Lonnie Ray Carter v. Mary Ellen Ramey Dennis O'leary, Deputy Prosecuting Attorney

60 F.3d 832, 1995 U.S. App. LEXIS 25455, 1995 WL 394365

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 30, 1995
• Docket: 92-35560
• Status: Published

Opinion

60 F.3d 832
NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Lonnie Ray CARTER, Plaintiff-Appellant,
v.
Mary Ellen RAMEY; Dennis O'Leary, Deputy Prosecuting
Attorney, Defendants-Appellees.

No. 92-35560.

United States Court of Appeals, Ninth Circuit.

Submitted June 26, 1995.*
Decided June 30, 1995.

Before: O'SCANNLAIN, LEAVY, and HAWKINS, Circuit Judges.

MEMORANDUM**

Washington state prisoner Lonnie R. Carter appeals pro se the district court's dismissal as frivolous of his 42 U.S.C. Sec. 1983 action. Carter contends that his defense counsel and King County violated his constitutional rights at his criminal trial through ineffective assistance and malicious prosection. We have jursidiction purusant to 28 U.S.C. Sec. 1291. We construe the dismissal to be without prejudice, see Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995), and affirm.

A prisoner's civil rights claim for damages attributable to an allegedly unconstitutional conviction or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid does not accrue until his sentence or fact of imprisonment has been invalidated. Heck v. Humphrey, 114 S. Ct. 2364, 2373 (1994); Trimble, 49 F.3d at 585. Because Carter's allegations necessarily imply the invalidity of his conviction, and he has not shown that his conviction has been overturned, or otherwise invalidated, Carter has no damages claim at this time. See Heck, 114 S. Ct. at 2373; Trimble, 49 F.3d at 585. Accordingly, the district court properly dismissed this action as a matter of law. See Heck, 114 S. Ct. at 2372.

AFFIRMED.

* The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir. R. 34-4

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3