FILED
NOT FOR PUBLICATION
JUL 16 2019
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EDWARD MUSSELMAN, No. 18-15322
Plaintiff-Appellant, D.C. No. 2:14-cv-02790-SMM
v.
MEMORANDUM*
MICHAEL MEELHUYSEN, Badge no.
7090, in his individual capacity as an
officer with the Phoenix Police
Department; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Stephen M. McNamee, District Judge, Presiding
Submitted July 12, 2019**
Portland, Oregon
Before: TASHIMA, GRABER, and OWENS, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
Plaintiff Edward Musselman appeals the summary judgment entered in favor
of Defendant Officers Michael Meelhuysen and Brian Herrick on his 42 U.S.C.
§ 1983 claims of excessive force. Reviewing de novo, and viewing the evidence in
the light most favorable to Plaintiff, Soto v. Sweetman, 882 F.3d 865, 869 (9th
Cir.), cert. denied, 139 S. Ct. 480 (2018), we affirm in part, reverse in part, and
remand.
The district court correctly recognized that Heck v. Humphrey, 512 U.S. 477
(1994), bars certain theories underlying Plaintiff’s claims. For example, Plaintiff
contends that he "did not fight back or otherwise resist" Defendants during the
encounter, that he "made no indication of posing an immediate threat" to
Defendants, and that the use of force was excessive because he "was innocent of
each charge." Plaintiff cannot proceed on those theories because they contradict
his guilty plea for "intentionally plac[ing]" Herrick "in reasonable apprehension of
imminent physical injury."
But Plaintiff can recover under other theories of liability without
invalidating his conviction for assaulting Herrick. Heck does not bar § 1983
claims for excessive force that occurred after the conduct that formed the basis for
a plaintiff’s conviction, because such claims do not necessarily imply the invalidity
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of the conviction. Smith v. City of Hemet, 394 F.3d 689, 698 (9th Cir. 2005) (en banc).
Here, Plaintiff alleges that Meelhuysen beat him after Plaintiff attempted to
kick Herrick and that Herrick "aided and abetted the attack." Heck does not bar
Plaintiff’s claims to the extent that he challenges allegedly excessive force that
occurred after he assaulted Herrick. Byrd v. Phx. Police Dep’t, 885 F.3d 639, 645
(9th Cir. 2018) (per curiam). In Beets v. County of Los Angeles, 669 F.3d 1038,
1044 (9th Cir. 2012), where we held that Heck barred the plaintiffs’ excessive
force claims, the defendant officer "acted during the course of [the plaintiffs’]
criminal activity and brought that activity to an end." (Emphasis added.) By
contrast, according to Plaintiff, Meelhuysen repeatedly punched Plaintiff in the
face after Plaintiff assaulted Herrick, so Meelhuysen’s use of allegedly excessive
force did not bring Plaintiff’s criminal activity to an end (because it had already
ended). Thus, although the encounter ended quickly, there still existed a temporal
gap between Plaintiff’s attempt to kick Herrick and Meelhuysen’s punching
Plaintiff after Plaintiff ended up on the ground. Because Heck does not bar these
claims, the grant of summary judgment to Defendants on these claims is reversed.
AFFIRMED in part, REVERSED in part, and REMANDED. The
parties shall bear their own costs on appeal.
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