Nathaniel Banks, Jr. v. Philip Kohn

FILED
NOT FOR PUBLICATION DEC 13 2011

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

NATHANIEL BANKS, Jr., No. 10-15970

Plaintiff - Appellant, D.C. No. 2:09-cv-02424-RCJ-LRL

v.
MEMORANDUM *
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.

Appeal from the United States District Court
for the District of Nevada
Robert Clive Jones, Chief District Judge, Presiding

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
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.

**
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
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.

1
Dismissals pursuant to Heck must be without prejudice to give the
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).