                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 19 2010

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




                             FOR THE NINTH CIRCUIT



 JOSEPH A. SHERMAN,                              No. 08-16136

               Plaintiff - Appellant,            D.C. No. 2:04-CV-02320-LKK-
                                                 EFB
   v.

 CITY OF DAVIS,                                  MEMORANDUM *

               Defendant - Appellee.



                     Appeal from the United States District Court
                        for the Eastern District of California
                    Lawrence K. Karlton, District Judge, Presiding

                             Submitted January 11, 2010 **

Before:        BEEZER, TROTT, and BYBEE, Circuit Judges.

        Joseph A. Sherman appeals pro se from the district court’s judgment in his

42 U.S.C. § 1983 action alleging constitutional violations arising from several

arrests. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes that this case is suitable for
decision without oral argument. See Fed. R. App. P. 34(a)(2).

LA/Research
Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1030 (9th Cir. 2008)

(failure to state a claim); Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d

912, 919 (9th Cir. 2001) (summary judgment). We affirm.

       The district court properly dismissed the false imprisonment and false arrest

claims because these claims necessarily implied the invalidity of Sherman’s

convictions, which had not been overturned. See Heck v. Humphrey, 512 U.S. 477,

486-87 (1994).

       Similarly, the district court properly granted summary judgment on the

excessive force claim as barred by Heck. See Smith v. City of Hemet, 394 F.3d

689, 699 n.5 (9th Cir. 2005) (en banc) (explaining that a jury-trial conviction for

resisting arrest, pursuant to Cal. Penal Code § 148(a)(1), “necessarily determines

the lawfulness of the officers’ actions throughout the whole course of the

defendant’s conduct, and any action alleging the use of excessive force would

necessarily imply the invalidity of his conviction”).

       The district court properly granted summary judgment on the claims that

police lacked probable cause to arrest Sherman, because Sherman failed to raise a

triable issue as to whether probable cause was lacking. See Maag v. Wessler, 960

F.2d 773, 775-76 (9th Cir. 1991).




LA/Research                               2                                     08-16136
       The district court did not abuse its discretion in denying Sherman’s motion

to amend his complaint a second time because amendment would have been futile

or caused undue delay. See Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000)

(en banc).

       Sherman’s remaining contentions are unpersuasive.

       Sherman’s “motion for decision for plaintiff” is denied.

       AFFIRMED.




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