Douglas Burkeybile v. Zach Young;

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DOUGLAS BURKEYBILE,
Plaintiff - Appellant,
v.
ZACH YOUNG; et al.,
Defendants - Appellees.
No. 10-17432
D.C. No. 3:10-cv-00187-LRH-
RAM
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted October 25, 2011**
Before: TROTT, GOULD, and RAWLINSON, Circuit Judges.
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
FILED
NOV 01 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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10-17432 2
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 (1994). See Heck, 512 U.S. at 487
(“[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 Rosa, 49 F.3d 583, 585 (9th Cir.
1995) (per curiam) (dismissals under Heck are without prejudice).
Burkeybile’s remaining contentions are unpersuasive.
Burkeybile’s “Motion to Request Calendaring,” filed on December 10, 2010,
is denied as moot.
Burkeybile shall bear his own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.

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