David Vandament v. Mark Duncan, et al, No. 08-35973 (9th Cir. 2010)

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FILED NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS OCT 29 2010 MOLLY C. DWYER, CLERK U .S. C O U R T OF APPE ALS FOR THE NINTH CIRCUIT DAVID P. VANDAMENT, Plaintiff - Appellant, No. 08-35973 D.C. No. 3:08-cv-05522-RJB v. MEMORANDUM * MARK DUNCAN, Commander; et al., Defendants - Appellees. Appeal from the United States District Court for the Western District of Washington Robert J. Bryan, District Judge, Presiding Submitted October 19, 2010 ** Before: O SCANNLAIN, TALLMAN, and BEA, Circuit Judges. David P. Vandament, a Washington state prisoner, appeals pro se from the district court s judgment dismissing without prejudice his 42 U.S.C. § 1983 action. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal * This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). under 28 U.S.C. § 1915(e)(2), Huftile v. Miccio-Fonseca, 410 F.3d 1136, 1138 (9th Cir. 2005), and may affirm on any ground supported by the record, O Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056, 1059 (9th Cir. 2007). We affirm. The district court properly dismissed without prejudice Vandament s claims based on arrests, searches and seizure. See Harvey v. Waldron, 210 F.3d 1008, 1013 (9th Cir. 2000), overruled on other grounds by Wallace v. Kato, 549 U.S. 384 (2007) ( a § 1983 action that would call into question the lawfulness of a plaintiff s conviction or confinement is not cognizable under Heck v. Humphrey, 512 U.S. 477 (1994)). Because amendment would be futile, the district court properly dismissed these claims without leave to amend. See Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). We are not persuaded that any remaining claims are cognizable or could be cured by amendment. See id. We do not consider arguments raised for the first time on appeal. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999). AFFIRMED. 2 08-35973

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