                                                                           FILED
                             NOT FOR PUBLICATION                            MAR 30 2010

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



 ANDRE BRIGHAM YOUNG,                            No. 08-35640

               Plaintiff - Appellant,            D.C. No. 2:06-cv-01687-JCC

   v.
                                                 MEMORANDUM *
 STATE OF WASHINGTON; et al.,

               Defendants - Appellees.



                     Appeal from the United States District Court
                       for the Western District of Washington
                    John C. Coughenour, District Judge, Presiding

                              Submitted March 16, 2010 **


Before:        SCHROEDER, PREGERSON, and RAWLINSON, Circuit Judges.

        Andre Brigham Young, a former Washington state prisoner and current civil

detainee, appeals pro se from the district court’s judgment dismissing his 42 U.S.C.



          *
             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).

JK/Research
§ 1983 action as barred by Heck v. Humphrey, 512 U.S. 477 (1994). We have

jurisdiction under 28 U.S.C. § 1291. We review de novo. Whitaker v. Garcetti,

486 F.3d 572, 579 (9th Cir. 2007). We affirm in part, vacate in part, and remand.

       The district court properly dismissed the action as Heck-barred because a

judgment in Young’s favor would necessarily imply the invalidity of his

conviction, and Young failed to allege that his conviction has been invalidated.

See Heck, 512 U.S. at 486-87; Huftile v. Miccio-Fonseca, 410 F.3d 1136, 1139-40

(9th Cir. 2005) (applying Heck to civil detainees). However, we vacate the

judgment to the extent that it dismissed the action with prejudice, 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) (stating that dismissals under Heck are

without prejudice).

       We do not consider arguments raised for the first time on appeal. See Smith

v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).

       The parties shall bear their own costs on appeal.

       AFFIRMED in part, VACATED in part, and REMANDED.




JK/Research                               2                                     08-35640
