Driessen v. Tehama County

125 F. App'x 178

Opinion

MEMORANDUM

**

Kenneth Driessen appeals pro se the district court’s judgment dismissing his 42 U.S.C. § 1983 action arising out of his arrest for transporting marijuana. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo dismissals for failure to state a claim. Ramirez v. Galaza, 334 F.3d 850, 853 (9th Cir.2003). We affirm in part, and vacate and remand in part.

We agree with the district court that Driessen’s constitutional challenge to marijuana laws, and illegal search and unreasonable arrest claims, are barred by Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), because a judgment in Driessen’s favor on these claims would necessarily impugn the validity of his guilty plea conviction, and Driessen failed to allege that his conviction has been invalidated. See id. at 486-87.

However, the district court improperly dismissed Driessen’s excessive force claim because success on the merits of this claim would not necessarily imply or demonstrate that Driessen’s earlier conviction was invalid. See Smith v. City of Hemet, 394 F.3d 689, 699 (9th Cir.2005) (en banc).

Accordingly, we vacate and remand for further proceedings on Driessen’s excessive force claim, and affirm the district court’s dismissal of the remaining claims.

We decline to consider Dreissen’s contentions regarding issues he raised for the first time on appeal. See Jiminez v. Rice, 276 F.3d 478, 481 (9th Cir.2001).

Appellee City of Coming’s November 10, 2004 motion to supplement the record and its request for judicial notice are granted.

Appellee County of Tehama’s November 12, 2004 motion to strike documents in the excerpts of record is denied.

Each party shall bear its own costs on appeal.

AFFIRMED in part, VACATED and REMANDED in part.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.