FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MORGAN SANDERS,

Plaintiff-Appellant,

v.

CITY OF PITTSBURG; THOMAS 

BRYAN, Pittsburg Police Officer; 

HULLEMEN, Antioch Police Officer 

#5322; HOPWOOD, Antioch Police 

Officer #5235,

Defendants-Appellees.

No. 19-16920

D.C. No.

3:18-cv-04326-

SK

OPINION

Appeal from the United States District Court

for the Northern District of California

Sallie Kim, Magistrate Judge, Presiding

Argued and Submitted September 15, 2020

Submission Vacated March 26, 2021

Resubmitted September 16, 2021 

San Francisco, California

Filed September 23, 2021

Before: J. Clifford Wallace, Bridget S. Bade, and

Patrick J. Bumatay, Circuit Judges.

Opinion by Judge Bumatay
2 SANDERS V. CITY OF PITTSBURG

SUMMARY*

Civil Rights

The panel affirmed the district court’s dismissal of a 

complaint, on the basis of Heck v. Humphrey, 512 U.S. 477 

(1994), brought pursuant to 42 U.S.C. § 1983 alleging police 

officers used excessive force when they deployed a police 

dog against plaintiff. 

After being spotted in a stolen car, plaintiff, Morgan 

Sanders, fled from the police. He led them on a car chase, a 

foot chase and then struggled after being tackled. During the 

scuffle, a police officer commanded a police dog to bite 

Sanders’s leg and Sanders was finally subdued and charged 

with, among other counts, resisting arrest under California 

Penal Code § 148(a)(1), which prohibits resisting, delaying 

or obstructing a police officer during the discharge of his 

duties. Sanders pleaded no contest to all the charges against 

him and stipulated that the factual basis for his plea was 

based on the preliminary hearing transcript. 

Under Heck, a § 1983 claim must be dismissed if a 

judgment in favor of the plaintiff would necessarily imply 

the invalidity of his conviction or sentence, unless the 

conviction or sentence has already been invalidated. The 

panel first stated that a defendant can’t be convicted under 

§ 148(a)(1) if an officer used excessive force at the time of 

the acts resulting in the conviction. Consequently, an 

excessive force claim can’t survive the Heck bar if it’s 

* This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
SANDERS V. CITY OF PITTSBURG 3

predicated on allegedly unlawful actions by the officer at the 

same time as the plaintiff’s conduct that resulted in his 

§ 148(a)(1) conviction. Moreover, Heck bars any § 1983 

claim alleging excessive force based on an act or acts 

constituting any part of the factual basis of a § 148(a)(1) 

conviction. 

The panel noted that the factual basis for Sanders’s plea 

was based on multiple acts of resisting arrest, including his

struggle with officers when the police dog bit him. The 

panel held that Sanders could not stipulate to the lawfulness 

of the dog bite as part of his § 148(a)(1) guilty plea and then 

use the very same act to allege an excessive force claim 

under § 1983. Success on such a claim would “necessarily 

imply” that his conviction was invalid. Sanders’s claim was, 

therefore, barred under Heck.

COUNSEL

Stanley C. Goff (argued), San Francisco, California, for 

Plaintiff-Appellant.

Noah G. Blechman (argued), McNamara Ney Beatty 

Slattery Borges & Ambacher LLP, Pleasant Hill, California, 

for Defendants-Appellees City of Pittsburg and Thomas 

Bryan.

Kevin P. Allen (argued) and Dale L. Allen Jr., Allen 

Glaessner Hazelwood & Werth LLP, San Francisco, 

California, for Defendants-Appellees Hulleman and 

Hopwood.
4 SANDERS V. CITY OF PITTSBURG

OPINION

BUMATAY, Circuit Judge:

After being spotted in a stolen car, Morgan Sanders fled 

from the police. He led them on a car chase. And then on a 

foot chase. An officer eventually caught up to Sanders. But 

he wasn’t arrested quietly. He continued to struggle. A 

police officer then commanded a police dog to bite Sanders’s 

leg. Sanders was finally subdued and charged with resisting 

arrest. As his case was working its way through the criminal 

justice system, Sanders filed a civil rights action alleging the 

use of the police dog was excessive force. The district court 

found his claims barred by Heck v. Humphrey, 512 U.S. 477 

(1994). We agree.

I.

In 2017, Sanders stole a car and fled from the police. The 

result was quite a chase: he sped 25 miles over the limit, ran 

several stoplights, and drove on the wrong side of the 

freeway. When police blocked the car, Sanders fled on foot. 

One of the officers, Officer Thomas Bryan, was working 

with a K-9 and warned Sanders that if he kept fleeing, he 

would “send the dog.” Eventually, Sanders was tackled by 

several officers in a gully. In the ensuing scuffle, while 

Sanders continued to struggle, Officer Bryan ordered the dog 

to bite Sanders’s right calf. After the bite, the officers 

successfully handcuffed and arrested Sanders.

Sanders was charged with, among other counts, 

misdemeanor resisting arrest under California Penal Code 

§ 148(a)(1). At the preliminary hearing, Officer Bryan 

testified that Sanders hindered efforts to arrest him by “first 

fleeing in the vehicle, then fleeing on foot, and then resisting 

officers attempting to arrest him.” The officer further 
SANDERS V. CITY OF PITTSBURG 5

testified that when he approached Sanders in the gully, “[he] 

could see that his legs were free, being that both Antioch 

cops were trying to apprehend one arm each, at which point 

in time [he] applied what is commonly referred to as a 

contact bite to the defendant’s right calf.” Several months 

later, Sanders pleaded no contest to all the charges against 

him, including the violation of § 148(a)(1). At the plea 

hearing, Sanders stipulated that the factual basis for his plea 

“is based on the preliminary hearing transcript.”

While Sanders’s criminal case was pending, he filed an 

action alleging a violation of his Fourth Amendment rights 

under 42 U.S.C. § 1983. Specifically, he alleged Officer 

Bryan’s use of the police dog was excessive. Sanders also 

sued the other officers at the scene and the City of Pittsburg. 

The City and officers jointly moved to dismiss Sanders’s 

complaint. The district court granted the motion, holding 

that Heck barred his claim against Officer Bryan and the 

claims against the other officers and the City failed as a 

result.

Sanders appealed to this court. We review Federal Rule 

of Civil Procedure 12(b)(6) dismissals de novo. DanielsHall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010).

II.

To avoid what’s called the Heck bar on an excessiveforce claim, a plaintiff must not imply an officer acted 

unlawfully during the events that form the basis of a 

resisting-arrest conviction under California Penal Code 

§ 148(a). Smith v. City of Hemet, 394 F.3d 689, 695 (9th Cir. 

2005) (analyzing the Heck bar for a § 148(a) conviction). 

Under Heck, a § 1983 claim must be dismissed if “a 

judgment in favor of the plaintiff would necessarily imply 

the invalidity of his conviction or sentence,” unless the 
6 SANDERS V. CITY OF PITTSBURG

conviction or sentence has already been invalidated. Heck, 

512 U.S. at 487. Thus, Heck bars a plaintiff’s action if it 

would negate an element of the offense, Smith, 394 F.3d 

at 695, or allege facts inconsistent with the plaintiff’s 

conviction, Beets v. Cnty. of Los Angeles, 669 F.3d 1038, 

1046 (9th Cir. 2012). By preventing collateral attacks on 

convictions by way of civil actions, the Heck bar furthers the 

principles of finality and consistency. Heck, 512 U.S. 

at 484–85.

Here, Sanders was charged with resisting arrest under 

§ 148(a)(1), which prohibits “resist[ing], delay[ing], or 

obstruct[ing]” a police officer during the discharge of his 

duties. Under California law, a conviction under this statute 

requires that the defendant’s obstructive acts occur while the 

officer is engaging in “the lawful exercise of his duties.” 

Smith, 394 F.3d at 695. The use of excessive force by an 

officer is not within the performance of the officer’s duty. 

Id. Thus, the “lawfulness of the officer’s conduct” is 

necessarily established as a result of a conviction under 

§ 148(a)(1). Hooper v. Cnty. of San Diego, 629 F.3d 1127, 

1130 (9th Cir. 2011). In other words, a defendant can’t be 

convicted under § 148(a)(1) if an officer used excessive 

force at the time of the acts resulting in the conviction.

Consequently, an excessive force claim can’t survive the 

Heck bar if it’s predicated on allegedly unlawful actions by 

the officer at the same time as the plaintiff’s conduct that 

resulted in his § 148(a)(1) conviction. See Smith, 394 F.3d 

at 695. Such an allegation would undermine the validity of 

the § 148(a)(1) conviction. On the other hand, if the alleged 

excessive force occurred before or after the acts that form 

the basis of the § 148(a) violation, even if part of one 

continuous transaction, the § 1983 claim doesn’t 
SANDERS V. CITY OF PITTSBURG 7

“necessarily imply the invalidity of [a] criminal conviction 

under § 148(a)(1).” Id. at 696; Hooper, 629 F.3d at 1134.

Sanders contends that his claim is not Heck-barred 

because his conviction could have been based on his fleeing 

officers prior to his arrest in the gully. Under that theory, 

success on his § 1983 claim would leave the conviction 

undisturbed since his act of resistance occurred before the 

dog bite and arrest. Sanders relies primarily on Hooper, 

which held that resisting arrest “does not lose its character as 

a violation of § 148(a)(1) if, at some other time during that 

same ‘continuous transaction,’ the officer uses excessive 

force or otherwise acts unlawfully.” 629 F.3d at 1132 

(quoting Yount v. City of Sacramento, 43 Cal. 4th 885, 901 

(2008)).

But Hooper’s holding does not help Sanders. In that 

case, Hooper engaged in multiple obstructive acts in one 

continuous transaction, but there was a clear delineation 

between lawful and unlawful police action. Hooper had first 

jerked her hand away from an officer trying to place her 

under arrest. Id. at 1129. She and the officer then struggled 

on the ground as the officer tried to get Hooper’s hands 

behind her back. Id. What followed was disputed, but 

Hooper claimed that, after she stopped resisting, the officer 

directed his K-9 to bite her on the head. Id. Hooper pleaded 

guilty to resisting arrest under § 148(a)(1) and later filed a 

§ 1983 excessive force claim based on the dog bite. Id.

Importantly, the record was silent on which act or acts 

formed the basis of her conviction. Thus, for purposes of 

summary judgment, we accepted Hooper’s contention that 

she had stopped resisting by the time of the dog bite. As a 

result, we could divide Hooper’s arrest into separate “factual 

contexts”: the lawful police action during the initial arrest 

attempt and struggle on the ground, and the unlawful police 
8 SANDERS V. CITY OF PITTSBURG

action when the officer ordered the dog bite. Id. at 1132–33. 

We allowed Hooper’s excessive force claim to proceed 

because Heck is no impediment “when the conviction and 

the § 1983 claim are based on different actions during ‘one 

continuous transaction.’” Id. at 1134. Hooper’s § 1983 

action could separately target one action—the allegedly 

unlawful dog bite—without disturbing the § 148(a)(1) 

conviction. Accordingly, Hooper merely holds that Heck

presents no bar to an excessive force claim when an officer’s 

allegedly unlawful action can be separated from the lawful

actions that formed the basis of the § 148(a)(1) conviction, 

even if they occurred during one continuous transaction.

Here, we cannot separate out which of Sanders’s 

obstructive acts led to his conviction since all of them did. 

As part of his guilty plea, Sanders stipulated that the factual 

basis for his conviction encompassed the three instances of 

resistance identified in the preliminary hearing transcript. 

Specifically, Officer Bryan testified that he ordered his dog 

to bite Sanders’s right calf as he observed other officers 

struggling to apprehend Sanders’s arms in the gully. So 

unlike Hooper, the dog bite in this case is unquestionably 

part of the actions that formed the basis of Sanders’s 

conviction. Under these facts, there is no way to carve out 

the dog bite from the § 148(a)(1) conviction without 

“necessarily imply[ing]” that the conviction was invalid. 

Heck, 512 U.S. at 487. Because the dog bite was part of the 

§148(a)(1) conviction’s factual basis, it was necessarily 

lawful for purposes of the Heck analysis.

And while Hooper held that a continuous transaction can 

be broken into “different actions” for purposes of a § 1983 

action, it did not suggest we may slice up the factual basis

of a § 148(a)(1) conviction to avoid the Heck bar. On the 

contrary, Yount—the case relied on by Hooper—specifically 
SANDERS V. CITY OF PITTSBURG 9

rejected this argument. In Yount, a § 1983 plaintiff 

attempted to avoid Heck by arguing that his § 148(a)(1) 

conviction could stand on any of his multiple acts of 

resistance, and “so long as one act of resistance remains 

undisturbed to support the criminal conviction, it is 

immaterial that success on the section 1983 claim might be 

inconsistent with other facts that supported the criminal 

conviction.” Yount, 43 Cal. 4th at 896. But the court 

soundly rejected that contention: “Yount’s conviction 

established his culpability during the entire episode with the 

four officers, and any civil rights claim that is inconsistent 

with even a portion of that conviction is barred because it 

would necessarily imply the invalidity of that part of the 

conviction.” Id. (emphasis added).1 Accordingly, Yount

found that the factual basis of a § 148(a)(1) conviction 

encompassing multiple acts is indivisible for purposes of 

avoiding a Heck bar. Id. at 895–96.

We follow the California Supreme Court’s interpretation 

of § 148(a)(1), see Hooper, 629 F.3d at 1132, and adopt its 

approach. Indeed, we have previously held that a jury 

conviction for § 148(a)(1) based on multiple acts of 

resistance necessarily means that “officers’ actions 

throughout the whole course of the defendant’s conduct” 

was necessarily found lawful and any action alleging 

excessive force based on those actions would be Heckbarred. Smith, 394 F.3d at 699 n.5. Similarly, Heck bars any 

§ 1983 claim alleging excessive force based on an act or acts 

1 The Yount trial court established the factual basis for Yount’s 

conviction by hearing testimony from eyewitnesses and taking judicial 

notice of documents from the criminal proceeding. Yount, 43 Cal. 4th 

at 892.
10 SANDERS V. CITY OF PITTSBURG

constituting any part of the factual basis of a § 148(a)(1) 

conviction.

In sum, we hold that Sanders cannot stipulate to the 

lawfulness of the dog bite as part of his § 148(a)(1) guilty 

plea and then use the “very same act” to allege an excessive 

force claim under § 1983. Id. Success on such a claim 

would “necessarily imply” that his conviction was invalid. 

Heck, 512 U.S. at 487. Sanders’s claim against Officer 

Bryan is, therefore, barred under Heck.

2

III.

The factual basis for Sanders’s plea was based on 

multiple acts of resisting arrest, including his struggle with 

officers when the K-9 bit him. Because a favorable 

judgment on his § 1983 claim would necessarily call into 

2 At oral argument, Sanders argued for the first time that Officer 

Bryan ordered a further dog bite after he was handcuffed by the other 

officers. Sanders’s complaint fails to allege any dog bite or continued 

dog bite after he was handcuffed. Because this specific contention was 

not raised in briefing or his complaint and the City and officers had no 

meaningful opportunity to respond to the new allegation, we treat this 

argument as waived. Wood v. Hall, 130 F.3d 373, 377 (9th Cir. 1997)

(“Arguments raised for the first time at oral argument are generally 

waived.”). We also affirm the dismissal of Sanders’s remaining claims 

for integral participation, failure to intervene, and Monell liability. 

Although the district court dismissed the claims because they were 

predicated on the Heck-barred claim, Sanders neglected to raise those

claims on appeal. See United States v. Kama, 394 F.3d 1236, 1238 (9th 

Cir. 2005) (“Generally, an issue is waived when the appellant does not 

specifically and distinctly argue the issue in his or her opening brief.”).
SANDERS V. CITY OF PITTSBURG 11

question the validity of his conviction, we affirm the 

dismissal of his claims.

AFFIRMED.