Dimitar Dermendziev v. State of Washington , 624 F. App'x 454 ( 2015 )

FILED
NOT FOR PUBLICATION JUL 30 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DIMITAR DERMENDZIEV, No. 14-35012
Plaintiff - Appellant, D.C. No. 2:13-cv-00205-MJP
v.
MEMORANDUM*
STATE OF WASHINGTON; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, Chief Judge, Presiding
Submitted July 21, 2015**
Before: CANBY, BEA, and MURGUIA, Circuit Judges.
Washington state prisoner Dimitar Dermendziev appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging claims
related to an investigation by Child Protective Services and his subsequent criminal
conviction and incarceration. We have jurisdiction under 28 U.S.C. § 1291. We
*
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).
review de novo. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (dismissal
under 28 U.S.C. § 1915A); Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir.
1998) (order) (dismissal under 28 U.S.C. § 1915(e)(2)). We affirm in part, vacate
in part, and remand.
The district court properly dismissed without prejudice Dermendziev’s
claims relating to his conditions of confinement at Coyote Ridge Corrections
Center because venue was not proper in the Western District of Washington. See
28 U.S.C. §§ 1391(b), 1406(a); Myers v. Bennett Law Offices, 238 F.3d 1068, 1071
(9th Cir. 2001) (setting forth standard of review).
The district court properly dismissed as Heck-barred Counts 1 and 2 of
Dermendziev’s complaint because success on these claims would necessarily
imply the invalidity of his conviction, and Dermendziev failed to allege that his
conviction has been invalidated. See Heck v. Humphrey, 512 U.S. 477, 486-87
(1994) (holding that, “in order to recover damages for an allegedly unconstitutional
conviction or imprisonment, or for other harm caused by actions whose
unlawfulness would render a conviction or sentence invalid,” a 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
2 14-35012
habeas corpus”). However, because the district court dismissed these claims with
prejudice, we vacate the judgment as to these claims, and remand for entry of
dismissal without prejudice. See Trimble v. City of Santa Rosa, 49 F.3d 583, 585
(9th Cir. 1995) (per curiam) (dismissals under Heck are without prejudice).
The district court did not abuse its discretion by dismissing Dermendziev’s
complaint without leave to amend because Dermendziev sought to add new claims
based on unrelated facts against new defendants at another prison. See Lopez v.
Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (setting forth standard of review).
We reject Dermendziev’s contentions regarding his immunity from liability,
his alleged third-party standing rights to assert claims on behalf of his family, and
the district court’s alleged failure to consider his anti-SLAPP motion or to stay the
proceedings.
AFFIRMED in part, VACATED in part, and REMANDED.
3 14-35012