Dimitar Dermendziev v. State of Washington

624 F. App'x 454

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 30, 2015
• Docket: 14-35012
• Status: Unpublished

Opinion

MEMORANDUM **

Washington state prisoner Dimitar Der-mendziev appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging claims related to an investigation by Child Protective Services and his subsequent criminal conviction and incarceration. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.2000) (dismissal under 28 U.S.C. § 1915A); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.1998) (order) (dismissal under 28 U.S.C. § 1915(e)(2)). We affirm in part, vacate in part, and remand.

The district court properly dismissed without prejudice Dermendziev’s claims relating to his conditions of confinement at Coyote Ridge Corrections Center because venue was not proper in the Western District of Washington. See 28 U.S.C. §§ 1391(b), 1406(a); Myers v. Bennett Law Offices, 238 F.3d 1068, 1071 (9th Cir.2001) (setting forth standard of review).

The district court properly dismissed as Heck-barred Counts 1 and 2 of Dermendziev’s complaint because success on these claims would necessarily imply the invalidity of his conviction, and Dermendziev failed to allege that his conviction has been invalidated. See Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) (holding that, “in order to recover damages for an allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid,” a plaintiff must prove “that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court’s issuance of a writ of habeas corpus”). However, because the district court dismissed these claims with prejudice, we vacate the judgment as to these claims, 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) (dismissals under Heck are without prejudice).

The district court did not abuse its discretion by dismissing Dermendziev’s complaint without leave to amend because Dermendziev sought to add new claims based on unrelated facts against new defendants at another prison. See Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir.2000) (setting forth standard of review).

We reject Dermendziev’s contentions regarding his immunity from liability, his alleged third-party standing rights to assert claims on behalf of his family, and the district court’s alleged failure to consider his anti-SLAPP motion or to stay the proceedings.

AFFIRMED in part, VACATED in part, and REMANDED,

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.