Andrew Strong v. Kyle Pettengell ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 9 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ANDREW STEVEN STRONG, No. 19-15249
Plaintiff-Appellant, D.C. No. 2:18-cv-03137-DLR-JZB
v.
MEMORANDUM*
KYLE PETTENGELL, Tempe Police
Officer #20942,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
Douglas L. Rayes, District Judge, Presiding
Submitted June 2, 2020**
Before: LEAVY, PAEZ, and BENNETT, Circuit Judges.
Andrew Steven Strong appeals from the district court’s judgment dismissing
his 42 U.S.C. § 1983 action alleging an excessive force claim. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s
dismissal under 28 U.S.C. § 1915A. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.
*
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).
2000). We vacate and remand.
The district court dismissed Strong’s action after finding that success on
Strong’s excessive force claim would necessarily imply the invalidity of his
conviction for resisting arrest, relying on Heck v. Humphrey, 512 U.S. 477 (1994),
and taking judicial notice of the fact that Strong pled guilty to resisting arrest with
physical force. However, it is not clear from the face of the complaint or the fact
of his guilty plea that his excessive force claim would necessarily call into question
the validity of his conviction, because the specific factual basis for his guilty plea
is not in the record. See Reese v. County of Sacramento, 888 F.3d 1030, 1046 (9th
Cir. 2018) (holding that without the specific factual basis for plaintiff’s prior
conviction for drawing, exhibiting, or using a firearm or deadly weapon, the court
could not determine if plaintiff’s excessive force claim would call into question the
validity of the conviction); Hooper v. City of San Diego, 629 F.3d 1127, 1133-34
(9th Cir. 2011) (explaining that a plaintiff’s claim that an arresting officer used
excessive force may coexist with a conviction for resisting a lawful arrest, when
the conviction and the excessive force claim are based on different actions). We
vacate the district court’s judgment and remand for further proceedings.
VACATED AND REMANDED.
2 19-15249