                                                                           FILED
                             NOT FOR PUBLICATION                            NOV 19 2010

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




                             FOR THE NINTH CIRCUIT



SHANE D. WILLIS,                                 No. 09-35820

               Plaintiff - Appellant,            D.C. No. 3:08-cv-01510-HA

  v.
                                                 MEMORANDUM *
CITY OF SALEM, OREGON; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Oregon
                    Ancer L. Haggerty, District Judge, Presiding

                           Submitted November 16, 2010 **


Before:        TASHIMA, BERZON, and CLIFTON, Circuit Judges.

       Oregon state prisoner Shane D. Willis appeals pro se from the district court’s

judgment dismissing his civil rights complaint pursuant to the screening provisions

of 28 U.S.C. § 1915(e)(2). We have jurisdiction under 28 U.S.C. § 1291. We


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
review de novo. Huftile v. Miccio-Fonseca, 410 F.3d 1136, 1138 (9th Cir. 2005).

We affirm in part, reverse in part, and remand.

      The district court properly dismissed without prejudice Willis’s alleged

illegal search and seizure claim. See Harvey v. Waldron, 210 F.3d 1008, 1013 (9th

Cir. 2000), overruled on other grounds by Wallace v. Kato, 549 U.S. 384 (2007)

(“a § 1983 action that would call into question the lawfulness of a plaintiff’s

conviction or confinement is not cognizable” under Heck v. Humphrey, 512 U.S.

477 (1994)). Because it is clear this claim cannot be cured by amendment, the

district court properly dismissed it without leave to amend. See Cato v. United

States, 70 F.3d 1103, 1106 (9th Cir. 1995). We affirm as to this claim.

      The district court, however, prematurely dismissed Willis’s claims based on

alleged physical assault by the officers who arrested him and the City’s alleged

failure to train or supervise its officers not to use excessive force. A pro se civil

rights complaint “need not identify the statutory or constitutional source of the

claim raised in order to survive a motion to dismiss.” Alvarez v. Hill, 518 F.3d

1152, 1157 (9th Cir. 2008); Shaw v. State of Cal. Dep’t of Alcoholic Beverage

Control, 788 F.2d 600, 610 (9th Cir. 1986) (to survive dismissal “it is enough if the

custom or policy can be inferred from the allegations of the complaint”). Although

Willis’s complaint does not expressly refer to the Fourth Amendment, it alleges


                                            2                                     09-35820
facts that the officers used excessive force in the course of an investigatory stop

and arrest. See Graham v. Connor, 490 U.S. 386, 394-95 (1989). Under Federal

Rule of Civil Procedure 8, those allegations are sufficient. See Austin v. Terhune,

367 F.3d 1167, 1171 (9th Cir. 2004); see also Karim-Panahi v. Los Angeles Police

Dep’t, 839 F.2d 621, 623 (9th Cir. 1988) (“In civil rights cases where the plaintiff

appears pro se, the court must construe the pleadings liberally and must afford

plaintiff the benefit of any doubt.”).

      We reverse the dismissal of these two claims, and remand for further

proceedings. We express no opinion as to the merits of these claims.

      Willis shall bear his own costs on appeal.

      AFFIRMED in part, REVERSED in part, and REMANDED.




                                           3                                    09-35820
