NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 9 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ANDREW STEVEN STRONG, No. 19-15249

Plaintiff-Appellant, D.C. No. 2:18-cv-03137-DLR-JZB

v.

MEMORANDUM*

KYLE PETTENGELL, Tempe Police Officer #20942,

Defendant-Appellee.

Appeal from the United States District Court for the District of Arizona Douglas L. Rayes, District Judge, Presiding

Submitted June 2, 2020**

Before: LEAVY, PAEZ, and BENNETT, Circuit Judges.

Andrew Steven Strong appeals from the district court’s judgment dismissing

his 42 U.S.C. § 1983 action alleging an excessive force claim. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s

dismissal under 28 U.S.C. § 1915A. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir.

* 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). 2000). We vacate and remand.

The district court dismissed Strong’s action after finding that success on

Strong’s excessive force claim would necessarily imply the invalidity of his

conviction for resisting arrest, relying on Heck v. Humphrey, 512 U.S. 477 (1994),

and taking judicial notice of the fact that Strong pled guilty to resisting arrest with

physical force. However, it is not clear from the face of the complaint or the fact

of his guilty plea that his excessive force claim would necessarily call into question

the validity of his conviction, because the specific factual basis for his guilty plea

is not in the record. See Reese v. County of Sacramento, 888 F.3d 1030, 1046 (9th

Cir. 2018) (holding that without the specific factual basis for plaintiff’s prior

conviction for drawing, exhibiting, or using a firearm or deadly weapon, the court

could not determine if plaintiff’s excessive force claim would call into question the

validity of the conviction); Hooper v. City of San Diego, 629 F.3d 1127, 1133-34

(9th Cir. 2011) (explaining that a plaintiff’s claim that an arresting officer used

excessive force may coexist with a conviction for resisting a lawful arrest, when

the conviction and the excessive force claim are based on different actions). We

vacate the district court’s judgment and remand for further proceedings.

VACATED AND REMANDED.

2 19-15249