                                                                           FILED
                            NOT FOR PUBLICATION                             DEC 08 2011

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




                            FOR THE NINTH CIRCUIT



JOSE ENRIQUEZ,                                   No. 10-56182

              Plaintiff - Appellant,             D.C. No. 2:05-cv-07414-GW-CT

    v.
                                                 MEMORANDUM *
CITY OF BALDWIN PARK; MARK
KLING, individually; GREG COLEY,
Baldwin Park Police Officer; DOUGLAS
PARNELL, Baldwin Park Police Officer;
MARK KLING,

              Defendants - Appellees,

  and

BALDWIN PARK POLICE
DEPARTMENT,

              Defendant.



                    Appeal from the United States District Court
                       for the Central District of California
                     George H. Wu, 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 November 10, 2011
                              Pasadena, California

Before: SCHROEDER and REINHARDT, Circuit Judges, and HUDSON, District
Judge.**

      Plaintiff-Appellant Jose Enriquez appeals from the district court’s grant of

summary judgment in favor of Defendants-Appellees Baldwin Park Police Officers

Greg Coley and Douglas Parnell in Enriquez’s 42 U.S.C. § 1983 action. Enriquez

alleges that Defendants used excessive force against him when they shot him

multiple times, rendering him a paraplegic. The district court granted Defendants

summary judgment on the ground that Heck v. Humphrey, 512 U.S. 477 (1994),

barred Enriquez’s claim against Defendant Parnell and that Defendants’ use of

deadly force was objectively reasonable under the facts, which were not materially

disputed. Enriquez waived any challenge to the district court’s grant of summary

judgment in favor of the City of Baldwin Park, the Baldwin Park Police

Department, and Baldwin Park Chief Police Officer Mark Kling.

      With respect to Defendant Parnell, Enriquez’s excessive force claim is

barred by Heck, 512 U.S. at 487. Enriquez pled no contest to assaulting Defendant




       **
             The Honorable Henry E. Hudson, United States District Judge for the
Eastern District of Virginia, sitting by designation.

                                         2
Parnell with a semi-automatic firearm, by personally using that firearm, in

connection with the same episode that underlies his § 1983 action. This conviction

has not been set aside and therefore bars Enriquez’s claim against Defendant

Parnell. See id.

      Because it is possible that the basis for the conviction with respect to

Defendant Coley occurred before Defendant Coley’s alleged use of excessive

force, Heck does not bar the claim against Defendant Coley. See Smith v. City of

Hemet, 394 F.3d 689, 698 (9th Cir. 2005). Nevertheless, Defendant Coley’s use of

deadly force was objectively reasonable, because Enriquez aimed his firearm at the

officers on multiple occasions, thereby posing a serious threat of physical harm to

the officers. See Scott v. Henrich, 39 F.3d 912, 914–15 (9th Cir. 1994).

      AFFIRMED.




                                          3
