Joe Bone-club, Plaintiff-appellant, v. Whatcom Public Defender's Office; Lynden Police Dept.,defendants-appellees, 70 F.3d 1277 (9th Cir. 1995)

MEMORANDUM^** 

Joe Bone-Club, a Washington state prisoner, appeals pro se the district court's dismissal without prejudice of his 42 U.S.C. § 1983 action alleging constitutional errors related to his state conviction. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we review de novo the district court's dismissal for failure to state a claim, see Buckey v. County of Los Angeles, 968 F.2d 791, 793-94 (9th Cir.), cert denied, 113 S. Ct. 599 (1992). We affirm.

Because Bone-Club has not demonstrated that his conviction has been invalidated by a state or federal court, his 42 U.S.C. § 1983 claims for damages caused by the allegedly unconstitutional prosecution and conviction are not yet cognizable. See Heck v. Humphrey, 114 S. Ct. 2364, 2372 (1994); Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995) (per curiam). Therefore, the district court dismissal without prejudice of Bone-Club's claims for damages was proper. See Trimble, 49 F.3d at 585.

In the district court and on appeal, Bone-Club concedes that he is still attacking his conviction in the state courts. Therefore, the district court's decision not to treat Bone-Club's action as a petition for a writ of habeas corpus was also proper. See id. at 586.

AFFIRMED.