                                                                          FILED
                            NOT FOR PUBLICATION                            APR 27 2012

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




                            FOR THE NINTH CIRCUIT



KANAY MUBITA,                                    No. 11-35273

              Plaintiff - Appellant,             D.C. No. 1:07-cv-00549-BLW

  v.
                                                 MEMORANDUM *
DANIEL WEAVER, Moscow Police
Department Chief; et al.,

              Defendants - Appellees.



                    Appeal from the United States District Court
                              for the District of Idaho
                  B. Lynn Winmill, Chief District Judge, Presiding

                       Argued and Submitted April 17, 2012
                            San Francisco, California

Before: GOODWIN, REINHARDT, and MURGUIA, Circuit Judges.

       Kanay Mubita appeals from the district court’s dismissal with prejudice of his

informational privacy, due process, and Fourth Amendment claims. Exercising

jurisdiction under 28 U.S.C. § 1291, we affirm in part and vacate and remand in part.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      The district court held that Mubita’s informational privacy claim was barred by

the statute of limitations and that it would otherwise fail on the merits. We may affirm

on any basis supported by the record, Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th

Cir. 2008), and therefore decline to express any view as to whether Mubita’s claim is

barred by the statute of limitations. We hold only that the claim fails on the merits.

      Mubita concedes that the police could lawfully have issued a press release

stating simply that he had been arrested for a violation of Idaho Code § 39-608.

Indeed, that concession is dictated by Paul v. Davis, 424 U.S. 693, 713 (1976). The

only question is whether Mubita had a privacy interest in any information that the

press release disclosed other than the basic fact of his arrest. We hold that he did not.

      Mubita argues that the press release disclosed two pieces of information beyond

the fact of his arrest. First, it referred to “his HIV status,” implying that he actually

had HIV, not just that he had been arrested for transmitting bodily fluids that might

contain HIV. This is a distinction without a difference. Under Paul, there is no

constitutionally relevant distinction between a public statement that someone was

arrested for a crime and a public statement that the person committed the crime.1



      1
        Davis “had been charged with shoplifting but his guilt or innocence of that
offense had never been resolved,” and the charge was ultimately dismissed. 424 U.S.
at 696. Flyers distributed by the defendants nonetheless identified Davis and others
as “ACTIVE SHOPLIFTERS.” Id. at 695.

                                          -2-
Moreover, Mubita’s HIV status is obvious from the nature of the crime with which he

was charged. Mubita has not explained how anyone could be convicted for a violation

of § 39-608 if he were not HIV-positive.

      Second, Mubita contends that the press release disclosed private information

about his past sexual activity. He cites the following sentence in the release: “Further

investigation revealed that Mubita may have had multiple sexual partners during the

last three years.” The flaw in Mubita’s argument is that the police learned this

information, during the course of their investigation, from people other than Mubita

himself. The information was therefore not private to him at all. Just as nothing would

have prevented Mubita’s sexual partners from holding a news conference to discuss

their intimate relationships with him, nothing prevented them from speaking freely to

the police. Mubita offers no authority to rebut the proposition that the police generally

may publicize material information that they learn in the course of a criminal

investigation.

      Even if Mubita did have a privacy interest in any of the information disclosed

by the press release, that interest was outweighed by the state’s public-safety concern.

“The government may seek and use information covered by the right to privacy if it

can show that its use of the information would advance a legitimate state interest and

that its actions are narrowly tailored to meet the legitimate interest.” Doe v. Att’y Gen.


                                           -3-
of the U.S., 941 F.2d 780, 796 (9th Cir. 1991), overruled on other grounds by Lane

v. Pena, 518 U.S. 187 (1996). “[P]ublic health and safety requirements” are “long

established exceptions to the confidentiality of medical communications,” Seaton v.

Mayberg, 610 F.3d 530, 540 (9th Cir. 2010), and the document that Mubita signed

when he began receiving health services expressly provided that his private

information could be released in the event of “a clear and immediate danger to

[himself] or others.” The police obviously had a strong, legitimate interest in

protecting public safety by informing Mubita’s sexual partners of his HIV status, both

to encourage them to seek treatment and to prevent further transmission of the virus.

      Mubita argues that the press release was not narrowly tailored to this public-

safety objective because the police could have announced only the fact of his arrest

and urged anyone who knew him to contact the authorities. We disagree. The reason

the press release attracted heavy attention, and thus enabled the police to learn of a

dozen additional women to whom Mubita might have transmitted HIV, is precisely

that it did disclose the nature of the threat to the public that he posed. We therefore

affirm the district court’s dismissal of Mubita’s informational privacy claim.

      As the defendants concede, however, the district court erred in dismissing

Mubita’s Fourth Amendment and due process claims with prejudice. The district court

had previously held that these claims were barred by the doctrine of Heck v.


                                          -4-
Humphrey, 512 U.S. 477 (1994), and Mubita does not challenge this determination.

We have held that the dismissal of Heck-barred claims must “be without prejudice so

that [the plaintiff] may reassert his claims if he ever succeeds in invalidating his

conviction.” Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995) (per

curiam). Mubita’s federal habeas petition remains pending in the district court, which

has stayed the proceedings pending the resolution of Mubita’s state collateral

challenge to his convictions. The dismissal of Mubita’s Heck-barred claims with

prejudice would prevent him from reasserting the claims even if he were to prevail in

one of the collateral proceedings. We therefore vacate the district court’s dismissal

with prejudice of Mubita’s Fourth Amendment and due process claims and remand

so that the district court may dismiss these claims without prejudice.

      Each party shall bear its own costs on this appeal.

AFFIRMED IN PART, VACATED IN PART, and REMANDED.




                                         -5-
