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NOT FOR PUBLICATION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

2 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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