Gary Eugene Kukes, Plaintiff-appellant, v. Candance J. Grubbs; Carole J. Caldwell; L. Gerald,defendants-appellees, 86 F.3d 1162 (9th Cir. 1996)

MEMORANDUM^** 

California state prisoner Gary Eugene Kukes appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 action for failure to state a claim. Kukes alleged that the Butte County clerk-recorder, a court reporter, and the Oroville Justice court clerk altered and removed transcripts from the record of his 1986 trial that led to his unlawful conviction of second degree murder. Kukes sought $2.5 million in damages from each defendant. We have jurisdiction pursuant 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). We 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 Kukes' allegations necessarily imply the invalidity of his conviction, and he has not shown that his conviction has been overturned, or otherwise invalidated, Kukes 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.