Rainey v. City of San Bernardino

MEMORANDUM^**

Patrick Ricks Rainey appeals the district court’s order dismissing for failure to state a claim his 42 U.S.C. § 1983 action alleging false arrest, excessive force, and state law claims related to his arrest by San Bernardino police on July 29, 2001. We have jurisdiction under 28 U.S.C. § 1291, and we review de novo. Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir.1994) (per curiam). We affirm in part and vacate in part.

The district court properly concluded that Rainey’s false arrest claim was barred by his conviction for disorderly conduct, Cal.Penal Code § 415. See Cabrera v. Huntington Park, 159 F.3d 374, 380 (9th Cir.1998).

However, we vacate the district court’s dismissal of Ramey’s excessive force claim because the record shows that Rainey was not convicted of resisting arrest under California Penal Code § 148; rather, the charge was dismissed pursuant to a plea bargain. See Heck v. Humphrey, 512 U.S. 477, 487, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). We are not persuaded by defendants’ contention that Rainey’s conviction under Penal Code § 415 nonetheless bars his excessive force claim. See Cabrera, 159 F.3d at 380-81 (recognizing that plaintiffs excessive force claim, if successful, would not necessarily imply the invalidity of his conviction for disorderly conduct).

Accordingly, we affirm the district court’s dismissal of Rainey’s false arrest claim, we vacate the dismissal of Rainey’s excessive force claim, and remand for further proceedings consistent with this opinion.

AFFIRMED in part, VACATED in part, and REMANDED.

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.