NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT MAY 01 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JOSE FRANCISCO GARCIA, No. 13-35740
Plaintiff - Appellant, D.C. No. 2:12-cv-03114-LRS
v.
MEMORANDUM*
DERRICK PEREZ, Officer; MIKE
MOREHOUSE, Officer,
Defendants - Appellees.
JOSE FRANCISCO GARCIA, No. 13-35758
Plaintiff - Appellee, D.C. No. 2:12-cv-03114-LRS
v.
DERRICK PEREZ, Officer; MIKE
MOREHOUSE, Officer,
Defendants - Appellants.
Appeal from the United States District Court
for the Eastern District of Washington
Lonny R. Suko, District Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Argued and Submitted April 7, 2015
Seattle, Washington
Before: FERNANDEZ, RAWLINSON, and CALLAHAN, Circuit Judges.
Plaintiff-Appellant Jose Francisco Garcia (Garcia) appeals the district
court’s grant of summary judgment in favor of Defendants-Appellees Derrick
Perez and Michael Morehouse (the officers) on his federal civil rights claims.
The officers cross-appeal, arguing that the district court erred when it failed
to dismiss Garcia’s complaint on the basis of the Heck1 doctrine.
1. The district court erred when it granted summary judgment in favor of the
officers based on qualified immunity. Specifically, the district court erroneously
concluded that the officers’ statement of facts were “uncontroverted” and
“controlling,” without considering Garcia’s verified complaint as opposing
evidence. See Jones v. Blanas, 393 F.3d 918, 923 (9th Cir. 2004) (recognizing that
verified pleadings are admissible to oppose summary judgment). We remand for
the district court to reconsider the motion for summary judgment after taking into
account the video, Garcia’s verified complaint, the officers’ declarations, and other
admissible evidence submitted by the parties. We leave to the district court to
1
Heck v. Humphrey, 512 U.S. 477 (1994).
2
determine in the first instance whether the claim should be analyzed as an
excessive force claim under the Fourth Amendment or a due process claim under
the Fourteenth Amendment. In either event, the district court must determine
whether Garcia has raised a genuine issue of material fact, thereby precluding
summary judgment.2
2. The district court erred when it granted summary judgment to the officers on
all of Garcia’s claims, without “explicitly addressing” Garcia’s unresolved claim
asserting denial of medical treatment. M.M. v. Lafayette School Dist., 767 F.3d
842, 862 (9th Cir. 2014), as amended. We remand this claim for the district court
to consider in the first instance. See id.
3. The district court correctly determined that the Heck bar does not apply to
Garcia’s excessive force claim because it is unclear what facts formed the basis of
the criminal conviction, and a favorable judgment on the excessive force claim
2
We note that the United States Supreme Court recently granted certiorari in
Kingsley v. Hendrickson, 744 F.3d 443 (7th Cir. 2014), 135 S.Ct. 1039 (2015).
The Court’s forthcoming opinion may clarify the appropriate analysis for
considering civil rights claims brought by a pre-trial detainee who is detained
pursuant to a warrant.
3
would not “necessarily imply the invalidity of his conviction.” Heck, 512 U.S. at
487; Smith v. City of Hemet, 394 F.3d 689, 699 (9th Cir. 2005).
We VACATE AND REMAND in Case No. 13-35740 for further
proceedings consistent with this disposition.
We AFFIRM in Case No. 13-35758.
Each party shall bear its costs of appeal.
4