James H. Hayes v. City of Las Vegas

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES H. HAYES,
Plaintiff-Appellant,
v.
CITY OF LAS VEGAS; CLARK COUNTY;
MIRAGE HOTEL AND CASINO/MGM;
JAMES MCGROTH; STEVE WOLFSON;
JOSEPH LOMBARDO, Sheriff,
Defendants-Appellees.
No. 22-15617
D.C. No. 2:20-cv-02122-RFB-BNW
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Richard F. Boulware II, District Judge, Presiding
Submitted August 15, 2023**
Before: TASHIMA, S.R. THOMAS, and FORREST, Circuit Judges.
James H. Hayes appeals pro se from the district court’s judgment dismissing
his 42 U.S.C. § 1983 action alleging federal and state law claims arising out of his
arrest and prosecution. We have jurisdiction under 28 U.S.C. § 1291. We review
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
AUG 18 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 22-15617
de novo. Watison v. Carter, 668 F.3d 1108, 1112 (9th Cir. 2012) (dismissal under
28 U.S.C. § 1915(e)(2)(B)(ii)); Whitaker v. Garcetti, 486 F.3d 572, 579 (9th Cir.
2007) (dismissal under Heck v. Humphrey, 512 U.S. 477 (1994)). We vacate and
remand.
The district court found Hayes’s action to be Heck-barred after taking
judicial notice of the fact that Hayes was adjudicated guilty for disorderly conduct
in connection with his January 26, 2019 arrest for attempted burglary. However,
we are unable to determine, on this record, whether Hayes’s action is Heck-barred.
Nothing in the current record shows how Hayes’s conviction for disorderly
conduct came about or the factual bases underlying the conviction. See Lemos v.
County of Sonoma, 40 F.4th 1002, 1006-07 (9th Cir. 2022) (en banc) (to “decide
whether success on a section 1983 claim would necessarily imply the invalidity of
a conviction, we must determine which acts formed the basis for the conviction”
and analyze whether the § 1983 claim negates an element of the convicted
offense). We therefore vacate the district court’s judgment and remand for further
proceedings. Because we vacate the judgment, we do not consider Hayes’s
challenge to the district court’s order denying reconsideration.
Hayes’s request for appointment of counsel (Docket Entry No. 6) and
motion to admit exhibits (Docket Entry No. 9) are denied.
VACATED and REMANDED.

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