Brown v. Rooney

Full title: Victor Lamont BROWN; et al., Plaintiffs-Appellants, v. Kevin P. ROONEY; et…

Court: United States Court of Appeals, Ninth Circuit

Date published: Nov 13, 2001

23 F. App'x 678 (9th Cir. 2001)

Opinion

23 Fed.Appx. 678 (9th Cir. 2001) Victor Lamont BROWN; et al., Plaintiffs-Appellants, v. Kevin P. ROONEY; et al., Defendants-Appellees. No. 00-17335. D.C. No. CV-00-06892-REC. United States Court of Appeals, Ninth Circuit. November 13, 2001

Submitted November 5, 2001 ^*.

* The panel unanimously finds this case suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2). Accordingly, Appellants' motion for oral argument is denied.

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Federal prisoner and his mother appealed pro se order of the United States District Court for the Eastern District of California, Robert E. Coyle, J., dismissing their Bivens complaint alleging civil rights violations. The Court of Appeals held that prisoner could not obtain relief unless conviction was first reversed.

Affirmed.

Appeal from the United States District Court for the Eastern District of California Robert E. Coyle, District Judge, Presiding.

Before KLEINFELD, McKEOWN, and FISHER, Circuit Judges.

MEMORANDUM ^**

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

Victor Lamont Brown, a federal prisoner, and his mother, Joyce Brown Contu, appeal pro se the district court's order dismissing their complaint alleging civil rights violations. We have jurisdiction pursuant to 28 U.S.C. § 1291, and after de novo review, see Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295 (9th Cir.1998), we affirm.

The district court properly dismissed Appellants' action because it challenged the indictment underlying Brown's conviction, and a favorable judgment would necessarily imply the invalidity of Brown's confinement. See Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). Thus, prior to obtaining

Page 679.

relief based upon the alleged constitutional violations, Brown's conviction must be reversed through a direct appeal or writ of habeas corpus. See Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994); Martin v. Sias, 88 F.3d 774, 775 (9th Cir.1996) (order) (applying Heck rationale to Bivens action).

We construe the judgment as a dismissal without prejudice. See Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir.1995) (per curiam).

We reject Appellants' contention that Judge Coyle should have recused himself.

AFFIRMED.