
    Nathan Kevin TURNER, Plaintiff-Appellant, v. Bonnie DUMANIS, District Attorney of the County of San Diego; et al., Defendants-Appellees.
    No. 09-55524.
    United States Court of Appeals, Ninth Circuit.
    Submitted Feb. 15, 2011.
    
    Filed Feb. 24, 2011.
    
      Nathan Kevin Turner, Vacaville, CA, pro se.
    Morris Gerard Hill, Esquire, Walter C. Chung, San Diego, CA, for Defendants-Appellees.
    Before: CANBY, FERNANDEZ, and M. SMITH, Circuit Judges.
    
      
       The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

Nathan Kevin Turner, a California state prisoner, appeals pro se from the district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging denial of post-conviction access to biological evidence for DNA testing. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Nelson v. Heiss, 271 F.3d 891, 893 (9th Cir.2001), and we affirm.

The district court properly dismissed Turner’s claims that he was denied post-conviction access to biological evidence for DNA testing because he has not stated a viable due process claim. See Dist. Attorney’s Office for Third Judicial Dist. v. Osborne, — U.S.-, 129 S.Ct. 2308, 2320-23, 174 L.Ed.2d 38 (2009) (holding that plaintiff had no viable procedural due process claim because state’s procedures for post-conviction relief did not transgress recognized principles of fundamental fairness, and that there was no substantive due process right to post-conviction access to DNA evidence).

The district court properly dismissed Turner’s claims that defendants destroyed materially exculpatory evidence in bad faith because Turner’s conviction has not been invalidated. See Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) (holding that a constitutional claim that necessarily implies the invalidity of a conviction cannot be brought under § 1983 unless the conviction has already been invalidated).

Turner’s remaining contentions are unpersuasive.

AFFIRMED. 
      
       This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.
     