Kassab v. San Diego Police Department

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUL 1 2011

MOLLY C. DWYER, CLERK
U .S. C O U R T OF APPE ALS

JOANDARK KASSAB, No. 09-56672

Plaintiff - Appellant, D.C. No. 3:07-cv-01299-MMA-
WMC
v.

SAN DIEGO POLICE DEPARTMENT; et MEMORANDUM *
al.,

Defendants - Appellees.

Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding

Submitted June 15, 2011 **

Before: CANBY, O’SCANNLAIN, and FISHER, Circuit Judges.

Joandark Kassab appeals pro se from the district court’s summary judgment

in her 42 U.S.C. § 1983 action arising from the search of her store. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo. Whitaker v. Garcetti,

*
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).
486 F.3d 572, 579 (9th Cir. 2007). We affirm.

The district court properly concluded that Kassab’s § 1983 claims were

Heck-barred. See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (a

constitutional claim that necessarily implies the invalidity of a conviction cannot

be brought under § 1983 unless the conviction has already been invalidated);

Szajer v. City of Los Angeles, 632 F.3d 607, 611 (9th Cir. 2011), petition for cert.

filed, 79 U.S.L.W. 3648 (U.S. Apr. 28, 2011) (No. 10-1343) (a claim alleging an

illegal search and seizure of evidence that was used to secure a conviction

necessarily implies the invalidity of that conviction).

We construe the judgment to be without prejudice. See Trimble v. City of

Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995) (per curiam) (stating that dismissals

under Heck are without prejudice).

Kassab’s remaining contentions are unpersuasive.

We do not consider issues not properly raised before the district court. See

Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).

All pending motions are denied.

AFFIRMED.

2 09-56672