Steve Kassab v. San Diego Police Department, a municipal corporation;

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVE KASSAB,
Plaintiff - Appellant,
v.
SAN DIEGO POLICE DEPARTMENT, a
municipal corporation; et al.,
Defendants - Appellees.
No. 09-56653
D.C. No. 3:07-cv-01071-MMA-
WMC
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Michael M. Anello, District Judge, Presiding
Submitted September 27, 2011**
Before: SILVERMAN, W. FLETCHER, and MURGUIA, Circuit Judges.
Steve Kassab appeals pro se from the district court’s summary judgment in
his 42 U.S.C. § 1983 action alleging unlawful search and seizure, false arrest,
excessive force, and other claims. We have jurisdiction under 28 U.S.C. § 1291.
FILED
OCT 13 2011
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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We review de novo. Whitaker v. Garcetti, 486 F.3d 572, 579 (9th Cir. 2007). We
affirm in part, reverse in part, and remand.
The district court properly granted summary judgment on Kassab’s § 1983
claims concerning the searches of his store, his arrest, and his prosecution because
these claims are Heck-barred. See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994)
(a plaintiff cannot bring a § 1983 claim that necessarily implies the invalidity of a
conviction unless the conviction has been invalidated); see also Guerrero v. Gates,
442 F.3d 697, 704-05 (9th Cir. 2006) (claims implying the invalidity of plaintiff’s
convictions were Heck-barred even though plaintiff was no longer in custody).
The district court properly granted summary judgment on Kassab’s
excessive force claim alleging that defendant Nunez slammed a car door on his
knee because Kassab failed to create a genuine dispute of material fact as to
whether Nunez acted intentionally. See Brower v. County of Inyo, 489 U.S. 593,
596-97 (1989) (only intentional conduct can form the basis of a Fourth
Amendment violation).
The district court also granted summary judgment on Kassab’s excessive
force claim against the individual officers alleging that he was subjected to
excessive heat. The district court concluded that qualified immunity applied
because the force used was de minimus and because it was not clearly established

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09-56653 3
that the officers’ conduct violated the Fourth Amendment. However, in his
verified amended complaint and his declaration in opposition to summary
judgment, Kassab stated that he was detained in a police car for more than four
hours, with the windows rolled up, no air conditioning, and an interior temperature
of 115 degrees. According to his sworn statements, Kassab suffered from heat
stroke, had difficulty breathing, and almost passed out several times. These facts,
viewed in the light most favorable to Kassab, create a triable dispute as to whether
defendants used excessive force. See Boyd v. Benton County, 374 F.3d 773, 781
(9th Cir. 2004) (“[W]hen an officer’s conduct is so patently violative of the
constitutional right that reasonable officials would know without guidance from
the courts that the action was unconstitutional, closely analogous pre-existing case
law is not required to show that the law is clearly established.” (citation and
internal quotation marks omitted)); Jackson v. City of Bremerton, 268 F.3d 646,
651 & n.1 (9th Cir. 2001) (discussing factors for determining whether the force
used was excessive, and stating that the test for reasonableness is often a jury
question). Accordingly, we reverse summary judgment on Kassab’s claim as to the
individual officers and remand for further proceedings.
The district court properly granted summary judgment on Kassab’s
excessive force claims against the City of San Diego defendants because there was

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no underlying constitutional violation as to the car door incident, see Scott v.
Henrich, 39 F.3d 912, 916 (9th Cir. 1994), and Kassab failed to create a triable
dispute to as to whether the exposure to excessive heat was the product of a city
custom or practice or a failure to train, see Monell v. Dep’t of Soc. Servs., 436 U.S.
658, 690-91 (1978).
Kassab’s remaining contentions are unpersuasive.
We do not consider arguments or claims that were not raised before the
district court. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999).
All pending motion are denied.
Each party shall bear their own costs on appeal.
AFFIRMED in part, REVERSED in part, and REMANDED.

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