                                                                            FILED
                             NOT FOR PUBLICATION                             MAR 06 2012

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




                             FOR THE NINTH CIRCUIT



LAMARR ROWELL,                                   No. 10-16861

               Plaintiff - Appellant,            D.C. No. 2:07-cv-01169-RCJ-RJJ

  v.
                                                 MEMORANDUM *
EWING BROS. TOWING CO.; et al.,

               Defendants - Appellees.



                    Appeal from the United States District Court
                             for the District of Nevada
                      Robert C. Jones, Chief Judge, Presiding

                            Submitted February 21, 2012 **

Before:        FERNANDEZ, McKEOWN, and BYBEE, Circuit Judges.

       Lamarr Rowell, a Nevada state prisoner, appeals pro se from the district

court’s dismissal order and summary judgment in his 42 U.S.C. § 1983 action

alleging constitutional violations in connection with his arrest and the towing of his

car subsequent to his arrest. 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 a district court’s grant of summary judgment and dismissal under

Heck v. Humphrey, 512 U.S. 477 (1994). Whitaker v. Garcetti, 486 F.3d 572, 579

(9th Cir. 2007). We review for an abuse of discretion a dismissal for failure to

serve. Puett v. Blanford, 912 F.2d 270, 276 (1990). We affirm in part, vacate in

part, and remand.

      The district court granted summary judgment on Rowell’s due process

claims after concluding that the defendant police officers were not responsible for

the sale of Rowell’s car. However, the district court did not address Rowell’s due

process claim regarding the lack of notice about his car being towed. Rowell

stated in his deposition and other court filings that defendant Hiddema was

responsible for the towing; that she knew that the address she provided on the

impoundment report was inaccurate; and that, because she failed to ensure that he

received a copy of the impoundment report, he had no notice that his allegedly

legally parked vehicle had been towed or by whom. He also asserted that he

should have been given an opportunity to have someone move the vehicle before it

was towed. The district court did not address these issues. Accordingly, we vacate

summary judgment as to Hiddema, and remand for the district court to consider in

the first instance whether Rowell was provided adequate notice regarding the

towing of his vehicle. See, e.g., Clement v. City of Glendale, 518 F.3d 1090, 1097


                                          2                                    10-16861
(9th Cir. 2008) (discussing the importance of government providing notice to

vehicle owners in the context of towing, and noting that the “responsibility to give

notice falls on the police”). The court should also consider whether Hiddema’s

provision of an address she allegedly knew to be outdated on the impound report

contributed to deficiencies in notice regarding the sale of Rowell’s vehicle. See,

e.g., Robinson v. Hanrahan, 409 U.S. 38, 40 (1972) (per curiam).

      If the district court determines that Hiddema violated Rowell’s due process

rights, it should also address the question of qualified immunity. See, e.g., Scofield

v. City of Hillsborough, 862 F.2d 759, 765 (9th Cir. 1988).

      Summary judgment on Rowell’s due process claims is proper as to

defendants Giannone, Seed and Young because Rowell conceded that they played

no role in the towing or sale of his vehicle.

      The district court did not abuse its discretion in dismissing Rowell’s claims

against Ewing Bros. Towing Co. for failure to serve, because Rowell did not show

good cause for why he did not take steps to correct deficiencies in service once

Ewing Bros. notified him that it had not been properly served. See Fed. R. Civ. P.

4; c.f. Puett, 912 F.2d at 274-76.

      The district court properly dismissed Rowell’s Fourth Amendment search

and seizure claims arising from his arrest because they were Heck-barred. See


                                           3                                    10-16861
Heck, 512 U.S. at 483-87; Szajer v. City of Los Angeles, 632 F.3d 607, 611 (9th

Cir. 2011) (recognizing that Heck extends to Fourth Amendment search and

seizure claims). However, because claims barred by Heck should be dismissed

without prejudice, we vacate the judgment as to these claims, and remand with

instructions for the district court to dismiss these claims without prejudice. See

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

      Rowell’s remaining contentions, including those relating to not having been

prosecuted for the “ex felon failure to change address” charge, are unpersuasive.

      The parties shall bear their own costs on appeal.

      AFFIRMED in part, VACATED in part, and REMANDED.




                                           4                                    10-16861
