                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                          SEP 22 2016
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT



 MONTE CATO LITTLE COYOTE, Jr.,                  No. 15-35820

                 Plaintiff-Appellant,            D.C. No. 1:15-cv-00076-SPW

   v.
                                                 MEMORANDUM*
 LORI ANNE HARPER SUEK; et al.,

                 Defendants-Appellees.

                   Appeal from the United States District Court
                           for the District of Montana
                    Susan P. Watters, District Judge, Presiding

                          Submitted September 13, 2016**

Before:      HAWKINS, N.R. SMITH, and HURWITZ, Circuit Judges.

   Federal prisoner Monte Cato Little Coyote, Jr., appeals pro se from the district

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

Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging

constitutional violations arising out of his criminal conviction. We have

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
jurisdiction under 28 U.S.C. § 1291. We review de novo. Whitaker v. Garcetti,

486 F.3d 572, 579 (9th Cir. 2007) (dismissal under Heck v. Humphrey, 512 U.S.

477 (1994)); Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (dismissal for

failure to state a claim under 28 U.S.C. § 1915A). We affirm.

   The district court properly dismissed Little Coyote’s action because Little

Coyote’s conviction has not been invalidated and his habeas petition was denied.

See Heck, 512 U.S. at 487 (if “a judgment in favor of the plaintiff would

necessarily imply the invalidity of his conviction or sentence . . . the complaint

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) (order) (applying the rationale of Heck to Bivens actions). Because the

district court did not specify whether the dismissal of Little Coyote’s action was

with or without prejudice, we treat the dismissal as being without prejudice. See

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

Heck are without prejudice).

   The district court did not abuse its discretion in dismissing Little Coyote’s

complaint without leave to amend. See Cervantes v. Countrywide Home Loans,

Inc., 656 F.3d 1034, 1041 (9th Cir. 2011) (setting forth standard of review and

                                          2                                     15-35820
explaining that “a district court may dismiss without leave where . . . amendment

would be futile”).

   The district court did not abuse its discretion by refusing to recuse the

magistrate judge because Little Coyote failed to establish any ground for recusal.

See United States v. Johnson, 610 F.3d 1138, 1147 (9th Cir. 2010) (setting forth

standard of review and grounds for recusal).

   We do not consider arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

   We lack jurisdiction to consider the district court’s order denying Little

Coyote’s motion to alter or amend the judgment because Little Coyote failed to

amend his notice of appeal or file a separate notice of appeal. See Whitaker, 486

F.3d at 585.

   AFFIRMED.




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