Opinion
No. 10-15970 D.C. No. 2:09-cv-02424-RCJ-LRL
12-13-2011
NATHANIEL BANKS, Jr., Plaintiff - Appellant, v. CLARK COUNTY NEVADA, a governmental body or entity, PHILIP J. KOHN, individually and also the agency or office itself of CLARK COUNTY PUBLIC DEFENDER; TIERRA D. JONES, individually and as a Deputy Clark County Public Defender; LAS VEGAS JUSTICE COURT; and Doe Individuals or Administrators 1-10, Roe Entities 1-10, and Roe Institutions and Agencies 11-20, Defendants - Appellees.
NOT FOR PUBLICATION
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, Chief District Judge, Presiding
Submitted December 9, 2011
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
San Francisco, California
Before: TROTT and BEA, Circuit Judges, and STAFFORD, Senior District Judge.
The Honorable William H. Stafford, Jr., Senior District Judge for the U.S. District Court for Northern Florida, sitting by designation.
Nathaniel Banks appeals the district court's dismissal of his amended complaint, pursuant to Fed. R. Civ. P. 12(b)(6). The complaint alleged 42 U.S.C. § 1983 and state law claims against various Nevada government defendants. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
To recover for an allegedly unconstitutional conviction, "a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Banks' § 1983 claims allege actions that, if true, would necessarily invalidate his conviction. But his conviction has not been overturned, expunged, or declared invalid. For this reason, Banks's § 1983 claims must be dismissed under Heck.
Banks cites several cases as exceptions to Heck's favorable termination requirement, but his arguments are unconvincing. This case is closely analogous to our decision in Guerrero v. Gates, where we stated that the § 1983 plaintiff "cannot now use his failure timely to pursue habeas remedies as a shield against the implications of Heck." 442 F.3d 697, 705 (9th Cir. 2006) (internal quotation marks omitted). Banks similarly cannot use his failure to timely appeal his conviction as a shield against Heck. Banks' state law claims were also properly dismissed because they implied the invalidity of his conviction.
Dismissals pursuant to Heck must be without prejudice to give the plaintiff the opportunity to re-file should he succeed in invalidating his conviction or sentence. Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995).
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Banks also appeals the denial of a motion for judicial notice of an administrative order. The order proffers irrelevant factual evidence on a motion which tests only the sufficiency of the allegations of the amended complaint. The district court's denial of the motion for judicial notice is affirmed.
AFFIRMED.