Joshua Rashid Radwan v. County of Orange

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOSHUA RASHID RADWAN,
Plaintiff - Appellant,
v.
COUNTY OF ORANGE; MICHAEL
CARONA; JAMES FOUSTE; MARK
KUNAR; MARK HERGESHEIMER;
MICHAEL PADILLA; MANUEL
GARCIA; CYRIL FOSTER; DAVID
HERNANDEZ; JARRETT KURIMAY;
MATTHEW PRINCE; IRA ESSOE;
SEAN HILLIARD,
Defendants - Appellees.
No. 11-56415
D.C. No. 8:08-cv-00786-AG-AN
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Andrew J. Guilford, District Judge, Presiding
Argued and Submitted May 6, 2013
Pasadena, California
FILED
MAY 21 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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The Honorable James S. Gwin, District Judge for the U.S. District**
Court for the Northern District of Ohio, sitting by designation.
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Before: PREGERSON and FISHER, Circuit Judges, and GWIN, District Judge.**
Plaintiff Joshua Radwan appeals the district court’s grant of summary judgment
on his 42 U.S.C. § 1983 unlawful search and seizure claim. Radwan says that Heck
v. Humphrey, 512 U.S. 477 (1984), does not bar this claim. Radwan also appeals the
jury’s verdict in the defendants’ favor on his § 1983 excessive force claim. He says
that the district court erred by allowing an in-court demonstration of the use of leg
irons; admonishing Radwan’s counsel in front of the jury; and allowing the defense
attorney to vouch for the defendant police officers. We have jurisdiction under 28
U.S.C. § 1291. We affirm.
1. The district court properly ruled that Heck bars Radwan’s § 1983 unlawful
search and seizure claim. We have repeatedly found Heck to bar § 1983 claims, even
where the plaintiff’s prior convictions were the result of guilty or no contest pleas.
See, e.g., Szajer v. City of Los Angeles, 632 F.3d 607 (9th Cir. 2011); Whitaker
v.Garcetti, 486 F.3d 572 (9th Cir. 2007); Guerrero v. Gates, 442 F.3d 697, 704 (9th
Cir. 2006). In his § 1983 suit, Radwan challenges the search and seizure of the
marijuana that formed the basis of his conviction for marijuana possession under
California Health and Safety Code § 11357(b). Were Radwan to succeed on his

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Heck also bars Radwan’s state-law false arrest claims because success on1
those claims would call into question the lawfulness of his prior conviction for
marijuana possession. See Yount v. City of Sacramento, 183 P.3d 471, 484 (Cal.
2008) (acknowledging that Heck “is a rule of federal law that applies only to
federal causes of action” but concluding that state law also bars a plaintiff from
prosecuting state law claims that would necessarily imply the invalidity of a prior
state conviction).
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§ 1983 search and seizure claim, such success would necessarily imply the invalidity
of his conviction for marijuana possession. Thus, Heck bars this claim.1
Moreover, even though Radwan could not pursue habeas corpus relief, Heck
bars his § 1983 search and seizure claim because he failed to meet Heck’s favorable
termination requirement due to his own lack of diligence. See Guerrero, 442 F.3d at
704-05; Cunningham v. Gates, 312 F.3d 1148, 1153 n.3 (9th Cir. 2002).
2. The district court did not abuse its discretion when it permitted the in-court
demonstration of the use of leg irons. The demonstration was directly relevant to a
disputed issue: whether the deputies safely could have checked, loosened, or removed
Radwan’s leg irons after he complained they were too tight. The demonstration was
not unduly prejudicial in light of its probative value and the limits the district court
properly placed on the demonstration.
3. The district court did not abuse its discretion when it admonished Radwan’s
counsel for showing a video montage with repetitive and potentially misleading video

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excerpts. See Pau v. Yosemite Park & Curry Co., 928 F.2d 880, 885 (9th Cir. 1991);
United States v. Bennett, 702 F.2d 833, 836 (9th Cir. 1983).
4. We do not decide whether the rule against vouching applies to civil trials
because, even if certain of defense counsel’s statements would constitute vouching,
any prejudice was dissipated by Radwan’s counsel’s objection, the court sustaining
the objection, and the court instructing the jury that attorneys are not permitted to
vouch and that attorney arguments do not constitute evidence. See Doe ex rel. Rudy-
Glanzer v. Glanzer, 232 F.3d 1258, 1270-71 (9th Cir. 2000).
AFFIRMED.

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