NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS MAR 8 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RUBEN BRISENO, No. 22-55100

Plaintiff-Appellant, D.C. No. 2:20-cv-02986-MRW

v.

MEMORANDUM*

CITY OF WEST COVINA, a municipal entity; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Michael R. Wilner, Magistrate Judge, Presiding

Argued and Submitted February 15, 2023 University of San Diego

Before: McKEOWN, OWENS, and BUMATAY, Circuit Judges.

After pleading no contest to resisting arrest, Ruben Briseno brought an

excessive force claim against his arresting officers and the City of West Covina

under 42 U.S.C. § 1983. The district court entered summary judgment for the

defendants, ruling that Briseno’s claim was barred by Heck v. Humphrey, 512 U.S.

477 (1994). Reviewing de novo, Suzuki Motor Corp. v. Consumers Union of the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. U.S., Inc., 330 F.3d 1110, 1131 (9th Cir. 2003), we affirm.

1. Briseno’s excessive force claim is Heck-barred. Under Heck, when

“judgment in favor of the plaintiff would necessarily imply the invalidity of his

conviction or sentence . . . the complaint must be dismissed[.]” 512 U.S. at 487. In

his criminal proceeding, Briseno pled no contest to resisting a peace officer under

Cal. Penal Code § 148(a)(1). And under California law, “[t]he lawfulness of the

officer’s conduct is an essential element of the offense under § 148(a)(1).” Hooper

v. Cnty. of San Diego, 629 F.3d 1127, 1130 (9th Cir. 2011). So, Heck precludes

Briseno from bringing an excessive force claim “predicated on allegedly unlawful

actions by the officer at the same time as the plaintiff’s conduct that resulted in his

§ 148(a)(1) conviction.” Sanders v. City of Pittsburg, 14 F.4th 968, 971 (9th Cir.

2021). Briseno’s arresting officers were entitled to summary judgment on the

lawfulness of the force they used during the arrest.

2. We affirm the district court’s refusal to consider Briseno’s unpled theory

that the officers used excessive force after handcuffing him. At the summary

judgment stage, Briseno sought to overcome Heck by arguing that the officers

continued to beat him after he was placed in handcuffs. But this theory appears

nowhere in Briseno’s complaint. “[S]ummary judgment is not a procedural second

chance to flesh out inadequate pleadings.” Wasco Prods., Inc. v. Southwall Techs,

Inc., 435 F.3d 989, 992 (9th Cir. 2006) (citation omitted). Briseno “may not

2 effectively amend [his] [c]omplaint by raising a new theory . . . in [] response to a

motion for summary judgment.” La Asociacion de Trabajadores de Lake Forest v.

City of Lake Forest, 624 F.3d 1083, 1089 (9th Cir. 2010). Because Briseno’s

argument about use of excessive force after handcuffing was not adequately

presented below, we do not reach whether this theory, properly pled, could survive

the Heck bar.

AFFIRMED.

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