                                                                           FILED
                            NOT FOR PUBLICATION                             NOV 02 2010

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




                            FOR THE NINTH CIRCUIT



DAVID LEE SIMMONS,                               No. 09-35606

              Plaintiff - Appellant,             D.C. No. 3:08-cv-00343-PK

  v.
                                                 MEMORANDUM *
PETER DEUEL; STEVEN LERICHE;
JOHN R. KROGER; DARIN TWEEDT;
STEPHANIE TUTTLE,

              Defendants - Appellees.



                   Appeal from the United States District Court
                            for the District of Oregon
                   Michael W. Mosman, District Judge, Presiding

                        Argued and Submitted July 14, 2010
                                Portland, Oregon

Before: PREGERSON, WARDLAW and RAWLINSON, Circuit Judges.

       Appellant David Lee Simmons challenges the district court’s dismissal of

his Complaint against Appellees Peter Deuel, Steven Leriche, John Kroger, Darin

Tweedt and Stephanie Tuttle.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1. The district court did not err in dismissing Simmons’s claims asserted

against Leriche for continuing to prosecute him on charges that had not been

returned by a grand jury. We have held that “[a] prosecutor is entitled to absolute

immunity for quasi-judicial actions taken within the scope of his authority.”

McCarthy v. Mayo, 827 F.2d 1310, 1314 (9th Cir. 1987), as amended (citations

omitted) (emphasis added). “Authority does not rest on technicalities of local law;

the issue is whether the prosecutor is arguably empowered to perform the act.” Id.

(citation and parentheses omitted). Because Leriche was acting within the scope of

his authority, he was entitled to absolute immunity.




      2. The district court also properly dismissed Simmons’s claims pertaining to

the second prosecution. We have previously noted that the Supreme Court’s

decision in Heck v. Humphrey, 512 U.S. 477 (1994) precludes a plaintiff from

obtaining relief “in a [42 U.S.C.] § 1983 suit if a judgment in favor of the plaintiff

would necessarily imply the invalidity of his conviction or sentence unless the

plaintiff can demonstrate that the conviction or sentence has already been

invalidated.” Guerrero v. Gates, 442 F.3d 697, 703 (9th Cir. 2006) (footnote

reference and alteration omitted). Simmons pled guilty to, and was ultimately

convicted of, a misdemeanor as a result of the second prosecution. Because


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Simmons has failed to demonstrate that his misdemeanor conviction has been

invalidated, he is precluded from obtaining relief on his claims. See id.

      AFFIRMED.




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