Fink v. Flynn

53 F. App'x 432

• Court: Court of Appeals for the Ninth Circuit
• Decided: December 10, 2002
• Docket: No. 02-15606; D.C. No. CV-00-00309-WBS
• Status: Published

Opinion

MEMORANDUM

**

Former California state prisoner David M. Fink appeals pro se the district court’s judgment dismissing his civil rights action without leave to amend. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo dismissals for failure to state a claim, Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.1998) (order), and we review for abuse of discretion dismissals without granting leave to amend, Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc). We affirm in part, reverse in part, and remand for further proceedings.

We affirm the dismissal because Fink’s claims effectively challenged the fact or duration of his confinement resulting from a conviction at a second hearing, and Fink failed to allege the conviction at the second hearing had been reversed. See Heck v. Humphrey, 512 U.S. 477, 481, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). However, the conviction at the second hearing was reversed. Therefore, the district court should have granted leave to amend because Fink could have possibly cured the defects in his complaint by the allegation of other facts. See Lopez, 203 F.3d at 1127; Cline v. Brusett, 661 F.2d 108, 111—112 (9th Cir.1981) (claim pursuant to 42 U.S.C. § 1983 for malicious prosecution).

AFFIRMED, in part, REVERSED, in part, and REMANDED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.