                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                              FILED
                           FOR THE NINTH CIRCUIT
                                                                              SEP 06 2018
                                                                           MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS
MICHAEL O’CALLAGHAN,                             No.   15-35987

              Plaintiff-Appellant,               D.C. No. 3:12-cv-00201-BR

 v.
                                                 MEMORANDUM*
CITY OF PORTLAND; GREGORY
FRANK, Hearings Officer; KURT
NELSON, City Parks; STUART
PALMITER,

              Defendants-Appellees.


                   Appeal from the United States District Court
                            for the District of Oregon
                    Anna J. Brown, District Judge, Presiding

                       Argued and Submitted July 13, 2017
                               Portland, Oregon

Before: BERZON, WATFORD, and OWENS, Circuit Judges.

      Plaintiff Michael O’Callaghan appeals the district court’s grant of summary

judgment to defendant City of Portland, Oregon (“the City”) and to three

individual defendants on O’Callaghan’s claim under 42 U.S.C. § 1983 that City


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
officials violated his Fourth Amendment rights. O’Callaghan also appeals the

district court’s denial of his request for declaratory relief concerning his claim that

a City ordinance prohibiting camping on public property, Portland City Code

(“PCC”) 14A.50.020, violates the Eighth Amendment. We affirm in part and

reverse in part.

      1.     The district court did not err in granting summary judgment to the

City on O’Callaghan’s Fourth Amendment claim. O’Callaghan alleged in his

Second Amended Complaint (“SAC”) that City officials violated his Fourth

Amendment rights when he was arrested on January 26, 2011.1 That arrest led

directly to O’Callaghan’s conviction on March 14, 2011 for second-degree

criminal mischief. O’Callaghan unsuccessfully appealed his conviction, and

sought a court order vacating his conviction, also unsuccessfully.

      To obtain relief for actions “whose unlawfulness would render a conviction

or sentence invalid,” a § 1983 plaintiff must generally prove “that the conviction or

sentence has been reversed on direct appeal, expunged by executive order, declared



      1
         Although O’Callaghan was arrested three times in January and February of
2011, and alleged in the SAC that all three arrests violated his Fourth Amendment
rights, his appellate briefing makes clear that he challenges only the January 26,
2011 arrest on appeal (“As relevant here, [O’Callaghan] alleged that his arrest on
January 26, 2011, violated the Fourth Amendment because the officers lacked
probable cause.”).
                                           2
invalid by a state tribunal authorized to make such determination, or called into

question by a federal court’s issuance of a writ of habeas corpus.” Heck v.

Humphrey, 512 U.S. 477, 486-87 (1994). Our precedent holds that the Heck bar

applies even to plaintiffs who serve only a short period of time in custody and have

no meaningful opportunity to seek habeas relief, if such a plaintiff could have

successfully challenged their conviction through direct appeal or post-conviction

relief. See Lyall v. City of Los Angeles, 807 F.3d 1178, 1191-92 & n.12 (9th Cir.

2015); Martin v. City of Boise, ___ F.3d ___, 2018 WL 4201159, at *9 (9th Cir.

Sept. 4, 2018). O’Callaghan’s Fourth Amendment claim under section 1983, if

successful, would necessarily rest on the invalidity of his March 2011 conviction.

But O’Callaghan did not obtain a judgment invalidating that conviction before

filing this lawsuit. His section 1983 claim for retrospective relief is therefore

barred under Heck and its progeny.

      2.     The district court erred in denying O’Callaghan’s Motion to Declare

PCC 14A.50.020 Unconstitutional. The district court construed O’Callaghan’s

Eighth Amendment challenge to PCC 14A.50.020 as a facial rather than as-applied

challenge, citing O’Callaghan’s representations at oral argument.

      O’Callaghan concedes on appeal that the ordinance does not, on its face,

violate the Eighth Amendment. But O’Callaghan’s briefing and statements at oral


                                           3
argument before the district court made clear that his Eighth Amendment challenge

was necessarily an as-applied one; O’Callaghan maintained that the ordinance was

unconstitutional as applied to the “thousands of Oregonians who have no legal

place to sleep.”

      We recently held that a city ordinance prohibiting individuals from sleeping

outside on public property may violate the Eighth Amendment when enforced

against homeless individuals who have no access to alternative shelter. See

Martin, 2018 WL 4201159, at *2; Jones v. City of Los Angeles, 444 F.3d 1118,

1138 (9th Cir. 2006), vacated, 505 F.3d 1006 (9th Cir. 2007). The district court

should therefore permit O’Callaghan to amend his complaint to include sufficient

facts concerning whether the ordinance was unconstitutional as applied to

Portland’s homeless population, and then rule on the legal viability of the

complaint. See Eclectic Props. E., LLC v. Marcus & Millichap Co., 751 F.3d 990,

995-97 (9th Cir. 2014); Starr v. Baca, 652 F.3d 1202, 1213-15 (9th Cir. 2011).

       We therefore AFFIRM the district court’s judgment with respect to

O’Callaghan’s Fourth Amendment claim, REVERSE with respect to his Eighth

Amendment challenge, and REMAND to the district court. The parties shall bear

their own costs.




                                          4
