Lonnie Ray Carter, Plaintiff-appellant, v. Mary Ellen Ramey; Dennis O'leary, Deputy Prosecutingattorney, Defendants-appellees, 60 F.3d 832 (9th Cir. 1995)

MEMORANDUM^** 

Washington state prisoner Lonnie R. Carter appeals pro se the district court's dismissal as frivolous of his 42 U.S.C. § 1983 action. Carter contends that his defense counsel and King County violated his constitutional rights at his criminal trial through ineffective assistance and malicious prosection. We have jursidiction purusant to 28 U.S.C. § 1291. We construe the dismissal to be without prejudice, see Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995), and affirm.

A prisoner's civil rights claim for damages attributable to an allegedly unconstitutional conviction or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid does not accrue until his sentence or fact of imprisonment has been invalidated. Heck v. Humphrey, 114 S. Ct. 2364, 2373 (1994); Trimble, 49 F.3d at 585. Because Carter's allegations necessarily imply the invalidity of his conviction, and he has not shown that his conviction has been overturned, or otherwise invalidated, Carter has no damages claim at this time. See Heck, 114 S. Ct. at 2373; Trimble, 49 F.3d at 585. Accordingly, the district court properly dismissed this action as a matter of law. See Heck, 114 S. Ct. at 2372.

AFFIRMED.