NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 1 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT CARLOS MARTINEZ, Sr., No. 21-16081

Plaintiff-Appellant, D.C. No. 1:21-cv-00146-DAD-EPG v.

MEMORANDUM* DEBORAH SAN JUAN, Board of Parole Hearings - Commissioner; VIJAI DESAI, Board of Parole Hearings - Commissioner; CALIFORNIA BOARD OF PAROLE HEARINGS,

Defendants-Appellees.

Appeal from the United States District Court

for the Eastern District of California

Dale A. Drozd, District Judge, Presiding

Submitted May 17, 2022** Before: CANBY, TASHIMA, and NGUYEN, Circuit Judges.

California state prisoner Carlos Martinez, Sr., appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging

*

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). constitutional claims in connection with his parole hearing. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (dismissal under 28 U.S.C. § 1915(e)(2)(B)(ii)); Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (dismissal under 28 U.S.C. § 1915A). We affirm.

The district court properly dismissed Martinez’s action because Martinez failed to allege facts sufficient to state any plausible claims. See Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (although pro se pleadings are to be construed liberally, a plaintiff must present factual allegations sufficient to state a plausible claim for relief); see also Swarthout v. Cooke, 562 U.S. 216, 220, 222 (2011) (in parole context, due process requires only that a prisoner be provided with an opportunity to be heard and a statement of the reasons why parole was denied; “a ‘mere error of state law’ is not a denial of due process” (citation omitted)); 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.” (citation and internal quotation marks omitted)); Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (“After incarceration, only the unnecessary and wanton infliction of pain constitutes cruel and unusual punishment forbidden by the Eighth Amendment.”); Thompson v. Davis, 295 F.3d 890, 898 n.4 (9th Cir. 2002) (explaining that the Americans with Disabilities Act does not bar a

2 21-16081 state parole board from considering an inmate’s disability in making an individualized assessment of the future dangerousness of the inmate); cf. Baumann v. Ariz. Dep’t of Corr., 754 F.2d 841, 846 (9th Cir. 1985) (explaining that an inmate’s disappointment caused by additional months of incarceration before parole is not a violation of the Eighth Amendment).

We do not consider matters not specifically and distinctly raised and argued in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

Martinez’s motion to appoint counsel (Docket Entry No. 5) is denied.

AFFIRMED.

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