70 F. 3d 1277 - Bone-Club v. Whatcom Public Defender's Office

70 F3d 1277 Bone-Club v. Whatcom Public Defender's Office

70 F.3d 1277

Joe BONE-CLUB, Plaintiff-Appellant,
v.
WHATCOM PUBLIC DEFENDER'S OFFICE; Lynden Police Dept.,
Defendants-Appellees.

No. 94-35774.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 20, 1995.*
Decided Nov. 24, 1995.

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Before: PREGERSON, NORRIS, and REINHARDT, Circuit Judges.

1

MEMORANDUM**

2

Joe Bone-Club, a Washington state prisoner, appeals pro se the district court's dismissal without prejudice of his 42 U.S.C. Sec. 1983 action alleging constitutional errors related to his state conviction. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291, and we review de novo the district court's dismissal for failure to state a claim, see Buckey v. County of Los Angeles, 968 F.2d 791, 793-94 (9th Cir.), cert denied, 113 S.Ct. 599 (1992). We affirm.

3

Because Bone-Club has not demonstrated that his conviction has been invalidated by a state or federal court, his 42 U.S.C. Sec. 1983 claims for damages caused by the allegedly unconstitutional prosecution and conviction are not yet cognizable. See Heck v. Humphrey, 114 S.Ct. 2364, 2372 (1994); Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir.1995) (per curiam). Therefore, the district court dismissal without prejudice of Bone-Club's claims for damages was proper. See Trimble, 49 F.3d at 585.

4

In the district court and on appeal, Bone-Club concedes that he is still attacking his conviction in the state courts. Therefore, the district court's decision not to treat Bone-Club's action as a petition for a writ of habeas corpus was also proper. See id. at 586.

5

AFFIRMED.

*

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

**

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