FILED
NOT FOR PUBLICATION DEC 14 2009
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
DANIEL LEROY TURNER, No. 08-35830
Plaintiff - Appellant, D.C. No. 3:08-cv-00740-AC
v.
MEMORANDUM *
BERNIE GIUSTO, Sheriff of Multnomah
County,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Oregon
Garr M. King, District Judge, Presiding
Submitted November 17, 2009 **
Before: ALARCÓN, TROTT, and TASHIMA, Circuit Judges.
Daniel Leroy Turner appeals pro se from the district court’s judgment
dismissing his 42 U.S.C. § 1983 action alleging improper delay in his arraignment
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
LSS/Research
and a violation of his right to a speedy trial. We have jurisdiction pursuant to 28
U.S.C. § 1291. We review de novo, Barren v. Harrington, 152 F.3d 1193, 1194
(9th Cir. 1998) (order), and we affirm in part, vacate in part, and remand.
Because a judgment in Turner’s favor would necessarily imply the invalidity
of his conviction, the district court properly dismissed the action. See Heck v.
Humphrey, 512 U.S. 477, 486–87 (1994). However, the dismissal under Heck
should have been without prejudice. See Trimble v. City of Santa Rosa, 49 F.3d
583, 585 (9th Cir. 1995).
Accordingly, we remand to the district court for the limited purpose of
entering dismissal without prejudice.
Turner’s remaining contentions are unpersuasive.
Turner shall bear his own costs on appeal.
AFFIRMED in part, VACATED in part, and REMANDED.
LSS/Research 2 08-35830