Matthew Monaco v. T Moberg

MEMORANDUM ** Matthew J. Monaco, a California state prisoner, appeals pro se from the district *867 court’s judgment dismissing his 42 U.S.C. § 1983 action alleging that a prison guard attacked him. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal under 28 U.S.C. § 1915(e). Barren v. Harrington, 152 F.Sd 1193, 1194 (9th Cir.1998) (order). We affirm in part, vacate in part, and remand. The district court properly dismissed Monaco’s action without leave to amend because judgment in his favor would necessarily imply the invalidity of a previous conviction and Monaco failed to allege that the conviction had been invalidated. See Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994); see also Cato v. United States, 70 F.3d 1103, 1106 (9th Cir.1995) (affirming dismissal without leave to amend where the complaint’s deficiencies could not be cured by further amendment). However, the dismissal should have been without prejudice. See Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir.1995). Accordingly, we vacate the judgment and remand for the limited purpose of entering a dismissal without prejudice. Monaco shall bear his own costs on appeal. AFFIRMED in part, VACATED in part, and REMANDED. Footnotes [**] This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.