                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAY 01 2015

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

JOSE FRANCISCO GARCIA,                           No. 13-35740

              Plaintiff - Appellant,             D.C. No. 2:12-cv-03114-LRS

  v.
                                                 MEMORANDUM*
DERRICK PEREZ, Officer; MIKE
MOREHOUSE, Officer,

              Defendants - Appellees.



JOSE FRANCISCO GARCIA,                           No. 13-35758

              Plaintiff - Appellee,              D.C. No. 2:12-cv-03114-LRS

  v.

DERRICK PEREZ, Officer; MIKE
MOREHOUSE, Officer,

              Defendants - Appellants.


                   Appeal from the United States District Court
                     for the Eastern District of Washington
                    Lonny R. Suko, District Judge, Presiding


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                        Argued and Submitted April 7, 2015
                               Seattle, Washington

Before: FERNANDEZ, RAWLINSON, and CALLAHAN, Circuit Judges.

      Plaintiff-Appellant Jose Francisco Garcia (Garcia) appeals the district

court’s grant of summary judgment in favor of Defendants-Appellees Derrick

Perez and Michael Morehouse (the officers) on his federal civil rights claims.

      The officers cross-appeal, arguing that the district court erred when it failed

to dismiss Garcia’s complaint on the basis of the Heck1 doctrine.



1.    The district court erred when it granted summary judgment in favor of the

officers based on qualified immunity. Specifically, the district court erroneously

concluded that the officers’ statement of facts were “uncontroverted” and

“controlling,” without considering Garcia’s verified complaint as opposing

evidence. See Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004) (recognizing that

verified pleadings are admissible to oppose summary judgment). We remand for

the district court to reconsider the motion for summary judgment after taking into

account the video, Garcia’s verified complaint, the officers’ declarations, and other

admissible evidence submitted by the parties. We leave to the district court to



      1
          Heck v. Humphrey, 512 U.S. 477 (1994).
                                          2
determine in the first instance whether the claim should be analyzed as an

excessive force claim under the Fourth Amendment or a due process claim under

the Fourteenth Amendment. In either event, the district court must determine

whether Garcia has raised a genuine issue of material fact, thereby precluding

summary judgment.2



2.    The district court erred when it granted summary judgment to the officers on

all of Garcia’s claims, without “explicitly addressing” Garcia’s unresolved claim

asserting denial of medical treatment. M.M. v. Lafayette School Dist., 767 F.3d

842, 862 (9th Cir. 2014), as amended. We remand this claim for the district court

to consider in the first instance. See id.



3.    The district court correctly determined that the Heck bar does not apply to

Garcia’s excessive force claim because it is unclear what facts formed the basis of

the criminal conviction, and a favorable judgment on the excessive force claim




      2
      We note that the United States Supreme Court recently granted certiorari in
Kingsley v. Hendrickson, 744 F.3d 443 (7th Cir. 2014), 135 S.Ct. 1039 (2015).
The Court’s forthcoming opinion may clarify the appropriate analysis for
considering civil rights claims brought by a pre-trial detainee who is detained
pursuant to a warrant.
                                             3
would not “necessarily imply the invalidity of his conviction.” Heck, 512 U.S. at

487; Smith v. City of Hemet, 394 F.3d 689, 699 (9th Cir. 2005).

      We VACATE AND REMAND in Case No. 13-35740 for further

proceedings consistent with this disposition.

      We AFFIRM in Case No. 13-35758.

      Each party shall bear its costs of appeal.




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