                                                                           FILED
                             NOT FOR PUBLICATION                            OCT 16 2012

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




                             FOR THE NINTH CIRCUIT



TERRENCE MATTHEWS,                               No. 11-35553

               Plaintiff - Appellant,            D.C. No. 1:11-cv-00245-MHW

  v.
                                                 MEMORANDUM *
OLIVIA CRAVEN; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                              for the District of Idaho
                  Mikel H. Williams, Magistrate Judge, Presiding **

                             Submitted October 9, 2012 ***

Before:        RAWLINSON, MURGUIA, and WATFORD, Circuit Judges.

       Terrence Matthews, an Idaho state prisoner, appeals pro se from the district

court’s judgment dismissing his 42 U.S.C. § 1983 action alleging constitutional


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
            Matthews consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).

       ***   The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
violations in connection with his parole revocation and subsequent denial of

parole. We have jurisdiction 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 in part, vacate in part, and remand.

      The district court properly dismissed the action because Matthews’s claims

are premised on his “actual innocence” and success on the merits of these claims

would necessarily imply the invalidity of his confinement. See Heck v. Humphrey,

512 U.S. 477, 486-87 (1994). However, because the district court dismissed the

action with prejudice, we vacate the judgment in part, 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) (dismissals under Heck are without prejudice).

      AFFIRMED in part, VACATED in part, and REMANDED.




                                         2                                     11-35553
