Michael E. Heilbrun v. City of Portland;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL E. HEILBRUN,
Plaintiff-Appellant,
v.
CITY OF PORTLAND; et al.,
Defendants-Appellees.
No. 16-35640
D.C. No. 3:16-cv-01052-SI
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Submitted September 26, 2017**
Before: SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges.
Michael E. Heilbrun, an Oregon state prisoner, appeals pro se from the
district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging federal
and state law claims. We review de novo a dismissal under Heck v. Humphrey,
512 U.S. 477 (1994). Whitaker v. Garcetti, 486 F.3d 572, 579 (9th Cir. 2007). We
* 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
OCT 4 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2 16-35640
affirm in part, vacate in part, and remand.
To the extent that Heilbrun alleged that he was wrongfully convicted of
parole violations, the district court properly dismissed these claims as Heck-barred
because success on these claims would necessarily imply the invalidity of
Heilbrun’s conviction and sentence. See Heck, 512 U.S. at 486-87 (explaining that
if “a judgment in favor of the plaintiff would necessarily imply the invalidity of his
conviction or sentence . . . the complaint must be dismissed unless the plaintiff can
demonstrate that the conviction or sentence has already been invalidated”).
However, as to the remaining claims, the district court did not address
Heilbrun’s allegations in his verified complaint that adverse side effects from pain
medication and failure to install safety measures resulted in his back injury, and
that he was administered medication without his informed consent. See DeShaney
v. Winnebago Cty. Dep’t of Soc. Servs., 489 U.S. 189, 200 (1989) (explaining that
the state has a duty to provide inmates with “basic human needs,” including
medical care and “reasonable safety”); Johnson v. Meltzer, 134 F.3d 1393, 1397
(9th Cir. 1998) (“[D]ue process requires that if a doctor gives a drug to an inmate
without his consent, the drug must be medically appropriate.”). We vacate the
judgment in part, and remand for the district court to consider these allegations in

-- 2 of 3 --

3 16-35640
the first instance, and to determine whether leave to amend would be appropriate.
See Lucas v. Dep’t of Corr., 66 F.3d 245, 248 (9th Cir. 1995) (“[A] pro se litigant
is entitled to notice of the complaint’s deficiencies and an opportunity to amend
prior to dismissal of the action.”).
AFFIRMED in part, VACATED in part, and REMANDED.

-- 3 of 3 --