                                                                          FILED
                            NOT FOR PUBLICATION                            AUG 02 2013

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



                            FOR THE NINTH CIRCUIT


MIGUEL RODRIGUEZ; CHARISSE                       No. 11-15306
FERNANDEZ; ADRIAN ALIZAGA,
                                                 D.C. No. 1:10-cv-01370-LJO-MJS
              Plaintiffs - Appellants,

       v.                                        MEMORANDUM*

CITY OF MODESTO, a municipal
corporation; ROY WASDEN, Police
Chief, in his official capacity; RON
CLOWARD, Lieutenant; JOHN
BUEHLER, Sergeant; JEFF SPRUILL;
JAMES MURPHY; CASEY GRAHAM;
FLORENCIO COSTALES; RONNY
ZIYA; MARK FONTES, Police Officers;
KALANI SOUZA,

              Defendants - Appellees.

                   Appeal from the United States District Court
                       for the Eastern District of California
                   Lawrence J. O’Neill, District Judge, Presiding

                       Argued and Submitted March 14, 2013
                            San Francisco, California




        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: FISHER and NGUYEN, Circuit Judges, and GARBIS, District Judge.**

      On February 8, 2009, a series of interactions transpired between City of

Modesto police officers and Plaintiffs Miguel Rodriguez, Charisse Fernandez, and

Adrian Alizaga, culminating in Plaintiffs’ arrest. Plaintiffs each entered a nolo

contendere plea to a charge of resisting, delaying, or obstructing a peace officer in

violation of California Penal Code § 148(a)(1).1 Thereafter, Plaintiffs brought suit

under 42 U.S.C. § 1983 and state law against the arresting officers, alleging the

officers falsely arrested and exerted excessive force upon Plaintiffs. Plaintiffs also

asserted a Monell claim against the City of Modesto and Police Chief Wasden and

a supervisory liability claim against Lt. Cloward. Plaintiffs appeal the district

court’s dismissal of their claims as barred by Heck v. Humphrey, 512 U.S. 477

(1994), and its state-law analogue or for failure to state a claim under Federal Rule

of Civil Procedure 12(b)(6).

      We have jurisdiction under 28 U.S.C. § 1291. We review de novo a district

court’s dismissal for failure to state a claim, Cook v. Brewer, 637 F.3d 1002, 1004



          **
         The Honorable Marvin J. Garbis, Senior United States District Judge for
the District of Maryland, sitting by designation.
      1
       California law provides that, except for certain evidentiary distinctions, a
nolo contendere plea is “considered the same as a plea of guilty.” Cal. Penal Code
§ 1016(3).

                                           2
(9th Cir. 2011), and review for an abuse of discretion a district court’s decision to

dismiss with prejudice, Okwu v. McKim, 682 F.3d 841, 844 (9th Cir. 2012). We

affirm in part, reverse in part, and remand to the district court for further

proceedings consistent with this decision.

      1. Under the Supreme Court’s decision in Heck, a plaintiff cannot maintain

a § 1983 suit for damages if success on the § 1983 claim would “necessarily

imply” the invalidity of a related prior criminal conviction, such as by negating an

element of the convicted offense. 512 U.S. at 486-87 & n.6. California recognizes

a similar doctrine, and the “California Supreme Court has not distinguished

between the application of Heck to § 1983 [excessive force ] claims and the

application of analogous California law to state-law claims.” Hooper v. Cnty. of

San Diego, 629 F.3d 1127, 1134 (9th Cir. 2011) (citing Yount v. City of

Sacramento, 183 P.3d 471, 484 (Cal. 2008)).

      Under California law, an essential element of a valid § 148(a)(1) conviction

is that the police officer was acting lawfully in the discharge or attempted

discharge of her duties at the time the defendant resisted, delayed, or obstructed the

officer. See Garcia v. Superior Court, 99 Cal. Rptr. 3d 488, 500 (Ct. App. 2009).

A police officer is not lawfully performing her duties if she arrests an individual

without probable cause, see id., or uses unreasonable or excessive force on the


                                            3
individual at the time the defendant’s unlawful resistance, delay or obstruction is

occurring, see People v. Olguin, 173 Cal. Rptr. 663, 667 (Ct. App. 1981).

      Plaintiffs’ convictions establish for purposes of Heck that at some point

during the February 8 incident, Plaintiffs resisted, delayed, or obstructed the

arresting officers at a time when the officers were acting lawfully, and thus using

reasonable force, in violation of § 148(a)(1). Therefore, to the extent Plaintiffs

maintain they did nothing wrong and were arrested without reason, the district

court correctly dismissed their § 1983 and state law claims in light of Heck and its

California analogue, because success on such claims would necessarily imply

Plaintiffs did not violate § 148(a)(1).

      Heck is not the death knell of Plaintiffs’ § 1983 excessive force claims,

however. Plaintiffs may, consistent with Heck, pursue claims that the arresting

officers used excessive force subsequent to Plaintiffs’ unlawful resistance, delay,

or obstruction, such as a claim of post-arrest excessive force, see Sanford v. Motts,

258 F.3d 1117, 1119-20 (9th Cir. 2001), or a claim that, though having a right to

use reasonable force based on Plaintiffs’ § 148(a)(1) violations, the arresting

officers responded with excessive force, see Hooper, 629 F.3d at 1133; Yount, 183

P.3d at 481-82.




                                           4
      For these reasons, we conclude that the district court erred in holding that, as

a matter of law, Heck and its state-law equivalent preclude Plaintiffs from

maintaining any possible claim of excessive force arising from the February 8

incident. Yet Plaintiffs did fail to put Defendants on notice as to the nature of their

excessive force claims. Plaintiffs did not allege facts showing how the force at

issue differed from or exceeded the reasonable force Defendants lawfully could

have employed to arrest Plaintiffs for their § 148(a)(1) violations. Since it appears

that the complaint may be amended to present claims that would not be Heck-

barred, the district court abused its discretion by dismissing with prejudice the §

1983 excessive force and state law battery claims. See AE ex rel. Hernandez v.

Cnty. of Tulare , 666 F.3d 631, 637-38 (9th Cir. 2012).

      2. We affirm the district court’s dismissal of Plaintiffs’ state law civil rights

claim, Cal. Civ. Code §§ 51.7, 52.1, as wholly conclusory. See United States v.

Sandoval-Orellana, 714 F.3d 1174, 1178 (9th Cir. 2013) (“[W]e may affirm the

denial of a motion to dismiss on any basis supported by the record.”). Plaintiffs’

claim merely recites the statutory language of California Civil Code §§ 51.7 and

52.1, making it impossible to discern even what the factual basis is for this claim.

See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“Threadbare recitals of the

elements of a cause of action, supported by mere conclusory statements, do not


                                           5
suffice.”). Because these claims were asserted for the first time in the First

Amended Complaint and Plaintiffs have not yet had an opportunity to cure their

pleading deficiencies, however, the district court abused its discretion in

dismissing this claim without leave to amend.

      3. The district court properly dismissed the First Amended Complaint as

against Officer Souza. The vague allegation that Officer Souza held a police dog

near Plaintiff Fernandez’s head while she lay handcuffed on the ground is

inadequate to state a claim for excessive force, battery, or a violation of California

Civil Code §§ 51.7 and 52.1. It is possible, however, that Plaintiffs’ allegation

could be supplemented with more detail to support cognizable claims against

Officer Souza. See Mendoza v. Block, 27 F.3d 1357, 1361-62 (9th Cir. 1994)

(holding that use of a police dog in a § 1983 suit is subject to excessive force

analysis); see also Robinson v. Solano Cnty., 278 F.3d 1007, 1014-15 (9th Cir.

2002) (holding viable excessive force claim based upon pointing of a gun at

suspect’s head at close range).

      4. The district court erred in dismissing the supervisory liability claim

against Lt. Cloward with prejudice because the First Amended Complaint

sufficiently alleges that Lt. Cloward was the ranking officer on the scene at the

February 8 incident and personally directed the arresting officers. Cf. Hansen v.


                                           6
Black, 885 F.2d 642, 646 (9th Cir. 1989) (dismissing supervisory liability claim

where the complaint included “no allegation that the police chief was personally

involved in the incident”). Although Plaintiffs have not adequately alleged a

Fourth Amendment violation underlying their supervisory liability claim, they may

be able to do so in an amended complaint.

      5. The district court properly dismissed with prejudice the wholly

conclusory Monell claim against the City of Modesto and Chief Wasden. The

district court had previously dismissed the Monell claim with leave to amend on

the ground that the complaint contained insufficient factual allegations. Yet, in

their First Amended Complaint, Plaintiffs once again failed to include any factual

allegations to support their claim. See Iqbal, 556 U.S. at 678.

      For the aforesaid reasons, we affirm the district court’s dismissal with

prejudice of Plaintiffs’ false arrest and Monell claims. We affirm the district

court’s dismissal of the First Amended Complaint as against Officer Souza, and of

Plaintiffs’ supervisory liability claim, excessive force claims, and violation of

California Civil Code §§ 51.7 and 52.1 claims, but we reverse the district court’s

decision to dismiss these claims without leave to amend. We remand to the district

court to permit amendment of the complaint consistent with this decision.

      The parties shall bear their own costs of appeal.


                                           7
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.




                       8
