facts sufficient to show that a policy or custom of the county resulted in a

constitutional violation. See Castro v. County of Los Angeles, 833 F.3d 1060, 1075

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).

2 20-15225 (9th Cir. 2016) (en banc) (municipal liability requires “direct causal link” between

a municipal policy or custom and the alleged constitutional deprivation).

The district court properly dismissed Nuñez’s deliberate indifference, due

process, and search and seizure claims as Heck-barred because success on these

claims would necessarily imply the invalidity of his conviction or sentence, and

Nuñez has not demonstrated that his conviction has been invalidated. See Heck,

512 U.S. at 487 (if “a judgment in favor of the plaintiff would necessarily imply

the invalidity of his conviction or sentence . . . the complaint must be dismissed

unless the plaintiff can demonstrate that the conviction or sentence has already

been invalidated”); Thornton v. Brown, 757 F.3d 834, 842 (9th Cir. 2013) (“[A]

prisoner may challenge the fact or duration of imprisonment only through a habeas

proceeding.” (citation and internal quotation marks omitted)).

The district court properly dismissed Nuñez’s equal protection claim

because Nuñez failed to allege facts sufficient to show that defendants

discriminated against him because of his race. See Hartmann v. Cal. Dep’t of

Corrs. & Rehab., 707 F.3d 1114, 1123 (9th Cir. 2013) (“To prevail on an Equal

Protection claim brought under § 1983, [plaintiff] must allege facts plausibly

showing that the defendants acted with an intent or purpose to discriminate against

[him] based upon membership in a protected class.” (citations and internal

quotation marks omitted)); Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010)

3 20-15225 (although pro se pleadings are to be liberally construed, a plaintiff must allege facts

sufficient to state a plausible claim).

The district court dismissed Nuñez’s excessive force claim because Nuñez

did not allege whether defendants knew if he was unarmed or otherwise posed a

threat to them. However, Nuñez alleged that during a traffic stop for a non-violent

offense, defendants pointed their weapons at him even though he had complied

with their orders. Liberally construed, these allegations are sufficient to warrant

ordering defendants to file an answer. See Green v. City & County of San

Francisco, 751 F.3d 1039, 1049 (9th Cir. 2014) (setting forth elements for claim of

excessive force during arrest); Hopkins v. Bonvicino, 573 F.3d 752, 776 (9th Cir.

2009) (concluding excessive force was used where an officer pointed a weapon at a

cooperative, unarmed suspect and did not holster the weapon until after the suspect

was handcuffed, and where the officers outnumbered the suspect). We therefore

vacate the district court’s dismissal of Nuñez’s excessive force claim only and

remand for further proceedings.

The Clerk will file the opening brief submitted at Docket Entry No. 9.

Nuñez’s motion for appointment of counsel (Docket Entry No. 6) and

motion to provide cell phone numbers (Docket Entry No. 12) are denied.

AFFIRMED in part; VACATED in part; and REMANDED.

4 20-15225