                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        APR 26 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

DWAYNE LAMONT BURGESS,                          No. 15-17462

                Plaintiff-Appellant,            D.C. No. 1:11-cv-00921-LJO-JLT

 v.
                                                MEMORANDUM*
J. RAYA; et al.,

                Defendants-Appellees,

and

P. MORALES; et al.,

                Defendants.

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

                              Submitted April 11, 2017**

Before:      GOULD, CLIFTON, and HURWITZ, Circuit Judges.

      California state prisoner Dwayne Lamont Burgess appeals pro se from the



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging various

constitutional claims. We have jurisdiction under 28 U.S.C. § 1291. We review de

novo. Hooper v. County of San Diego, 629 F.3d 1127, 1129 (9th Cir. 2011). We

affirm in part, reverse in part, and remand.

      The district court properly granted summary judgment on Burgess’ First

Amendment retaliation and conspiracy claims because a judgment in Burgess’

favor would necessarily imply the invalidity of his disciplinary proceedings. See

Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (if “a judgment in favor of the

plaintiff would necessarily imply the invalidity of his conviction or sentence . . .

the complaint must be dismissed unless the plaintiff can demonstrate that the

conviction or sentence has already been invalidated.”); see also Edwards v.

Balisok, 520 U.S. 641 (1997) (extending Heck to disciplinary proceedings).

      The district court properly granted summary judgment on Burgess’

excessive force claim as Heck-barred to the extent that Burgess alleged that

defendants used pepper spray for a purpose other than to regain control. See Heck,

512 U.S. at 486-87; see also Clement v. Gomez, 298 F.3d 898, 903 (9th Cir. 2002)

(force is not excessive when “applied in a good faith effort to restore discipline and

order and not maliciously and sadistically for the very purpose of causing harm”).

                                           2                                    15-17462
      However, to the extent that Burgess alleged that he was exposed to pepper

spray for a prolonged period of time despite alerting defendants to his health

issues, Heck does not bar Burgess’ claims. See Smith v. City of Hemet, 394 F.3d

689, 696-98 (9th Cir. 2005) (claim not barred by Heck if the alleged use of

excessive force occurred after the conduct on which the conviction was based).

Because the district court relied only on Heck in dismissing this claim, we reverse

the judgment in part and remand for further proceedings on this claim only.

      The parties shall bear their own costs on appeal.

      AFFIRMED in part, REVERSED in part, and REMANDED.




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