John Wesley SMITHART, Plaintiff-Appellant, v. Robert TOWERY; John A. Knight; Scott McGregor, Defendants-Appellees
Opinion
Opinion
Nevada state prisoner John Wesley Smit-hart appeals pro se the district court’s dismissal of his 42 U.S.C. § 1983 action. We have jurisdiction pursuant to 28 U.S.C. § 1291 . We review de novo, Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416 , 1421 (9th Cir.1989), cert. denied, 496 U.S. 937 , 110 S.Ct. 3217 , 110 L.Ed.2d 664 (1990), and affirm in part, vacate in part, and remand.
We are called upon to apply the rule of Heck v. Humphrey, - U.S. -, 114 S.Ct. 2364 , 129 L.Ed.2d 383 (1994), to an-action under 42 U.S.C. § 1983 which seeks damages for, inter aha, excessive foree applied during the course of an arrest which resulted in Smithart’s criminal conviction. Heck precludes a section 1983 claim based on actions which would “render a conviction or sentence invalid” where that conviction has not been reversed, expunged or called into question by issuance of a writ of habeas corpus. Heck , - U.S. at -, 114 S.Ct. at 2372 . Heck , in other words, says that if a criminal conviction arising out of the same facts stands and is fundamentally inconsistent with the unlawful behavior for which section 1983 damages are sought, the 1983 action must be dismissed.