122 F3d 1072 Mendenhall v. State

122 F.3d 1072

David L. MENDENHALL, Plaintiff-Appellant,
v.
STATE of Idaho; County of Lewis; City of Kamiah,
Transportation Department; John Does, 1-10,
Defendants-Appellees.

No. 96-35645.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 25, 1997.**
Decided Aug. 28, 1997.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Appeal from the United States District Court for the District of Idaho Edward J. Lodge, District Judge, Presiding

MEMORANDUM*

Before: SCHROEDER, FERNANDEZ, and RYMER, Circuit Judges.


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1

David Mendenhall appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 action alleging constitutional violations arising from his prosecution and conviction for driving under the influence and operating a vehicle without driving privileges. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm in part, vacate in part, and remand.

2

As a threshold matter, we must determine whether Mendenhall's claims are barred by Heck v. Humphrey, 512 U.S. 477, 487 (1994). Heck precludes a claim under § 1983 if "a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence," unless the conviction or sentence has previously been invalidated. See Edwards v. Balisok, 117 S.Ct. 1584, 1585 (1997).

3

Mendenhall's claims that the convicting court lacked jurisdiction, and that the suspension of his licence and later conviction constituted double jeopardy both implicate the validity of his conviction.1 See id. at * 3. Accordingly, we remand for the district court to dismiss this case without prejudice. See Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir.1995).2

4

Costs are awarded to appellees.

5

AFFIRMED in part, VACATED in part, and REMANDED.

**

The panel unanimously finds this case suitable for decision without oral argument. Fed. R.App. P. 34(a); 9th Cir. R. 34-4. Accordingly, Mendenhall's request for oral argument is denied

*

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


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1

We decline to address Mendenhall's remaining contentions, as there is no reason to depart from the general rule that we will not consider claims raised for the first time on appeal. See Brogan v. San Mateo County, 901 F.2d 762, 765 (9th Cir.1990)

2

Appellees Lewis County and City of Kamiah's request for attorney's fees pursuant to 42 U.S.C. § 1988 is denied. See Vernon v. City of Los Angeles, 27 F.3d 1385, 1402 (9th Cir.1994)