Opinion
Civil No. 99-1436-KI
April 5, 2001
Virgil D. Wood EOCI 6405901 Pendleton, Oregon Pro Se Plaintiff.
Robert S. Wagner David C. Lewis Miller Wagner LLP Trial Lawyers Portland, Oregon Attorneys for Defendants Stephanie Smith, Rob Havice, Medford Police Department, and City of Medford.
Mike Jewett Jackson County Counsel Medford, Oregon Attorney for Jackson County Sheriff's Department, Jeanie Burrows, Jackson County and Robert O. Kennedy.
OPINION AND ORDER
Pro se plaintiff Virgil Wood alleges 42 U.S.C. § 1983 claims of excessive force and cruel and unusual punishment arising from his arrest and jailing after an altercation with two Medford, Oregon, police officers who were investigating his involvement in a possible crime. Before the court is Medford defendants' motion for summary judgment (#26) and Medford defendants' objections to and motions to strike plaintiff's concise statement of material facts (#36). For the reasons below, I grant the motion for summary judgment.
FACTS
On October 9, 1997, Medford police officers Smith and Havice attempted to stop Virgil Wood while he was walking down the road so that they could discuss a complaint from a store Wood just left. A scuffle ensued, resulting in the officers striking Wood once on the side of his face with a flashlight, spraying Wood several times with their pepper spray, and striking him approximately 20 times with their asps, a type of baton. For his part, Wood flailed at the officers while swinging a wet T-shirt at their faces, punched at them, and refused to obey their commands to get down on the ground. Eventually, both officers and Wood were tumbling on the ground. Wood's full-size dog also bit both officers severely enough to require treatment at the hospital and over a week of pain.
Once Wood was subdued, he was arrested and transported to the Jackson County jail. He alleges that the jail personnel refused to get him medical assistance for six days in spite of the fact that he was severely beaten. Wood's claims against the county and its personnel are not at issue in this motion.
Wood was convicted in a jury trial of two counts of assault in the second degree (one count for each officer), two counts of assaulting a public safety officer, harassment, and resisting arrest. The jury was instructed that assault in the second degree occurs if a person intentionally causes physical injury to another by use of a dangerous weapon. In Wood's case, the dangerous weapon was his dog. The officers and two bystanders testified that the dog remained out of the fracas until Wood ordered it to attack several times.
The last four charges are all lesser included crimes of assault in the second degree in the sense that they describe less violent acts.
The judge also instructed the jury on Wood's theory of self defense:
A peace officer is justified in using physical force, upon a person being arrested when and to the extent that he or she — there were two, reasonably believes it necessary to make an arrest. If a person physically resists an arresting officer the officer is authorized to use reasonable force necessary to overcome the resistance. If, however, the officer uses unreasonable force to arrest a person who is offering no resistance that person is entitled to defend himself according to the following rule: A person is justified in using physical force upon another person to defend himself from what he reasonably believes to be the use or immanent [sic] use of unlawful physical force. In defending, a person may only use that degree of force which he reasonably believes to be necessary.
Tr. 254-55.
LEGAL STANDARDS
Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). The initial burden is on the moving party to point out the absence of any genuine issue of material fact. Once the initial burden is satisfied, the burden shifts to the opponent to demonstrate through the production of probative evidence that there remains an issue of fact to be tried. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). On a motion for summary judgment, the evidence is viewed in the light most favorable to the nonmoving party. Robi v. Reed, 173 F.3d 736, 739 (9th Cir.), cert. denied, 120 S.Ct. 375 (1999).
DISCUSSION
The Medford defendants rely on the rule stated in Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364 (1994). To recover damages for an allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus. If a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence, the court must dismiss the complaint. Id. at 486-87.
This rule has been applied in excessive force cases. In Hudson v. Hughes, 98 F.3d 868 (5th Cir. 1996), the plaintiff alleged that excessive force was used when he was brutally beaten during his arrest on a burglary complaint. The plaintiff was convicted of battery of a police officer. The court held that Heck precluded the plaintiff's excessive force § 1983 claim. It reasoned that if the excessive force claim was proven, it would imply the invalidity of the conviction for battery of an officer, for which self defense was a justification defense under state law. "This is true because the question whether the police applied reasonable force in arresting him depends in part on the degree of his resistance, which in turn will place in issue whether his resistance (the basis of his conviction for assaulting a police officer) was justified, which, if it were, necessarily undermines that conviction." Id. at 873.
The plaintiff fared better in Smithart v. Towery, 79 F.3d 951 (9th Cir. 1996), which held that Heck did not preclude the plaintiff's excessive force claim. Plaintiff entered an Alford plea to assault with a deadly weapon, for driving his truck at law enforcement officers who had made a traffic stop of the plaintiff's son. The alleged beating by the officers did not occur until the plaintiff had left his truck, after his assault on the officers had ended. Thus, his § 1983 claim did not call into question his conviction.
Wood's situation is closer to Hudson. Because the alleged unlawful beating took place at the same time as Wood's assault on the officers, the criminal jury's conviction would be undermined if a jury in this court determined that the officers used excessive force in light of Wood's self defense. Consequently, Heck precludes Wood's § 1983 claim of excessive force.
Wood's § 1983 Eighth Amendment claim alleging cruel and unusual punishment during the arrest fails as a matter of law. The Eighth Amendment's prohibition against cruel and unusual punishment does not apply until after conviction and sentence. Pierce v. Multnomah County, Oregon, 76 F.3d 1032, 1042 (9th Cir.), cert. denied, 519 U.S. 1006 (1996).
CONCLUSION
Medford defendants' motion for summary judgment (#26) is granted. All claims against Smith, Havice, the Medford police department, and the City of Medford are dismissed. The excessive force claims are dismissed without prejudice and the cruel and unusual punishment claims are dismissed with prejudice. Medford defendants' objections to and motions to strike plaintiff's concise statement of material facts (#36) is moot.
IT IS SO ORDERED.