a
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
district court’s denial of a motion for reconsideration under Fed. R. Civ. P. 60(b).
Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th
Cir. 1993). We reverse and remand.
The district court dismissed Tripp’s action because it concluded that
defendants, who are parole board members, were entitled to absolute quasi-judicial
immunity. However, while defendants are immune from suit for damages, because
Tripp sought only injunctive and declaratory relief, defendants were not entitled to
immunity. See Thornton v. Brown, 757 F.3d 834, 839 (9th Cir. 2013) (absolute
immunity does not bar injunctive relief claim against parole unit supervisor);
Buckwalter v. Nev. Bd. of Med. Exam’rs, 678 F.3d 737, 747 (9th Cir. 2012)
(“Absolute immunity is not a bar to injunctive or declaratory relief.”).
The district court also dismissed Tripp’s action because it concluded that, to
the extent Tripp is attempting to challenge the fact or duration of his imprisonment,
Tripp’s remedy is a writ of habeas corpus. However, because Tripp sought a new
parole hearing and not immediate or speedier release, success in this action would
not necessarily demonstrate the invalidity of Tripp’s continued confinement or its
duration. See Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) (allowing
procedural challenges to parole hearings because the injunctive and declaratory
relief that plaintiffs sought under § 1983 “would not necessarily spell immediate or
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speedier release”).
Accordingly, we reverse the district court’s denial of the motion for
reconsideration, and remand for further proceedings consistent with this
disposition. We express no opinion on the merits of Tripp’s claims or his
entitlement to the relief sought.
We lack jurisdiction to consider Tripp’s contentions regarding the order
dismissing his complaint without leave to amend because the operative notice of
appeal was timely only as to the denial of his Rule 60(b) motion. See Fed. R. App.
P. 4(a)(1)(A) (notice of appeal must be filed “within 30 days after entry of the
judgment or order appealed from”); Fed. R. App. P. 4(a)(4)(A) (tolling
requirements). In addition, we do not consider Tripp’s arguments regarding his
motion to amend the complaint because the motion was filed after judgment was
entered.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
REVERSED and REMANDED.
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