                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 22 2010

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




                             FOR THE NINTH CIRCUIT



 MATTHEW J. MONACO,                               No. 08-55364

               Plaintiff - Appellant,             D.C. No. 2:07-cv-06536-CAS-
                                                  FMO
   v.

 T. MOBERG; et al.,                               MEMORANDUM *

               Defendants - Appellees.



                     Appeal from the United States District Court
                         for the Central District of California
                     Christina A. Snyder, District Judge, Presiding

                             Submitted January 11, 2010 **


Before:        BEEZER, TROTT, and BYBEE, Circuit Judges.

        Matthew J. Monaco, a California state prisoner, appeals pro se from the

district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging that a



          *
             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).

tk/Research
prison guard attacked him. We have jurisdiction under 28 U.S.C. § 1291. We

review de novo a dismissal under 28 U.S.C. § 1915(e). Barren v. Harrington, 152

F.3d 1193, 1194 (9th Cir. 1998) (order). We affirm in part, vacate in part, and

remand.

        The district court properly dismissed Monaco’s action without leave to

amend because judgment in his favor would necessarily imply the invalidity of a

previous conviction and Monaco failed to allege that the conviction had been

invalidated. See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994); see also Cato v.

United States, 70 F.3d 1103, 1106 (9th Cir. 1995) (affirming dismissal without

leave to amend where the complaint’s deficiencies could not be cured by further

amendment). However, the dismissal should have been without prejudice. See

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

vacate the judgment and remand for the limited purpose of entering a dismissal

without prejudice.

        Monaco shall bear his own costs on appeal.

        AFFIRMED in part, VACATED in part, and REMANDED.




tk/Research                               2                                      08-55364
