
    Latrice McFARLAND, Plaintiff—Appellant, v. CITY AND COUNTY OF SAN FRANCISCO, et al., Defendants—Appellees.
    No. 01-16576.
    D.C. No. CV-00-2878-MMC.
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted July 9, 2002.
    Decided Aug. 5, 2002.
    Before CANBY and RYMER, Circuit Judges, and BERTELSMAN, District Judge.
    
      
       The Honorable William O. Bertelsman, Senior United States District Judge for the Eastern District of Kentucky, sitting by designation.
    
   MEMORANDUM

Appellant Latrice McFarland appeals the district court’s grant of partial judgment on the pleadings to the appellees under Rule 12(c) of the Federal Rules of Civil Procedure. McFarland filed a 42 U.S.C. § 1983 action in federal court based on allegations of constitutional violations under color of law for excessive force used during a body cavity search. The district court held that McFarland’s federal claims were barred under Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), and her state law claims were dismissed without prejudice. We have jurisdiction under 28 U.S.C. § 1291 and we reverse.

In Heck the United States Supreme Court held that a 42 U.S.C. § 1983 action that would call into question the lawfulness of a plaintiffs conviction or confinement is not cognizable, and does not accrue unless the plaintiff can prove that her conviction has been reversed or otherwise overturned in appropriate proceedings directed toward that end. This Court followed Heck in Harvey v. Waldron, 210 F.3d 1008 (9th Cir.2000), and the district court relied heavily on Harvey to dismiss McFarland’s claims.

We conclude that neither Heck nor Harvey are implicated in McFarland’s case because her conviction was based on a guilty plea. Instead, we find that Ove v. Gwinn, 264 F.3d 817 (9th Cir.2001) controls our decision in this matter. In Ove this Court held that a conviction based on a guilty plea was not barred by Heck. Ove, 264 F.3d at 823.

Further, in Ove, 264 F.3d at 823, which involved blood evidence, this Court noted the issue in that case revolved around the manner in which the blood was drawn. Thereafter, this Court compared the facts in Ove to our decision in Smithart v. Towery, 70 F.3d 951, 952 (9th Cir.1996), wherein we allowed claims for excessive force used during an arrest to survive a Heck analysis. Relying on Smithart, we held that the district court erred in ruling that Heck barred the claims in Ove.

Likewise in the present case, McFarland’s claims are based on the manner in which the evidence was seized during the search. Her § 1983 claims are based on excessive force being used diming the body cavity search, not on the underlying validity of the search. Based on Ove, we hold that the present action does not have the possibility of undermining McFarland’s conviction. Therefore, the district court erred in granting partial judgment on the pleadings to appellees.

REVERSED. 
      
       This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Circuit Rule 36-3.
     