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 2011-09

Robert Stewart, Jr. v. Joseph Welty , 450 F. App'x 684 ( 2011 )


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  •                                                                            FILED
NOT FOR PUBLICATION                             SEP 29 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
ROBERT WILSON STEWART, Jr., AKA                  No. 10-16576
Robert Stewart, AKA Robert W. Stewart,
D.C. No. 2:10-cv-01214-SRB-
Plaintiff - Appellant,             ECV
v.
MEMORANDUM *
JOSEPH WELTY, Asst. U.S. Attorney; et
al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
Susan R. Bolton, District Judge, Presiding
**
Submitted September 27, 2011
Before: HAWKINS, SILVERMAN and W. FLETCHER, Circuit Judges.
Federal prisoner Robert Stewart appeals pro se from the district court's
judgment dismissing his action brought under Bivens v. Six Unknown Agents of
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Fed. Bureau of Narcotics,
    403 U.S. 388
     (1971), alleging that his civil rights were
violated during his criminal proceedings. We have jurisdiction under
    28 U.S.C. § 1291
    . We review de novo a dismissal under 28 U.S.C. § 1915A. Resnick v. Hayes,
    213 F.3d 443
    , 447 (9th Cir. 2000). We affirm.
The district court properly dismissed Stewart’s action because his allegations
against the United States regarding his criminal proceedings necessarily imply the
invalidity of his conviction, and Stewart has not shown that his conviction has been
invalidated. See Heck v. Humphrey,
    512 U.S. 477
    , 487 (1994) (§ 1983 complaint
in which “a judgment in favor of the plaintiff would necessarily imply the
invalidity of his conviction or sentence . . . must be dismissed unless the plaintiff
can demonstrate that the conviction or sentence has already been invalidated”);
Martin v. Sias,
    88 F.3d 774
    , 775 (9th Cir. 1996) (applying Heck to actions brought
against federal actors). 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).
AFFIRMED.