Wewee v. Marroquin

51 F. App'x 684

• Court: Court of Appeals for the Ninth Circuit
• Decided: November 21, 2002
• Docket: No. 02-55366; D.C. No. CV-01-04654-AHS
• Status: Published

Opinion

MEMORANDUM

**

Arizona resident David Wayne Wewee appeals pro se the district court’s summary judgment in favor of police officers and the City of Santa Monica in his 42 U.S.C. § 1983 action alleging false arrest. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Smithart v. Towery, 79 F.3d 951, 952 (9th Cir.1996) (per curiam), and we affirm in part and vacate in part.

The undisputed facts establish that Wewee was convicted of challenging a person to a fight. The district court properly dismissed Wewee’s false arrest claim because a favorable judgment would necessarily imply the invalidity of his conviction. See Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994).

Because Wewee may reassert his Section 1983 claim if he succeeds in invalidating his conviction, the district court should have dismissed his false arrest claim without prejudice. We therefore vacate the district court’s judgment dismissing the false arrest claim with prejudice, and remand with instructions to enter judgment without prejudice. See Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995) (per curiam).

We have considered Wewee’s remaining contentions and conclude that they lack merit.

Each party shall bear its 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.