Jose Enriquez v. City of Baldwin Park

FILED
NOT FOR PUBLICATION DEC 08 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
JOSE ENRIQUEZ, No. 10-56182
Plaintiff - Appellant, D.C. No. 2:05-cv-07414-GW-CT
v.
MEMORANDUM *
CITY OF BALDWIN PARK; MARK
KLING, individually; GREG COLEY,
Baldwin Park Police Officer; DOUGLAS
PARNELL, Baldwin Park Police Officer;
MARK KLING,
Defendants - Appellees,
and
BALDWIN PARK POLICE
DEPARTMENT,
Defendant.
Appeal from the United States District Court
for the Central District of California
George H. Wu, 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 November 10, 2011
Pasadena, California
Before: SCHROEDER and REINHARDT, Circuit Judges, and HUDSON, District
Judge.**
Plaintiff-Appellant Jose Enriquez appeals from the district court’s grant of
summary judgment in favor of Defendants-Appellees Baldwin Park Police Officers
Greg Coley and Douglas Parnell in Enriquez’s 42 U.S.C. § 1983 action. Enriquez
alleges that Defendants used excessive force against him when they shot him
multiple times, rendering him a paraplegic. The district court granted Defendants
summary judgment on the ground that Heck v. Humphrey, 512 U.S. 477 (1994),
barred Enriquez’s claim against Defendant Parnell and that Defendants’ use of
deadly force was objectively reasonable under the facts, which were not materially
disputed. Enriquez waived any challenge to the district court’s grant of summary
judgment in favor of the City of Baldwin Park, the Baldwin Park Police
Department, and Baldwin Park Chief Police Officer Mark Kling.
With respect to Defendant Parnell, Enriquez’s excessive force claim is
barred by Heck, 512 U.S. at 487. Enriquez pled no contest to assaulting Defendant
**
The Honorable Henry E. Hudson, United States District Judge for the
Eastern District of Virginia, sitting by designation.
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Parnell with a semi-automatic firearm, by personally using that firearm, in
connection with the same episode that underlies his § 1983 action. This conviction
has not been set aside and therefore bars Enriquez’s claim against Defendant
Parnell. See id.
Because it is possible that the basis for the conviction with respect to
Defendant Coley occurred before Defendant Coley’s alleged use of excessive
force, Heck does not bar the claim against Defendant Coley. See Smith v. City of
Hemet, 394 F.3d 689, 698 (9th Cir. 2005). Nevertheless, Defendant Coley’s use of
deadly force was objectively reasonable, because Enriquez aimed his firearm at the
officers on multiple occasions, thereby posing a serious threat of physical harm to
the officers. See Scott v. Henrich, 39 F.3d 912, 914–15 (9th Cir. 1994).
AFFIRMED.
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