MEMORANDUM ***
Brian Joshua Cook appeals from the district courts judgment dismissing his 42 U.S.C. § 1983 action alleging claims for false arrest and excessive force. We 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 courts 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, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), the district court dismissed Cooks 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 Cooks 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 courts dismissal of Cooks false arrest claim.
1
However, it is not clear from the face of the amended complaint or the fact of Cooks 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 officers conduct is an essential element of the offense,” Hooper v. Cnty. of San 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, 122 Cal.Rptr.3d 206 (2011), regardless of whether the challenged person was acting lawfully.
2
As a result, we reverse the district courts dismissal of Cooks 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
FOOTNOTES
1
. We construe the district courts dismissal of Cooks false arrest claim to be without prejudice to be brought again should he succeed in overturning his conviction. See Washington v. Los Angeles Cnty. Sheriffs Dept, 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).
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 Cooks conviction.
4
. Given the dismissal of his underlying constitutional claims, the district court summarily dismissed Cooks claim against the County of Los Angeles. See Los Angeles v. Heller, 475 U.S. 796, 799, 106 S.Ct. 1571, 89 L.Ed.2d 806 (1986) (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 Cooks 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.