Douglas Burkeybile v. Zach Young

MEMORANDUM

Douglas Burkeybile, a Nevada state prisoner, appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action challenging his criminal conviction and sentence. We have jurisdiction under 28 U.S.C. § 1291 . We review de novo a dismissal under 28 U.S.C. § 1915 (e)(2)(B)(ii) for failure to state a claim, Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.1998) (order), and we affirm in part, vacate in part, and remand.

The district court properly dismissed the action because Burkeybile’s claims are barred by Heck v. Humphrey, 512 U.S. 477 , 114 S.Ct. 2364 , 129 L.Ed.2d 383 (1994). See Heck, 512 U.S. at 487 , 114 S.Ct. 2364 (“[W]hen a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.”). However, we vacate the judgment to the extent that the court dismissed the action with prejudice, and remand for entry of dismissal without prejudice. See Trimble v. City of Santa…