NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS APR 26 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT ANTHONY K. ANDERSON, No. 22-16856

Plaintiff-Appellant, D.C. No. 2:22-cv-00734-GMN-VCF v.

MEMORANDUM* STATE OF NEVADA; ATTORNEY GENERAL FOR THE STATE OF NEVADA,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Nevada

Gloria M. Navarro, District Judge, Presiding

Submitted April 17, 2023** Before: CLIFTON, R. NELSON, and BRESS, Circuit Judges.

Nevada state prisoner Anthony K. Anderson appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging constitutional claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a

*

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). dismissal under Heck v. Humphrey, 512 U.S. 477 (1994). Whitaker v. Garcetti, 486 F.3d 572, 579 (9th Cir. 2007). We affirm in part, vacate in part, and remand.

The district court properly dismissed Anderson’s action as Heck-barred because success on his claims would necessarily imply the invalidity of his conviction or sentence, and Anderson has not demonstrated that his conviction has been invalidated. See Heck, 512 U.S. at 486-87 (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”); Thornton v. Brown, 757 F.3d 834, 842 (9th Cir. 2013) (“[P]risoner may challenge the ‘fact’ or ‘duration’ of imprisonment only through a habeas proceeding.” (citations omitted)). We affirm the dismissal, but remand to the district court with instructions to amend the judgment to reflect that the dismissal is without prejudice. See Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995).

Based upon Anderson’s litigation history, the magistrate judge recommended that Anderson be ordered to show cause why he should not be deemed a vexatious litigant. Rather than issue an order to show cause, the district court declared Anderson a vexatious litigant and entered a pre-filing review order against him. We vacate the district court’s November 23, 2022 order to the extent that it deems Anderson a vexatious litigant and imposes a pre-filing restriction, and

2 22-16856 remand to the district court to give Anderson an opportunity to show cause why he should not be declared a vexatious litigant. See Ringgold-Lockhart v. County of Los Angeles, 761 F.3d 1057, 1062 (9th Cir. 2014) (setting forth standard of review and requirements for pre-filing review orders).

Anderson’s motion for injunctive relief (Docket Entry No. 3) and motion for appointment of pro bono counsel (Docket Entry No. 4) are denied.

AFFIRMED in part; VACATED in part; and REMANDED with instructions to amend the judgment.

3 22-16856