Hinkson v. Hines , 101 F. App'x 755 ( 2004 )

MEMORANDUM ^**

David R. Hinkson appeals pro se from the district court’s judgment dismissing his Bivens action alleging defendants violated his constitutional rights in the course of the investigation and subsequent criminal prosecution of his income tax violations. We have jurisdiction under 28 U.S.C. § 1291. We review de novo. Mabe v. San Bernardino County Dep’t of Pub. Soc. Sews., 237 F.3d 1101, 1106 (9th Cir.2001) (dismissal based on immunity); Libas Ltd. v. Carillo, 329 F.3d 1128, 1130 (9th Cir. 2003) (dismissal of Bivens action for failure to state a claim). We affirm.

The district court properly dismissed the action against the United States on sovereign immunity grounds. See Gilbert v. DaGrossa, 756 F.2d 1455, 1458 (9th Cir.1985). Likewise, sovereign immunity barred the claims against Internal Revenue Service (“IRS”) agents Morgan and Hines in their official capacities. See id.

The district court properly determined that defendant Albers was not liable for producing Hinkson’s tax documents because he did so in good faith reliance on an official IRS summons. See 26 U.S.C. § 7609(i)(3).

The district court also correctly determined that Assistant United States Attorney Cook was entitled to prosecutorial immunity for her alleged actions. See Herb Hallman Chevrolet, Inc. v. Nash-Holmes, 169 F.3d 636, 643 (9th Cir.1999).

Finally, the district court properly dismissed the claims against defendants Hines and Morgan in their individual capacities pursuant to Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), because a favorable outcome would undermine the criminal charges pending against Hinkson. See Harvey v. Waldron, 210 F.3d 1008, 1014 (9th Cir.2000). We construe the judgment as to these defendants as a dismissal without prejudice. See Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir.1995) (per curiam).

Hinkson’s remaining contentions lack merit.

AFFIRMED.

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.