Daniel Turner v. Bernie Giusto

356 F. App'x 944

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 14, 2009
• Docket: 08-35830
• Status: Unpublished

Opinion

MEMORANDUM **

Daniel Leroy Turner appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging improper delay in his arraignment and a violation of his right to a speedy trial. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Barren v. Harrington, 152 F.3d 1198, 1194 (9th Cir.1998) (order), and we affirm in part, vacate in part, and remand.

Because a judgment in Turner’s favor would necessarily imply the invalidity of his conviction, the district court properly dismissed the action. See Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). However, the dismissal under Heck should have been without prejudice. See Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir.1995).

Accordingly, we remand to the district court for the limited purpose of entering dismissal without prejudice.

Turner’s remaining contentions are unpersuasive.

Turner shall bear his own costs on appeal.

AFFIRMED in part, VACATED in part, and REMANDED.

** This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.