Opinion
No. 08-35640.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed March 30, 2010.
Andre Brigham Young, Steilacoom, WA, pro se.
Donna J. Hamilton, Esquire, Assistant Attorney General, William M. Van Hook, Esquire, Assistant Attorney General, Office of the Washington Attorney General, Olympia, WA, for State of Washington, Ron McKenna, Benton County Superior Court Judges, Benton County Prosecuting Attorney, Columbia County Superior Court Judges, Columbia County Prosecuting Attorney, Clallam County Superior Court Judges, Clallam County Prosecuting Attorney, Garfield County Superior Court Judges, Garfield County Prosecuting Attorney, Kitsap County Superior Court Judges, Kitsap County Prosecuting Attorney, Mason County Superior Court Judges, Mason County Prosecuting Attorney, Wahkiakum County Superior Court Judges, Wahkiakum County Prosecuting Attorney, Walla Walla County Superior Court Judges, Walla Walla County Prosecuting Attorney, Yakima County Superior Court Judges, Yakima County Prosecuting Attorney, Snohomish County Prosecuting Attorney, Snohomish County Superior Court Judges, Cowlitz County Prosecuting Attorney, Cowlitz County Superior Court Judges, Adams County Prosecuting Attorney, Adams County Superior Court Judges, Grant County Prosecuting Attorney, Grant County Superior Court Judges.
David Eldred, Esquire, Seattle, WA, for City of Seattle, King County, Norman K. Maleng, Richard A. Jones, King County Superior Court Judges.
Appeal from the United States District Court for the Western District of Washington, John C. Coughenour, District Judge, Presiding. D.C. No. 2:06-cv-01687-JCC.
Before: SCHROEDER, PREGERSON, and RAWLINSON, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Andre Brigham Young, a former Washington state prisoner and current civil detainee, appeals pro se from the district court's judgment dismissing his 42 U.S.C. § 1983 action as barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Whitaker v. Garcetti, 486 F.3d 572, 579 (9th Cir. 2007). We affirm in part, vacate in part, and remand.
The district court properly dismissed the action as Heck-barred because a judgment in Young's favor would necessarily imply the invalidity of his conviction, and Young failed to allege that his conviction has been invalidated. See Heck, 512 U.S. at 486-87, 114 S.Ct. 2364; Huftile v. Miccio-Fonseca, 410 F.3d 1136, 1139-10 (9th Cir. 2005) (applying Heck to civil detainees). However, we vacate the judgment to the extent that it dismissed the action with prejudice, and remand for entry of dismissal without prejudice. See Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995) (per curiam) (stating that dismissals under Heck are without prejudice).
We do not consider arguments raised for the first time on appeal. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
The parties shall bear their own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.