NATHANIEL BANKS, Jr. v. Clark County Nevada, a governmental body or entity, PHILIP J. KOHN, individually

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATHANIEL BANKS, Jr.,
Plaintiff - Appellant,
v.
CLARK COUNTY NEVADA, a
governmental body or entity, PHILIP J.
KOHN, individually and also the agency
or office itself of CLARK COUNTY
PUBLIC DEFENDER; TIERRA D.
JONES, individually and as a Deputy
Clark County Public Defender; LAS
VEGAS JUSTICE COURT; and Doe
Individuals or Administrators 1-10, Roe
Entities 1-10, and Roe Institutions and
Agencies 11-20,
Defendants - Appellees.
No. 10-15970
D.C. No. 2:09-cv-02424-RCJ-LRL
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, Chief District Judge, Presiding
FILED
DEC 13 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
The Honorable William H. Stafford, Jr., Senior District Judge for the***
U.S. District Court for Northern Florida, sitting by designation.
2
Submitted December 9, 2011**
San Francisco, California
Before: TROTT and BEA, Circuit Judges, and STAFFORD, Senior District
Judge.***
Nathaniel Banks appeals the district court’s dismissal of his amended
complaint, pursuant to Fed. R. Civ. P. 12(b)(6). The complaint alleged 42 U.S.C. §
1983 and state law claims against various Nevada government defendants. We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
To recover for an allegedly unconstitutional conviction, “a § 1983 plaintiff
must prove that the conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by a state tribunal authorized to
make such determination, or called into question by a federal court’s issuance of a
writ of habeas corpus.” Heck v. Humphrey, 512 U.S. 477, 486–87 (1994). Banks’
§ 1983 claims allege actions that, if true, would necessarily invalidate his
conviction. But his conviction has not been overturned, expunged, or declared
invalid. For this reason, Banks’s § 1983 claims must be dismissed under Heck.

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Dismissals pursuant to Heck must be without prejudice to give the1
plaintiff the opportunity to re-file should he succeed in invalidating his conviction
or sentence. Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995).
3
Banks cites several cases as exceptions to Heck’s favorable termination
requirement, but his arguments are unconvincing. This case is closely analogous to
our decision in Guerrero v. Gates, where we stated that the § 1983 plaintiff
“cannot now use his failure timely to pursue habeas remedies as a shield against
the implications of Heck.” 442 F.3d 697, 705 (9th Cir. 2006) (internal quotation
marks omitted). Banks similarly cannot use his failure to timely appeal his
conviction as a shield against Heck. Banks’ state law claims were also properly
dismissed because they implied the invalidity of his conviction.1
Banks also appeals the denial of a motion for judicial notice of an
administrative order. The order proffers irrelevant factual evidence on a motion
which tests only the sufficiency of the allegations of the amended complaint. The
district court’s denial of the motion for judicial notice is affirmed.
AFFIRMED.

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