Smith v. Myers

58 F. App'x 366

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 14, 2003
• Docket: No. 02-35291; D.C. No. CV-01-00318-ALH
• Status: Published

Opinion

MEMORANDUM

**

Oregon state prisoner William M. Smith appeals pro se the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging that state officials violated his constitutional rights in opposing Smith’s state habeas proceeding in state court. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo a dismissal for failure to state a claim, Milstein v. Cooley, 257 F.3d 1004, 1007 (9th Cir.2001), and we affirm in part, vacate in part, and remand.

Smith alleged that the term of imprisonment he received upon revocation of parole violated his constitutional rights, and that various state employees hindered his attempts to rectify the situation through a habeas petition in state court. The district court correctly dismissed certain of Smith’s claims without prejudice because, if successful, they would necessarily imply the invalidity of his sentence. See Heck v. Humphrey, 512 U.S. 477, 486-89,114 S.Ct. 2364,129 L.Ed.2d 383 (1994).

We vacate the judgment to the extent it dismisses two of Smith’s claims with prejudice, and remand for entry of judgment dismissing the entire action without prejudice under Heck. See Trimble v. City of Santa Rosa, 49 F.3d 583, 586 (9th Cir. 1995). The record is not sufficiently developed to support the district court’s determination that defendants Myers, Van Valkenburgh, Alexander and Lloyd are entitled to absolute immunity as prosecutors.

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 may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.