NOT FOR PUBLICATION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
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).
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) 
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.