NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 26 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DWAYNE LAMONT BURGESS, No. 15-17462
Plaintiff-Appellant, D.C. No. 1:11-cv-00921-LJO-JLT
v.
MEMORANDUM*
J. RAYA; et al.,
Defendants-Appellees,
and
P. MORALES; et al.,
Defendants.
Appeal from the United States District Court
for the Eastern District of California
Lawrence J. O’Neill, Chief Judge, Presiding
Submitted April 11, 2017**
Before: GOULD, CLIFTON, and HURWITZ, Circuit Judges.
California state prisoner Dwayne Lamont Burgess appeals pro se from the
*
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).
district court’s summary judgment in his 42 U.S.C. § 1983 action alleging various
constitutional claims. We have jurisdiction under 28 U.S.C. § 1291. We review de
novo. Hooper v. County of San Diego, 629 F.3d 1127, 1129 (9th Cir. 2011). We
affirm in part, reverse in part, and remand.
The district court properly granted summary judgment on Burgess’ First
Amendment retaliation and conspiracy claims because a judgment in Burgess’
favor would necessarily imply the invalidity of his disciplinary proceedings. See
Heck v. Humphrey, 512 U.S. 477, 486-87 (1994) (if “a judgment in favor of the
plaintiff would necessarily imply the invalidity of his conviction or sentence . . .
the complaint must be dismissed unless the plaintiff can demonstrate that the
conviction or sentence has already been invalidated.”); see also Edwards v.
Balisok, 520 U.S. 641 (1997) (extending Heck to disciplinary proceedings).
The district court properly granted summary judgment on Burgess’
excessive force claim as Heck-barred to the extent that Burgess alleged that
defendants used pepper spray for a purpose other than to regain control. See Heck,
512 U.S. at 486-87; see also Clement v. Gomez, 298 F.3d 898, 903 (9th Cir. 2002)
(force is not excessive when “applied in a good faith effort to restore discipline and
order and not maliciously and sadistically for the very purpose of causing harm”).
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However, to the extent that Burgess alleged that he was exposed to pepper
spray for a prolonged period of time despite alerting defendants to his health
issues, Heck does not bar Burgess’ claims. See Smith v. City of Hemet, 394 F.3d
689, 696-98 (9th Cir. 2005) (claim not barred by Heck if the alleged use of
excessive force occurred after the conduct on which the conviction was based).
Because the district court relied only on Heck in dismissing this claim, we reverse
the judgment in part and remand for further proceedings on this claim only.
The parties shall bear their own costs on appeal.
AFFIRMED in part, REVERSED in part, and REMANDED.
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