Ruben Briseno v. City of West Covina, a municipal entity;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RUBEN BRISENO,
Plaintiff-Appellant,
v.
CITY OF WEST COVINA, a municipal
entity; et al.,
Defendants-Appellees.
No. 22-55100
D.C. No. 2:20-cv-02986-MRW
MEMORANDUM*
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.
FILED
MAR 8 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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

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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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