Gary Bettencourt v. Gorden Spencer ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 12 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GARY RAY BETTENCOURT, No. 19-16524
Plaintiff-Appellant, D.C. No. 2:18-cv-02895-KJM-KJN
v.
MEMORANDUM*
GORDEN SPENCER, Merced County
Prosecutor; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Kimberly J. Mueller, District Judge, Presiding
Submitted May 6, 2020**
Before: BERZON, N.R. SMITH, and MILLER, Circuit Judges.
California state prisoner Gary Ray Bettencourt appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging wrongful
conviction and conspiracy claims. We have jurisdiction under 28 U.S.C. § 1291.
We review de novo a district court’s dismissal under 28 U.S.C. § 1915A. Resnick
*
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).
v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). We affirm.
The district court properly dismissed Bettencourt’s action as barred by Heck
v. Humphrey, 512 U.S. 477 (1994), because success would necessarily imply the
invalidity of Bettencourt’s conviction or sentence, and Bettencourt failed to allege
facts sufficient to show that his conviction or sentence has been invalidated. See
Wilkinson v. Dotson, 544 U.S. 74, 78 (2005) (a prisoner in state custody cannot use
a § 1983 action to challenge the fact or duration of his confinement, but must
instead seek federal habeas corpus relief). To the extent that Bettencourt seeks
release on parole as an alternative to summary release, his request is denied for the
same reasons.
Bettencourt’s motion for appointment of counsel (Docket Entry No. 5) is
denied.
AFFIRMED.
2 19-16524