                                                                              FILED
                           NOT FOR PUBLICATION                                 JAN 17 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT

CHICO SCRAP METAL, INC., a                       No. 11-17912
California corporation; and GEORGE
SCOTT, SR., individually and as Trustee          D.C. No. 2:11-cv-01201-JAM-
of the George W. Scott, Sr. Revocable            CMK
Trust Inter Vivos Trust dated September
25, 1995,
                                                 MEMORANDUM*
              Plaintiffs - Appellants,

  v.

LEONARD E. ROBINSON, in his official
capacity as Acting Director of the
California Department of Toxic
Substances Control; et al.,

              Defendants - Appellees.


                   Appeal from the United States District Court
                       for the Eastern District of California
                    John A. Mendez, District Judge, Presiding

                           Submitted January 15, 2014**
                             San Francisco, California



        *
          This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
          The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
Before: GRABER and NGUYEN, Circuit Judges, and DEARIE,*** Senior District
Judge.

      Plaintiffs Chico Scrap Metal, Inc., and George W. Scott, Sr., filed this action

under 42 U.S.C. § 1983 against several defendants associated with the California

Department of Toxic Substances Control and the District Attorney of Butte

County. Plaintiffs seek to enjoin the enforcement of certain regulatory orders

relating to the clean up of hazardous wastes at Plaintiffs’ scrap metal recycling

facilities, plus a declaration that those cleanup orders are invalid, and they seek

monetary damages against the individual defendants. The district court dismissed

the action with prejudice on the ground that it is barred by Heck v. Humphrey, 512

U.S. 477 (1994). Plaintiffs timely appeal. We affirm the dismissal but remand for

entry of a judgment of dismissal without prejudice.

      Plaintiffs’ § 1983 claims are barred by Heck because a judgment in their

favor, holding that the cleanup orders were imposed improperly and that the

prosecution was unlawful, would necessarily imply the invalidity of Plaintiffs’

state court convictions. See Szajer v. City of Los Angeles, 632 F.3d 607, 612 (9th

Cir. 2011) (holding that Heck barred a § 1983 challenge where a decision that the

undercover operation, which produced the only evidence for finding probable


        ***
            The Honorable Raymond J. Dearie, Senior United States District Judge
for the Eastern District of New York, sitting by designation.
                                           2
cause, was unlawful would necessarily imply the invalidity of the convictions

resulting from the undercover operation); Smithart v. Towery, 79 F.3d 951, 952

(9th Cir. 1996) (per curiam) (applying Heck to a § 1983 claim for unlawful

prosecution in the context of a plea bargain). The regulatory cleanup orders and

the criminal convictions both pertain to the same incidents in 2007.

      In addition, Heck bars the claims because Plaintiffs were sentenced to

compliance with the challenged cleanup orders as a condition of their probation in

the criminal case, as specifically directed by the state court in its criminal

judgment. Thus, a decision in Plaintiffs’ favor in this civil action, holding that they

need not comply with the cleanup orders, would necessarily invalidate the criminal

sentence. See Heck, 512 U.S. at 486–87 (holding that a claim invalidating the

court’s judgment in a criminal case is barred). Indeed, many of Plaintiffs’ disputes

are the subject of state court litigation seeking to revoke their probation in the

criminal case, further demonstrating the Heck bar.

      The district court erred, though, in dismissing the action with prejudice. We

held in Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995) (per

curiam), that Heck-barred § 1983 claims must be dismissed without prejudice so

that the plaintiff may "reassert his claims if he ever succeeds in invalidating his

conviction."


                                           3
      AFFIRMED; REMANDED for entry of a judgment of dismissal without

prejudice.




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