                                                                           FILED
                             NOT FOR PUBLICATION                            JUL 25 2011

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




                             FOR THE NINTH CIRCUIT



TODD KENNETH HOROB,                              No. 10-35622

               Plaintiff - Appellant,            D.C. No. 1:10-cv-00037-RFC

  v.
                                                 MEMORANDUM *
UNITED STATES OF AMERICA,

               Defendant - Appellee.



                    Appeal from the United States District Court
                            for the District of Montana
                     Richard F. Cebull, Chief Judge, Presiding

                              Submitted July 12, 2011 **

Before:        SCHROEDER, ALARCÓN, and LEAVY, Circuit Judges.

       Todd Kenneth Horob, a federal prisoner, appeals pro se from the district

court’s judgment dismissing his action brought under Bivens v. Six Unknown

Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), challenging the validity

of his conviction and the conditions of his confinement. We have jurisdiction

          *
             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).
under 28 U.S.C. § 1291. We review de novo a dismissal under 28 U.S.C. § 1915A.

Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000). We affirm.

      The district court properly dismissed without prejudice Horob’s action

because his allegations against the United States regarding his trial necessarily

imply the invalidity of his conviction, and Horob has not shown that his conviction

has been invalidated. See Heck v. Humphrey, 512 U.S. 477, 487 (1994) (§ 1983

complaint in which “a judgment in favor of the plaintiff would necessarily imply

the invalidity of his conviction or sentence . . . must be dismissed unless the

plaintiff can demonstrate that the conviction or sentence has already been

invalidated”); Martin v. Sias, 88 F.3d 774, 775 (9th Cir. 1996) (applying Heck to

actions brought against federal actors).

      We do not consider arguments, including those regarding access to the law

library, made for the first time on appeal. See Smith v. Marsh, 194 F.3d 1045,

1052 (9th Cir. 1999). Issues not raised in the opening brief, including those

regarding conditions of confinement, are deemed waived. Id.

      Horob’s remaining contentions are unpersuasive.

      AFFIRMED.




                                           2                                      10-35622
