                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                            FEB 24 2017
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
JORGE GALINDO, an individual,                    No.   15-55792

              Plaintiff-Appellant,               D.C. No.
                                                 8:14-cv-00179-AG-RNB
 v.

CITY OF ORANGE and FERNANDO                      MEMORANDUM*
MALDONADO,

              Defendants-Appellees.


                   Appeal from the United States District Court
                      for the Central District of California
                   Andrew J. Guilford, District Judge, Presiding

                     Argued and Submitted February 15, 2017
                              Pasadena, California

Before: TALLMAN and N.R. SMITH, Circuit Judges, and MURPHY,** District
Judge.

      Jorge Galindo appeals the district court’s summary judgment dismissal of




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Stephen Joseph Murphy III, United States District
Judge for the Eastern District of Michigan, sitting by designation.
his 42 U.S.C. § 1983 excessive force claim and analogous state law claims against

the City of Orange and Officer Fernando Maldonado. We have jurisdiction under

28 U.S.C. § 1291, and we affirm.

      Under the Supreme Court’s decision in Heck v. Humphrey, a plaintiff cannot

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

imply” the invalidity of a related prior criminal conviction. 512 U.S. 477, 487

(1994). Thus, a claim is barred under Heck if the plaintiff “would have to negate an

element of the offense of which he has been convicted,” id. at 486 n.6, or make

specific factual allegations inconsistent with his criminal conviction, Cunningham

v. Gates, 312 F.3d 1148, 1154 (9th Cir. 2002). California recognizes a similar

doctrine, and “[t]he 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. Cty. of San Diego, 629

F.3d 1127, 1134 (9th Cir. 2011) (citing Yount v. City of Sacramento, 183 P.3d 471,

484 (Cal. 2008)).

      Galindo’s suit is barred for two reasons. First, to prevail on his § 1983 claim,

Galindo must negate an element of his California Penal Code section 148(a)(1)

conviction. For a valid section 148(a)(1) conviction, “the defendant must have

resisted, delayed, or obstructed a police officer in the lawful exercise of” the


                                           2
officer’s duties. Hooper, 629 F.3d at 1130 (internal quotation marks, citation, and

alterations omitted). “The lawfulness of the officer’s conduct is an essential

element of the offense under section 148(a)(1).” Id. The actions to which Galindo

pleaded guilty under section 148(a)(1) occurred at the same time Officer

Maldonado allegedly used excessive force.1 This circumstance means Galindo

must negate an element of his conviction—Officer Maldonado’s lawful exercise of

his duties—to prevail on his § 1983 claim.

      Additionally, Galindo’s claim is barred because he pleaded specific factual

allegations in his § 1983 complaint that are inconsistent with the admissions

supporting his criminal conviction. See Cunningham, 312 F.3d at 1154. Galindo

alleges in his complaint that he “was not offering any resistance,” “there was no

reason for him to not be able to be free from being detained,” and he “was engaged

in lawful activity.” But Galindo’s allegations directly contradict his guilty plea

admissions that he “resisted, delayed, [and] obstructed Officer Fernando

Maldonado,” “refus[ed] Officer Maldonado’s commands,” and “refus[ed] to show




      1
         Galindo pleaded guilty and stipulated to “refusing to show [his] hands.”
When Officer Maldonado shot Galindo, his hands were not showing. Galindo’s left
hand was out of sight and his right hand was reaching towards his left pocket. Even
Galindo now alleges in his complaint that he was “attempting to provide his
identification . . . when” he was shot.
                                           3
[his] hands despite numerous requests.” Because Galindo expressly disclaims acts

to which he pleaded guilty, his claim necessarily fails under Heck.

      AFFIRMED.




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