Newman v. Bowles

332 F. App'x 419

• Court: Court of Appeals for the Ninth Circuit
• Decided: August 17, 2009
• Docket: No. 08-56449
• Status: Published

Opinion

MEMORANDUM

**

James Michael Newman appeals pro se from the district court’s judgment dismissing with prejudice his 42 U.S.C. § 1983 action alleging that he was searched, arrested and ultimately convicted based on an invalid document that subjected him to parole search conditions. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Whitaker v. Garcetti, 486 F.3d 572, 579 (9th Cir.2007), and we affirm in part, vacate in part, and remand.

The district court properly dismissed the action pursuant to Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), in light of the state court’s finding that the search was not based on a parole search condition, and Newman’s failure to show that the state court’s finding has been overturned or invalidated. See id. at 486-87, 114 S.Ct. 2364. However, we vacate the judgment and remand so that the district court may dismiss the action without prejudice. See Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir.1995) (per curiam).

Because we affirm the judgment based on Heck, we do not reach the district court’s alternative bases for dismissal.

The parties shall bear their 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 9th Cir. R. 36-3.