Opinion
No. CV 10-03178-JHN (VBK)
06-15-2011
VICTOR SHAWN BROWN, Plaintiff, v. C. L. THAMES, et al., Defendants.
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This Report and Recommendation is submitted to the Honorable Jacqueline H. Nguyen, United States District Judge, pursuant to 28 U.S.C. §636 and General Order 05-07 of the United States District Court for the Central District of California.
PROCEEDINGS
On May 11, 2010, Victor Shawn Brown (hereinafter referred to as "Plaintiff") filed a civil rights complaint pursuant to 42 U.S.C. §1983 against Defendants Palmdale Sheriff Deputies J. Roth ("Roth") and C. L. Thames ("Thames"). On May 27, 2010, pursuant to an Order Directing Service of Process by the United States Marshal, Defendants were served with a Summons and Complaint. On September 30, 2010, Defendants Roth and Thames filed an Answer to the Complaint.
On November 9, 2010, Defendants Roth and Thames filed a "Notice of Motion and Motion for Judgment on the Pleadings; Memorandum of Law;" and "[Proposed] Order Granting Defendants' Motion for Judgment on the Pleadings." On November 16, 2010, the Court issued a Minute Order vacating the hearing date on Defendants' Motion and ordered Plaintiff to file an Opposition or Statement of Non-Opposition to Defendants' Motion for Judgment on the Pleadings within 30 days.
On November 29, 2010, Plaintiff filed a document entitled "Plaintiff's Objections/Opposition and Response to Defendants' Motion for Judgment on the Pleadings."
On December 2, 2010, Defendants filed a document entitled "Defendants J. Roth and C. L. Thames' Reply to Plaintiff's Opposition to Defendants' Motion for Judgment on the Pleadings."
On December 13, 2010, Plaintiff filed "Plaintiff's Objection to Defendants J. Roth and C. L. Thames' Reply to Plaintiff's Opposition to Defendants' Motion for Judgment on the Pleadings." Plaintiff also filed a "Request for Judicial Notice."
On December 14, 2010, Defendants Roth and Thames filed a "Reply to Plaintiff's Objection to Defendants' Reply to Plaintiff's Opposition to Defendants' Motion for Judgment on the Pleadings and Objection to Plaintiff's Request for Judicial Notice."
PLAINTIFF'S COMPLAINT
On December 22, 2008, Defendants Deputies Roth and Thames responded to a vandalism call involving the Plaintiff. (Complaint at p. 5, lines 2-4.) Upon contact with the Plaintiff, the Defendants discovered that Plaintiff had an outstanding felony, no bail, warrant. (Complaint at p. 5, lines 11-13.) After Plaintiff was handcuffed and detained in Defendant Deputy Thames' patrol car, he was subsequently removed and escorted to Defendant Deputy Roth's patrol car. (Complaint at p. 5, lines 22-24.) Plaintiff alleges that as he was escorted, Defendant Deputy Thames pulled his arm, causing Plaintiff to "bump" Defendant Deputy Roth with his leg. (Complaint at p. 5, lines 22-29.) Plaintiff alleges that Defendant Deputy Roth pushed him away. Plaintiff was then thrown to the ground by Defendant Deputy Thames while still in mechanical restraints. (Complaint at p. 6, lines 1-6.) Plaintiff alleges he was then "choked and pepper sprayed" by Defendant Deputy Roth until he went unconscious. Plaintiff alleges when he came to, he was kicked in his chest and head, punched in his face and then "choked and pepper sprayed" for the second time until he went unconscious again. (Complaint at p. 6, lines 7-11.) Plaintiff alleges that both Defendants proceeded to use excessive force on Plaintiff without any provocation, force or resistance by Plaintiff, thereby causing him to suffer injuries. (Complaint at pgs. 6-7.)
On December 24, 2008, the Los Angeles County District Attorney's office filed a criminal complaint against Plaintiff. The criminal complaint alleged that "[o]n or about December 22, 2008, in the County of Los Angeles, the crime of RESISTING EXECUTIVE OFFICER, in violation of Penal Code Section 69, a Felony, was committed by Victor Shawn Brown, who did unlawfully attempt by means of threats and violence to deter and prevent C. L. Thames, and J. Roth, who were then and there executive officers, from performing a duty imposed upon such officers by law, and did knowingly resist by the use of force and violence said executive officers in the performance of their duties." (Defendants' Request for Judicial Notice, Exhibit ["Ex."] A - Criminal Complaint.)
On May 26, 2009, Plaintiff pled guilty to the crime of resisting an executive officer in violation of Penal Code section 69.(Defendants' Request for Judicial Notice, Ex. B - Abstract of Judgment.)
Plaintiff filed a petition for writ of habeas corpus in the California Court of Appeal. Plaintiff also filed a petition for writ of habeas corpus in the California Supreme Court. (Defendants' Request for Judicial Notice, Exs. C, D and E.)
PARTIES' CONTENTIONS
Plaintiff is suing Defendants Deputies Roth and Thames for excessive force pursuant to 42 U.S.C. §1983. Defendants Deputies Roth and Thames contend that they are entitled to judgment on the pleadings because Plaintiff's claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994).
MOTION FOR JUDGMENT ON THE PLEADINGS
1. Standard of Review.
Federal Rule of Civil Procedure 8(a)(2) requires "a short and plain statement of the claim showing that the pleader is entitled to relief," in order to "give the defendant fair notice of what the ... claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47 (1957); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 1964 (2007); Erickson v. Pardus, 551 U.S. 89, 127 S.Ct. 2197, 2200 (2007). Judgment on the pleadings pursuant to Rule 12(c) is appropriate when, even if all material facts in the nonmoving party's pleadings are true, the moving party is entitled to judgment as a matter of law. Torbet v. United Airlines, Inc., 298 F.3d 1087, 1089 (9th Cir. 2002), overruled on other grounds by United States v. Aukai, 497 F.3d 955 (9th Cir. 2007).
The standard applied on a Rule 12(c) motion for judgment on the pleadings is essentially the same as that applied on a Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted. See Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1550 (9th Cir. 1989). To survive a motion to dismiss for failure to state a claim upon which relief can be granted, "[f]actual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atlantic Corp. v. Twombly, 127 S.Ct. at 1965 (citations and quotations omitted). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the 'grounds' of his 'entitle[ment] to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id. (citations omitted). "[O]nce a claim has been stated adequately, it may be supported by showing any set of facts consistent with the allegations in the complaint." Id. at 1969. Dismissal is appropriate on a Rule 12(b)(6) motion if the facts alleged do not state a claim to relief that is "plausible on its face." Id. at 1974.
Pro se pleadings are liberally construed. Ortez v. Washington County, 88 F.3d 804, 807 (9th Cir. 1996). Generally, review is limited to the contents of the complaint. Clegg v. Cult Awareness Network, 18 F.3d 752, 754 (9th Cir. 1994). However, material which is properly submitted as part of the complaint may be considered on a motion to dismiss. Cooper v. Pickett, 137 F.3d 616, 622 (9th Cir. 1997). Also, a court may take judicial notice of "matters of public record" without converting a motion to dismiss into a motion for summary judgment. Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001). Allegations of material fact in the complaint are taken as true and construed in the light most favorable to the nonmoving party. Clegg v. Cult Awareness Network, 18 F.3d at 754. "The court need not, however, accept as true allegations that contradict matters properly subject to judicial notice or by exhibit. Nor is the court required to accept as true allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.) (citations omitted), amended by 275 F.3d 1187 (2001). A plaintiff's civil rights claim can be "fatally undermined" by the attachments to his complaint. Id.
DISCUSSION
For all of the following reasons, Defendant Deputies Roth and Thames' Motion for Judgment on the Pleadings should be denied.
A. Section 1983 Requirements.
In order to state a claim under section 1983, a plaintiff must allege that: (1) the defendants were acting under color of state law at the time the complained of acts were committed; and (2) the defendants' conduct deprived plaintiff of rights, privileges, or immunities secured by the Constitution or laws of the United States. Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 624 (9th Cir. 1988); Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc), cert. denied, 478 U.S. 1020 (1986). Liability under section 1983 is predicated upon an affirmative link or connection between the defendants' actions and the claimed deprivations. See Rizzo v. Goode, 423 U.S. 362, 372-73 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
A person deprives another of a constitutional right, where that person "does an affirmative act, participates in another's affirmative acts, or omits to perform an act which [that person] is legally required to do that causes the deprivation of which complaint is made." [citation] Indeed, the "requisite causal connection can be established not only by some kind of direct personal participation in the deprivation, but also by setting in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict the constitutional injury." [citation]Hydrick v. Hunter, 500 F.3d 978, 988 (9th Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d at 743-44).
Here, Plaintiff alleges that Defendants Deputies Roth and Thames were acting under color of state law and used excessive force against Plaintiff in violation of his rights under the Fourth Amendment.
B. Defendants Deputies Roth and Thames Have Failed to Establish That Plaintiff's §1983 Action for Excessive Force Is Barred by Heck V. Humphrey.
In Heck v. Humphrey, the Supreme Court held that where the facts underlying both a criminal conviction or sentence and a §1983 action are the same, "no cause of action under §1983 [exists] unless and until the conviction or sentence is reversed, expunged, invalidated or impugned by the grant of a writ of habeas corpus." 512 U.S. 477, 489, 114 S.Ct. 2364 (1994). In Heck, the District Court dismissed a section 1983 action without prejudice because the issues it raised "directly implicate[d] the legality of [plaintiff's] confinement." Id. at 479, 114 S.Ct. 2364. The Supreme Court, in reviewing the Seventh Circuit's affirmance, held that a section 1983 cause of action for damages attributable to an unconstitutional conviction or sentence does not accrue until the conviction or sentence has been invalidated. Heck, 512 U.S. at 490, 114 S.Ct. 2364. Specifically, the Court stated:
"[W]hen a state prisoner seeks damages in a §1983 suit, the District Court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. But if the District Court determines that the plaintiff's action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit."Id. at 47, 114 S.Ct. 2364.
Here, Defendants argue that Heck has direct application to Plaintiff's §1983 cause of action for damages because Plaintiff's state criminal conviction for resisting an executive officer in violation of PC §69 is based on the same set of facts as his §1983 action, and Plaintiff's criminal conviction has not been invalidated. Defendants in support of their Motion attach as Exhibits Orders from the California Courts denying Plaintiff's habeas petitions. Plaintiff argues that the habeas petitions he filed in the state court are unrelated to his conviction for resisting an executive officer.(Plaintiff's Objections/Opposition at 7.)
In his Complaint, Plaintiff alleges that the officers who arrested him, Defendants Deputies Roth and Thames, used excessive force against him. Defendants assert that a determination that they used excessive force when attempting to arrest Plaintiff would imply that the conviction under PC §69 is invalid. Such a conclusion is in direct contravention of the Court's holding in Heck.
However, there is Ninth Circuit case law addressing the application of Heck in the context of §1983 suits wherein the Court found that Heck did not operate to bar the §1983 suit even in the face of an underlying conviction that had not been invalidated. In Hooper v. County of San Diego, 629 F.3d 1127, 1129 (9th Cir. 2011), the plaintiff pled guilty to resisting a peace officer under Penal Code section 148(a)(1) after struggling against officers attempting to arrest her for possession of methamphetamine. Once the plaintiff was on the ground and had her hands behind her back, she stopped struggling. Id. Thereafter, one of the arresting officers summoned his German Shepherd and the dog attacked the plaintiff's head. The Ninth Circuit held that the plaintiff had a viable section 1983 claim even though the alleged excessive force took place at the time of her arrest. Id. at 1134. The Ninth Circuit held that a conviction under Penal Code section 148(a)(1) does not bar a section 1983 claim for excessive force under Heck when the conviction and the section 1983 claim are based on different actions during 'one continuous transaction'". Id. at 1134.
In Smith v. City of Hemet, 394 F.3d 689 (9th Cir. 2005), Plaintiff filed a §1983 complaint alleging that defendant officers used excessive force when they sprayed him with pepper spray and sicced a police canine on him. The plaintiff, in a separate state criminal suit, pled guilty to willfully resisting, delaying or obstructing a peace officer in the discharge of his or her office or employment based on the same incident. Smith, 394 F.3d at 694. The officers moved for summary judgment on several grounds, among them that Heck barred Plaintiff's §1983 action. The plaintiff responded that the defendants unlawfully used excessive force against him after he had committed the acts on which his conviction was based, and thus a ruling in his favor would not imply that his conviction was invalid. Id. at 696. In concluding that Heck did not bar the plaintiff's §1983 action, the Ninth Circuit held:
"Smith engaged in at least three or four acts in violation of §148(a)(1) before the officers used force against him. These acts of willful resistance, delay or obstruction occurred prior to the time the officers had determined to arrest him for any criminal conduct. Indeed, they occurred in the course of the officers' lawful performance of their duty to investigate whether an offense had occurred. The acts by Smith include twice refusing to take his hands out of his pockets, reentering his home once; repeatedly refusing to put his hands on his head and come down off the porch, and finally refusing to put his hands on his head and turn around. Each of these acts constitute a
violation of §148(a)(1) sufficient to warrant the filing of a criminal charge. Each could support a conviction under that section for obstructing a criminal investigation.Id. at 697-98.
. . .
Under Heck, Smith would be allowed to bring a §1983 action, however, if the use of excessive force occurred subsequent to the conduct on which his conviction was based. Specifically, Smith would be entitled to proceed below if his conviction were based on unlawful behavior that took place while he stood alone and untouched on his porch that is, if his unlawful conduct occurred while the officers were attempting to investigate his wife's complaint. In such a case, a judgment in Smith's favor would not necessarily conflict with his conviction because his acts of resistance, delay or obstruction would have occurred while the officers were engaged in a lawful performance of their investigative duties, not while they were engaged in effecting an arrest by the use of excessive force."
In the instant case, Plaintiff alleges that Defendants Deputies Roth and Thames assaulted him. Plaintiff alleges that Defendants used excessive force on Plaintiff after he was handcuffed and subdued. Plaintiff alleges that he was thrown to the ground while still in restraints and was choked and pepper sprayed by Defendant Deputy Roth until he went unconscious. (Plaintiff's Objections/Opposition at p. 5.)
Defendants do not offer any argument or provide any evidence - nor could they properly do so at this stage in the proceeding, supporting a conclusion that the amount of force used was proportionate to the threat posed by Plaintiff. Without specific factual evidence concerning the circumstances under which the arrest took place, Defendants' blanket assertions that Heck bars Plaintiff's §1983 action because Plaintiff's allegations of excessive force necessarily imply the invalidity of his criminal conviction is insufficient to establish that Defendants are entitled to judgment as a matter of law.
The case law addressed in the application of Heck in the context of §1983 actions is highly fact-specific. Although a general reading of Heck appears to support Defendants' position that Plaintiff's §1983 action is barred, subsequent Ninth Circuit cases interpreting Heck reach differing results based exclusively on the facts presented. In considering these Ninth Circuit cases and the facts presented therein, and applying the relevant legal standards to the instant action, the Court finds that Defendants have failed to establish that they are entitled to judgment as matter of law on Plaintiff's §1983 action.
RECOMMENDATION
For all of the foregoing reasons, IT IS RECOMMENDED that the District Court issue an Order: (1) approving and adopting this Report and Recommendation; and (2) directing that Defendants' Motion for Judgment on the Pleadings be denied. DATED: June 15, 2011
/s/_________
VICTOR B. KENTON
UNITED STATES MAGISTRATE JUDGE // //
NOTICE
Reports and Recommendations are not appealable to the Court of Appeals, but are subject to the right of any party to timely file Objections as provided in the Local Rules Governing the Duties of the Magistrate Judges, and review by the District Judge whose initials appear in the docket number. No Notice of Appeal pursuant to the Federal Rules of Appellate Procedure should be filed until entry of the Judgment of the District Court.