ORDER GRANTING DEFENDANT'S MOTION TO DISMISS FIRST AMENDED COMPLAINT
ROGER T. BENITEZ, District Judge.
On January 30, 2017, Defendant Deputy Alexandru Galiu filed a Motion to Dismiss Plaintiffs First Amended Complaint ("FAC"). (Docket No. 39.) On March 1, 2017, the Court took Defendant's motion under submission. (Docket No. 46.) On March 9, 2017, Plaintiff filed an untimely opposition to Defendant's Motion. (Docket No. 54.) The Court finds the Motion suitable for determination on the papers without oral argument, pursuant to Civil Local Rule 7.1.d.1. For the reasons set forth below, Defendant's Motion is
On February 28, 2014, Plaintiff was "arrested and taken to San Diego County Jail by La Mesa PD[.]" (FAC at p. 3.) On the same day, while Plaintiff was a pretrial detainee, Plaintiff was escorted by Corporal Kyle Dobson and a second deputy "into a `dress out' room, where incoming pretrial detainees trade out their street clothes for the jail outfit." (Id.) The deputies watched Plaintiff undress and when he was completely nude, "Corporal Kyle Dobson gave an order to `face away from him, bend over and spread the buttocks.'" (Id.) "After doing this apparently unsatisfactorily Dobson, ordered Plaintiffs hands behind his back [sic]." (Id.)
Plaintiff, aware that he had "a small bindle of marijuana" between his buttocks, "grabbed the small bindle and put it in his mouth" instead of following Dobson's order. (Id.) Dobson and the deputy "rushed toward Plaintiff," and Dobson yelled "give me the drugs." (Id.) The deputies forced Plaintiff into a sitting position, applied force to Plaintiffs throat, and tried to grab the bindle out of Plaintiffs mouth. During the struggle, the bindle became lodged in Plaintiffs throat, preventing him from complying with the deputies' orders to spit out the drugs. Plaintiff began to panic and "began to flail in an attempt to gain enough space to cough up the bindle." (Id.)
"Suddenly Plaintiff felt a crushing punch to the left eye from Defendant Galiu." (Id. at pp. 2-3.) Plaintiff further alleges he was then "slammed to the ground," at which point the bindle became dislodged from his throat. (Id. at p. 3.) Defendant then "kneed" Plaintiff in the nose twice. (Id.)
Plaintiff asserts Defendant's actions caused him to sustain a "serious orbital fracture to the left orbital bone," for which he has undergone an unsuccessful surgery resulting in some vision loss, and a fractured nose. (Id.)
On February 16, 2016, Plaintiff, proceedingpro se and informa pauperis, brought this action under 42 U.S.C. § 1983, alleging a federal civil rights claim for cruel and unusual punishment against Defendant. (Docket No. 1.) After the Court granted in part both Defendant's motion to dismiss and Plaintiff's motion to amend his pleading (Docket No. 36), Plaintiff timely filed the operative FAC. (Docket No. 38.) Defendant now moves for dismissal of Plaintiff's FAC for failure to state a claim.
Under Federal Rule of Civil Procedure 12(b)(6), dismissal is appropriate if, taking all factual allegations as true, the complaint fails to state a plausible claim for relief on its face. Fed. R. Civ. P. 12(b)(6); Bell At!. Corp. v. Twombly, 550 U.S. 544, 556-57 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (requiring plaintiff to plead factual content that provides "more than a sheer possibility that a defendant has acted unlawfully"). Under this standard, dismissal is appropriate ifthe complaint fails to state enough facts to raise a reasonable expectation that discovery will reveal evidence of the matter complained of, or if the complaint lacks a cognizable legal theory under which relief may be granted. Twombly, 550 U.S. at 556. "A claim is facially plausible `when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.'" Zixiang Liv. Kerry, 710 F.3d 995, 999 (9th Cir. 2013) (quoting Iqbal, 556 U.S. at 678). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678.
The Court must assume the truth of the facts presented in a plaintiff's complaint and construe inferences from them in the light most favorable to the nonmoving party when reviewing a motion to dismiss under Rule 12(b)(6). Erickson v. Pardus, 551 U.S. 89, 94 (2007). The complaint is considered in its entirety, "as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice." Tellabs, Inc. v. Makar Issues & Rights, Ltd., 551 U.S. 308, 322 (2007).
Relying on Heck v. Humphrey, 512 U.S. 477 (1944) and Yount v. City of Sacramento, 43 Cal.4th 885 (2008), Defendant asserts that Plaintiffs claim against him is barred as an impermissible collateral attack on his criminal conviction for California Penal Code section 69 (resisting an officer with force). In response,
"Heck precludes a Section 1983 claim based on actions which would `render a conviction or sentence invalid' where that conviction has not been reversed, expunged, or called into question by issuance of a writ of habeas corpus." Benavides v. City of Arvin, No. F CV 12-0405 LJO GSA, 2012 WL 1910259, at *4 (E.D. Cal. May 25, 2012) (citing Heck, 512 U.S. at 486). In other words, Heck requires dismissal of a Section 1983 claim "if a criminal conviction arising out of the same facts stands and is fundamentally inconsistent with the unlawful behavior for which section 1983 damages are sought[.]" Id. (quoting Smithhart v. Towers, 79 F.3d 951, 952 (9th Cir. 1996) (per curiam)). A district court determining whether the Heck doctrine applies must consider whether a plaintiffs success in his or her Section 1983 suit would `"necessarily imply' or `demonstrate' the invalidity of the earlier conviction or sentence[.]" Beets v. Cnty. of Los Angeles, 669 F.3d 1038, 1042 (9th Cir. 2012) (quoting Heck, 512 U.S. at 487).
However, Heck does not shield liability from every Section 1983 claim solely because the claim is based on the same facts of the plaintiffs underlying criminal conviction. Benavides v. City of Arvin, No. F CV 12-0405 LJO GSA, 2012 WL 1910259, at *4. In Smith v. City of Hemet, the Ninth Circuit "recognized that an allegation of excessive force by a police officer would not be barred by Heck if it were distinct temporally or spatially from the factual basis for the person's conviction." Beets, 669 F.3d at 1042 (citing Smith, 394 F.3d at 699). In particular, a plaintiff may bring a Section 1983 claim "if the use of excessive force occurred subsequent to the conduct on which his conviction was based." Smith, 394 F.3d at 698 (emphasis in original omitted).
Additionally, the California Supreme Court in Yount explained that there may be cases in which Heck would not bar a plaintiffs Section 1983 claims:
Yount, 43 Cal. 4th at 899 (quoting Jones v. Marcum, 197 F.Supp.2d 991, 1005, fn. 9 (S.D. Ohio 2002)). If, on the other hand, the facts giving rise to a plaintiffs claim cannot be separated into distinct incidents, or requires a court to engage in "temporal hair-splitting," such a claim is properly determined to be barred by Heck. Fetters v. Cnty. of Los Angeles, 243 Cal.App.4th 825, 840 (2016) (citing Truong v. Orange Cnty. Sheriff's Dept., 129 Cal.App.4th 1423, 1429 (2005)); see also Beets, 669 F.3d at 1044.
Applying these considerations to the instant case, Plaintiffs claim against Defendant, as pied, does not survive Defendant's Heck challenge. According to the criminal complaint, Plaintiff was charged with, inter alia, resisting an officer with force under California Penal Code section 69 (Count 1), and battery upon Defendant (Count 3). (Docket 39-2, Ex. A.) Count 1 was based on the following allegations:
(Id. at p. 5.) In contrast, Count 3 was based on the following allegations:
(Id.) The incidents giving rise to these charges occurred on the same date the alleged Section 1983 violation against Plaintiff occurred. (Id.; FAC at p. 3.) Ultimately, Plaintiff pied guilty to Count 1 and another count for possession of a controlled substance while in jail/prison. (Docket 39-2, Exs. A, B.)
Contrary to Defendant's assertion, it is not clear from the criminal complaint, plea form, or sentencing minutes that "Plaintiff was criminally prosecuted for violating Penal Code section 69 as a result of the encounter with defendant." (Docket No. 39-1, Mot. at p. 4.) As Plaintiff accurately argues in his opposition, Count 1, the only relevant count he pied guilty to, does not identify Defendant as the officer he resisted. In addition, the FAC alleges, and Defendant did not dispute, that at least two other officers were involved in the incident leading up to Defendant's alleged use of excessive force. At the same time, the FAC indicates that Plaintiffs conviction for resisting an officer arises out of same facts as the incident for which he now seeks damages. Plaintiff does not allege that his conviction has been "reversed, expunged, or called into question by issuance of a writ of habeas corpus." Benavides, 2012 WL 1910259, at *4. Thus, as pied, it appears Heck applies to Plaintiffs claim against Defendant, and the Court must determine whether Plaintiff is barred from recovery.
Relying solely on Smith, Plaintiffs opposition essentially argues that because "a variety of accusations" against him could form the basis of his conviction for California Penal Code section 69, he "is not necessarily attacking the validity of his conviction." (Docket No. 13, Pl.'s Opp'n at pp. 5-6.) But this is not the standard the Court is bound to apply. Rather, to overcome a Heck challenge, Plaintiff must demonstrate that his claim is not "fundamentally inconsistent with the unlawful behavior for which section 1983 damages are sought." Smith, 394 F.3d at 695 (quoting Smithart, 79 F.3d at 952) (internal quotations omitted). Here, Plaintiffs FAC does not articulate facts that plausibly establish that his claim arises from either a distinct incident within a continuous chain of events, Yount, 43 Cal. 4th at 899, or is distinct temporally and spatially from the incident which led to his conviction for resisting an officer, Smith, 394 F.3d at 699.
As a result, the Court finds Plaintiffs FAC, as alleged, is barred under Heck, and must be dismissed. Therefore, Defendant's motion to dismiss for failure to state a claim is
For the reasons stated above, Defendant's Motion to Dismiss is