NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS SEP 14 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SAMUEL CALHOUN ARRINGTON, No. 16-56755 individually, and through his next best friend, AURELIA CLEO BATTLE, D.C. No. 2:12-cv-04698-GW-AGR Plaintiff-Appellant,

v. MEMORANDUM*

CITY OF LOS ANGELES; DANIEL

PENNINGTON; RUSS GRAYBILL;

JOHNATHAN JORDAN; CHRISTIAN

ARRUE; ERIC OLIVE; DOES, 1-10,

inclusive,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California George H. Wu, District Judge, Presiding

Argued and Submitted September 13, 2019 Pasadena, California

Before: BERZON, R. NELSON, and BADE, Circuit Judges.

Plaintiff Samuel Arrington appeals the district court’s dismissal of his false

arrest and false imprisonment claim against the City of Los Angeles and five Los

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Angeles Police Department officers (collectively, “defendants”). Additionally,

Arrington asserts that during the trial on his excessive force claim against

defendants, the district court improperly instructed the jury regarding Arrington’s

nolo contendere plea to resisting, delaying, or obstructing arrest. Finally, Arrington

challenges the district court’s grant of judgment as a matter of law on his Bane Act

claim. We affirm the judgment in all respects.

1. The district court correctly held that under Heck v. Humphrey, 512

U.S. 477 (1994), Arrington’s conviction under California Penal Code section

148(a)(1) for resisting, delaying, or obstructing an officer precludes his claim

under 42 U.S.C. § 1983 for false arrest and false imprisonment. As a matter of

California law, Arrington’s conviction on a section 148(a)(1) charge establishes

both that defendants had a lawful basis for, at a minimum, detaining Arrington to

investigate whether he was the person reported to have committed a battery, and

also that defendants had a lawful basis for ultimately arresting him. See Smith v.

City of Hemet, 394 F.3d 689, 695 (9th Cir. 2005) (en banc) (noting that “[i]n

California, the lawfulness of the officer’s conduct is an essential element of the

offense of resisting, delaying, or obstructing a peace officer”). Success on

Arrington’s false arrest and false imprisonment claim “would necessarily imply the

invalidity of his conviction.” Heck, 512 U.S. at 487. That claim is therefore barred

by Heck. See Smithart v. Towery, 79 F.3d 951, 952 (9th Cir. 1996) (per curiam);

2 Guerrero v. Gates, 442 F.3d 697, 703–05 (9th Cir. 2006); Cabrera v. City of

Huntington Park, 159 F.3d 374, 380 (9th Cir. 1998) (per curiam).

That Arrington’s conviction is based on a nolo contendere plea rather than a

guilty plea or jury verdict does not change the Heck analysis with regard to the

false arrest and false imprisonment claim. See Smithart, 79 F.3d at 952.

Arrington’s conviction was not admitted “against” him as an evidentiary

admission. Fed. R. Evid. 410. The Heck issue was decided as a matter of law by

the district court—properly so, as the legal consequences of the conviction

preclude him from having a cognizable section 1983 claim for false arrest and false

imprisonment under Heck. See 512 U.S. at 487.

2. Although Arrington now challenges the district court’s instruction to

the jury regarding his nolo contendere plea and conviction, he did not object to the

instruction when the district court gave him an opportunity to do so. In the absence

of a timely objection under Federal Rule of Civil Procedure 51(c), we review a

challenge to jury instructions for plain error. C.B. v. City of Sonora, 769 F.3d 1005,

1016 (9th Cir. 2014) (en banc). We consider “whether (1) there was an error; (2)

the error was obvious; and (3) the error affected substantial rights.” Id. at 1018

(citations omitted). Ordinarily, an error affects substantial rights if “it affected the

outcome of the district court proceedings.” United States v. Lapier, 796 F.3d 1090,

1096 (9th Cir. 2015) (quoting United States v. Marcus, 560 U.S. 258, 262 (2010)).

3 Here, we need not resolve the question whether the instruction was

erroneous because we conclude that any error did not affect Arrington’s substantial

rights. Arrington himself introduced his plea and conviction repeatedly, both in his

opening statement and on direct examination. Additionally, Arrington’s case

depended almost entirely on his credibility. Arrington’s own testimony severely

undermined his credibility because it was inconsistent with both the testimony of

his witnesses and his prior deposition testimony. For example, Arrington testified

that there were “about 10, 12 police cars, at least, chasing me, trying to run me

over,” while one of his witnesses testified that there were two police cars on the

scene. Finally, Arrington’s counsel argued in closing that Arrington disobeyed

Sergeant Graybill’s lawful order to stop by getting on his bicycle and riding away,

and suggested that that was the incident that gave rise to Arrington’s plea. The jury

instruction, which indicated that Arrington had unlawfully resisted, delayed, or

obstructed the officers at some point during the encounter but did not specify when

or how he had done so, was therefore consistent with Arrington’s theory of the

case and could not have prejudiced him.

Arrington has not demonstrated any realistic possibility that, had the

instruction not been given, the jury would have believed his version of events and

4 found that the officers had used excessive force.1 See id.

3. Defendants concede that the district court’s grant of judgment as a

matter of law on Arrington’s claim under the Bane Act, California Civil Code

section 52.1, was in error, as it was based on an analysis that has since been

abrogated by Ninth Circuit precedent. See Reese v. County of Sacramento, 888

F.3d 1030, 1043 (9th Cir. 2018) (citing Cornell v. City & County of San Francisco,

17 Cal. App. 5th 766, 799 (2017)). We agree with defendants that the error was

harmless, as the Bane Act claim was based on the same facts as the excessive force

claim, and the jury found for defendants on the excessive force claim. The jury

could not have found for defendants on the excessive force claim and for Arrington

on the Bane Act claim. See Reynolds v. County of San Diego, 84 F.3d 1162, 1170–

71 (9th Cir. 1996), overruled on other grounds by Acri v. Varian Assocs., Inc., 114

F.3d 999 (9th Cir. 1997); see also Chaudhry v. City of Los Angeles, 751 F.3d 1096,

1105 (9th Cir. 2014) (stating that the “elements of the excessive force claim under

§ 52.1 are the same as under § 1983” (citation omitted)). The district court’s failure

to submit the Bane Act claim to the jury was therefore harmless. See Fuller v. City

1 To the extent Arrington has also asserted evidentiary error based on the admission of the nolo contendere plea, any such error does not warrant reversal because we discern no prejudice in light of Arrington’s repeated references to the plea. See Boyd v. City & County of San Francisco, 576 F.3d 938, 949–50 (9th Cir. 2009) (explaining that evidentiary error did not warrant reversal because “it is more probable than not that the jury would have” reached the same verdict regardless of the evidentiary error).

5 of Oakland, 47 F.3d 1522, 1533 (9th Cir. 1995), as amended (Apr. 24, 1995).

AFFIRMED.

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