Murillo-Contreras v. Pittman

58 F. App'x 750

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 18, 2003
• Docket: No. 02-15838; D.C. No. CV-99-0616-JMR
• Status: Published

Opinion

MEMORANDUM

**

Federal prisoner Jesus Gerardo Murillo-Contreras appeals pro se the district court’s judgment dismissing his Bivens action, alleging, inter alia, the defendants used excessive force during his arrest in violation of the Fourth Amendment. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Jackson v. City of Bremerton, 268 F.3d 646, 650 (9th Cir.2001), and we affirm.

Murillo-Contreras contends that his arrest constituted kidnaping, endangerment and unlawful detention by the defendants. The district court properly dismissed these claims without prejudice because success on the merits would necessarily imply the invalidity of Murillo-Contreras’ conviction. See Cabrera v. City of Huntington Park, 159 F.3d 374, 380 (9th Cir.1998) (per curiam) (citing Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994)); see also Beezley v. Fremont Indem. Co., 804 F.2d 530, 530 n. 1 (9th Cir.1986) (per curiam) (noting that the court may affirm on any basis fairly supported by the record).

Murillo-Contreras next contends that the district court did not consider the merits of defendants’ summary judgment motion and improperly based its ruling on his failure to file a timely response. The record belies this contention. Even though Murillo-Contreras did not file a response to defendants’ motion for summary judgment, the district court considered the evidence in the light most favorable to him and addressed at length the merits of the motion.

The district court properly concluded that the defendants are entitled to qualified immunity because Murillo-Contreras presented no evidence showing that the defendants’ use of force during his arrest was objectively unreasonable under the circumstances. See Jackson, 268 F.3d at 651-53 (applying reasonableness analysis to conclude that officers did not use excessive force).

AFFIRMED.¹

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

1 . We grant Murillo-Contreras' motion to file a late reply brief but we find the arguments lacking in merit.