Adam Robert Nuñez v. Pinal County Sheriff's Office, a municipal corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ADAM ROBERT NUÑEZ,
Plaintiff-Appellant,
v.
PINAL COUNTY SHERIFF'S OFFICE, a
municipal corporation; RUSTY
FERNANDO, #2259 Officer with Pinal
County Sheriff Department, UNKNOWN
PARTIES, named as three other G.O.S.T.
unit officers, public law enforcement
officers, Pinal County Sheriff/Casa Grande
City,
Defendant-Appellees,
and
CITY OF CASA GRANDE, A Municipal
Corporation; et al.,
Defendants.
No. 20-15225
D.C. No. 2:19-cv-02865-JAT-DMF
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, District Judge, Presiding
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
FEB 22 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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2 20-15225
Submitted February 17, 2021**
Before: FERNANDEZ, BYBEE, and BADE, Circuit Judges.
Arizona state prisoner Adam Robert Nuñez appeals pro se from the district
court’s judgment dismissing his 42 U.S.C. § 1983 action alleging constitutional
claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.
Wilhelm v. Rotman, 680 F.3d 1113, 1118 (9th Cir. 2012) (dismissal for failure to
state a claim under 28 U.S.C. § 1915A); Whitaker v. Garcetti, 486 F.3d 572, 579
(9th Cir. 2007) (dismissal under Heck v. Humphrey, 512 U.S. 477 (1994)). We
affirm in part, vacate in part, and remand.
The district court properly dismissed Nuñez’s claims against the Pinal
County Sheriff’s Department because it is not a proper party to this action. See
Melendres v. Arpaio, 784 F.3d 1254, 1260 (9th Cir. 2015) (explaining that under
Arizona law, a county sheriff’s office lacks separate legal status from the county
and cannot be sued in its own name). To the extent Nuñez intended to allege these
claims against Pinal County, dismissal was proper because Nuñez failed to allege
facts sufficient to show that a policy or custom of the county resulted in a
constitutional violation. See Castro v. County of Los Angeles, 833 F.3d 1060, 1075
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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3 20-15225
(9th Cir. 2016) (en banc) (municipal liability requires “direct causal link” between
a municipal policy or custom and the alleged constitutional deprivation).
The district court properly dismissed Nuñez’s deliberate indifference, due
process, and search and seizure claims as Heck-barred because success on these
claims would necessarily imply the invalidity of his conviction or sentence, and
Nuñez has not demonstrated that his conviction has been invalidated. See Heck,
512 U.S. at 487 (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”); Thornton v. Brown, 757 F.3d 834, 842 (9th Cir. 2013) (“[A]
prisoner may challenge the fact or duration of imprisonment only through a habeas
proceeding.” (citation and internal quotation marks omitted)).
The district court properly dismissed Nuñez’s equal protection claim
because Nuñez failed to allege facts sufficient to show that defendants
discriminated against him because of his race. See Hartmann v. Cal. Dep’t of
Corrs. & Rehab., 707 F.3d 1114, 1123 (9th Cir. 2013) (“To prevail on an Equal
Protection claim brought under § 1983, [plaintiff] must allege facts plausibly
showing that the defendants acted with an intent or purpose to discriminate against
[him] based upon membership in a protected class.” (citations and internal
quotation marks omitted)); Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010)

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4 20-15225
(although pro se pleadings are to be liberally construed, a plaintiff must allege facts
sufficient to state a plausible claim).
The district court dismissed Nuñez’s excessive force claim because Nuñez
did not allege whether defendants knew if he was unarmed or otherwise posed a
threat to them. However, Nuñez alleged that during a traffic stop for a non-violent
offense, defendants pointed their weapons at him even though he had complied
with their orders. Liberally construed, these allegations are sufficient to warrant
ordering defendants to file an answer. See Green v. City & County of San
Francisco, 751 F.3d 1039, 1049 (9th Cir. 2014) (setting forth elements for claim of
excessive force during arrest); Hopkins v. Bonvicino, 573 F.3d 752, 776 (9th Cir.
2009) (concluding excessive force was used where an officer pointed a weapon at a
cooperative, unarmed suspect and did not holster the weapon until after the suspect
was handcuffed, and where the officers outnumbered the suspect). We therefore
vacate the district court’s dismissal of Nuñez’s excessive force claim only and
remand for further proceedings.
The Clerk will file the opening brief submitted at Docket Entry No. 9.
Nuñez’s motion for appointment of counsel (Docket Entry No. 6) and
motion to provide cell phone numbers (Docket Entry No. 12) are denied.
AFFIRMED in part; VACATED in part; and REMANDED.

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