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NOT FOR PUBLICATION JAN 19 2010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.
LA/Research 3 08-16136