Brian Joshua Cook v. County of Los Angeles;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRIAN JOSHUA COOK,
Plaintiff-Appellant,
v.
COUNTY OF LOS ANGELES; et al.,
Defendants-Appellees.
No. 19-55961
D.C. No. 2:19-cv-02417-R-KS
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Submitted August 11, 2020 **
Pasadena, California
Before: WARDLAW and VANDYKE, Circuit Judges, and HILLMAN, ***
District Judge.
Brian Joshua Cook appeals from the district court’s judgment dismissing his
42 U.S.C. § 1983 action alleging claims for false arrest and excessive force. 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).
*** The Honorable Timothy Hillman, United States District Judge for the
District of Massachusetts, sitting by designation.
FILED
JAN 13 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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have jurisdiction under 28 U.S.C. § 1291. Our review is de novo. Lacey v.
Maricopa Cnty., 693 F.3d 896, 911 (9th Cir. 2012) (review of a district court’s
dismissal for failure to state a claim pursuant to Federal Rule of Civil Procedure
12(b)(6) is de novo). We affirm in part, reverse in part, and remand.
Relying on Heck v. Humphrey, 512 U.S. 477 (1994), the district court
dismissed Cook’s action after finding that success on his false arrest and excessive
force claims would necessarily imply the invalidity of his conviction for disturbing
the peace by fighting in a public place or challenging another to do so under
California Penal Code § 415(1). As to Cook’s false arrest claim, we agree that his
conviction necessarily arose from the conduct which led to his arrest (and could
not have been distinct from that conduct) and therefore, Heck bars this claim.
Accordingly, we affirm the district court’s dismissal of Cook’s false arrest claim.1
However, it is not clear from the face of the amended complaint or the fact
of Cook’s plea that success on his excessive force claim would necessarily call into
question the validity of his § 415(1) conviction for fighting or threatening to fight.
Unlike a § 148(a)(1) conviction for resisting arrest—where the “lawfulness of the
officer’s conduct is an essential element of the offense,” Hooper v. Cnty of San
1 We construe the district court’s dismissal of Cook’s false arrest claim to be
without prejudice to be brought again should he succeed in overturning his
conviction. See Washington v. Los Angeles Cnty. Sheriff’s Dep’t, 833 F.3d 1048,
1055 (9th Cir. 2016) (dismissal under Heck is made without prejudice as the
complaint may be refiled should the conviction be overturned).

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Diego, 629 F.3d 1127, 1130 (9th Cir. 2011)—a § 415(1) conviction for fighting or
threatening to fight could result from simply challenging someone else to a fight,
see In re Cesar V., 192 Cal. App. 4th 989, 998–99 (2011), regardless of whether
the challenged person was acting lawfully.2 As a result, we reverse the district
court’s dismissal of Cook’s excessive force claim and remand.3
The parties shall bear their own costs on appeal.
AFFIRMED in part, REVERSED in part, and REMANDED to the district
court for further proceedings consistent with this opinion.4
2 Cook was initially charged with resisting arrest in violation of California
Penal Code § 148(a)(1). This charge was dismissed and Cook pled no-contest to a
violation of California Penal Code § 415(1), pursuant to which it is a crime for a
person to “unlawfully fight[] in a public place or challenge[] another person in a
public place to fight.”
3 We emphasize that we are ruling only on a 12(b)(6) dismissal on the
pleadings. We intimate no view on the merits after the development of an
appropriate record and express no opinion on whether any particular allegation in
the complaint is consistent with Cook’s conviction.
4 Given the dismissal of his underlying constitutional claims, the district
court summarily dismissed Cook’s claim against the County of Los Angeles. See
Los Angeles v. Heller, 475 U.S. 796, 799 (2011) (where there is no underlying
constitutional violation, there can be no municipal liability under 42 U.S.C. § 1983
for that conduct). Accordingly, the dismissal of Cook’s claim for municipal
liability against the County based on unlawful custom, policy or practice relating
to his excessive force claim is vacated and the dismissal of his claim for municipal
liability against the County based on his false arrest claim is affirmed.

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