Preston v. Alexander et al

Filing 31

ORDER granting Defendants' 25 Motion for Summary Judgment; the Clerk must dismiss this action without prejudice and enter judgment accordingly. Signed by Judge G Murray Snow on 4/11/13.(REW)

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WO

JWB

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Chris Alan Preston,
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Plaintiff,

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vs.

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Ben Alexander, et al.,

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Defendants.
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No. CV 11-1200-PHX-GMS (ECV)
ORDER

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Plaintiff Chris Preston, through counsel, brought this civil rights action under 42

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U.S.C. § 1983 against Mesa Police Department (MPD) Detective Alexander and MPD

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Officer Hurley alleging excessive force in violation of the Fourth Amendment (Doc. 8 at 2-

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3).1 Before the Court is Defendants’ Motion for Summary Judgment, which Plaintiff opposes

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(Docs. 25, 28). The Court will grant Defendants’ motion and terminate this action.

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I.

Background

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Plaintiff’s claim arose on April 3, 2011, when he was arrested by Defendants in Mesa,

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Arizona (Doc. 8, Am. Compl. ¶ D2). Plaintiff alleged that Defendants were in an unmarked

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vehicle and one of the Defendants jumped from the vehicle and ran toward Plaintiff (id. ¶

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D4). Because he was not wearing a police uniform, Plaintiff asserted that he did not

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recognize the Defendant as a police officer and rode away on his bicycle in fear (id.).

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Plaintiff’s original Complaint was filed pro se, but the First Amended Complaint was
filed by counsel.

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Plaintiff alleged that Defendants continued to chase him, drove in front of his bicycle, and

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made a stop and arrest for unlawful flight from a police officer (id. ¶ D5). At that time,

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Plaintiff claimed, Defendant Alexander proceeded to beat and punch Plaintiff without

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provocation (id.). As a result of Defendants’ actions, Plaintiff suffered a blackened eye, cuts

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and abrasions over his entire face, a laceration on his head, and a broken tooth and also

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required hospitalization (id. ¶ D6). Plaintiff sought monetary damages (id. ¶¶ E1-E5).

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The Court ordered Defendants to answer the First Amended Complaint (Doc. 14).

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They move for summary judgment on the ground that Plaintiff’s claim is barred by Heck v.

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Humphrey, 512 U.S. 477 (1994) (Doc. 25).

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II.

Governing Standards

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A.

Summary Judgment

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A court must grant summary judgment “if the movant shows that there is no genuine

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dispute as to any material fact and the movant is entitled to judgment as a matter of law.”

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Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The

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movant bears the initial responsibility of presenting the basis for its motion and identifying

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those portions of the record, together with affidavits, that it believes demonstrate the absence

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of a genuine issue of material fact. Celotex, 477 U.S. at 323.

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If the movant fails to carry its initial burden of production, the nonmovant need not

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produce anything. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Co., Inc., 210 F.3d 1099,

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1102-03 (9th Cir. 2000). But if the movant meets its initial responsibility, the burden then

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shifts to the nonmovant to demonstrate the existence of a factual dispute and that the fact in

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contention is material, i.e., a fact that might affect the outcome of the suit under the

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governing law, and that the dispute is genuine, i.e., the evidence is such that a reasonable jury

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could return a verdict for the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

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248, 250 (1986); see Triton Energy Corp. v. Square D. Co., 68 F.3d 1216, 1221 (9th Cir.

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1995). The nonmovant need not establish a material issue of fact conclusively in its favor,

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First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968); however, it must

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“come forward with specific facts showing that there is a genuine issue for trial.” Matsushita
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Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal citation

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omitted); see Fed. R. Civ. P. 56(c)(1).

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At summary judgment, the judge’s function is not to weigh the evidence and

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determine the truth but to determine whether there is a genuine issue for trial. Anderson, 477

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U.S. at 249. In its analysis, the court must believe the nonmovant’s evidence, and draw all

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inferences in the nonmovant’s favor. Id. at 255. The court need consider only the cited

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materials, but it may consider any other materials in the record. Fed. R. Civ. P. 56(c)(3).

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B.

Heck v. Humphrey

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To recover damages for harm caused by actions whose unlawfulness would render a

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conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence

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has been reversed on direct appeal, expunged by executive order, declared invalid by a state

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tribunal, or called into question by a federal court’s issuance of a writ of habeas corpus.

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Heck, 512 U.S. at 486-87. “A claim for damages bearing that relationship to a conviction

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or sentence that has not been so invalidated is not cognizable under § 1983.” Id. at 487. In

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other words, if the conviction or sentence arises out of the same facts that underlie the alleged

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unlawful behavior for which damages are sought, the § 1983 suit must be dismissed.

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Smithart v. Towery, 79 F.3d 951, 952 (9th Cir. 1996). If a state prisoner seeks damages in

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a § 1983 suit, a district court must therefore consider whether a judgment in favor of the

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plaintiff would necessarily imply the invalidity of his conviction or sentence; if so, the

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complaint must be dismissed. Heck, 512 U.S. at 487.

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The Ninth Circuit Court addressed the circumstances under which Heck bars

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excessive force claims arising out of an incident in which the plaintiff was convicted of

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resisting arrest. See Smith v. City of Hemet, 394 F.3d 689, 693 (9th Cir.) (en banc), cert.

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denied, 545 U.S. 1128 (2005). As the Smith opinion explained, an essential element of a

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conviction for resisting a peace officer pursuant to California law is that the police officer

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was “engaged in the performance of his official duties.” Id. at 695. Under California law,

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this means that the police officer was engaged in “lawful” conduct, including not using

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excessive force. See id. at 695-96 (citing California state court decisions). Thus, if a
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plaintiff was convicted for resisting a police officer during the course of an arrest, his

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subsequent § 1983 claim that the police officer used excessive force during the course of that

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arrest would, if successful, necessarily undermine the conviction. Id. at 697-98. In such

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circumstances, the Heck bar applies. Id.

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III.

Defendants’ Version of the Facts

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With their motion, Defendants submit a separate Statement of Facts (DSOF), which

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is supported by Alexander’s affidavit, the transcript from Plaintiff’s change of plea

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proceedings, and the minute entry documenting Plaintiff’s sentencing (Doc. 26, Exs.).

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Defendants set forth the following factual assertions:

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Alexander observed Plaintiff riding a bicycle eastbound on the north side of the street

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against the flow of traffic after dark without the required illuminated headlight (DSOF ¶ 1).

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Defendants approached Plaintiff with the emergency lights of the patrol vehicle on (id. ¶ 2).

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Alexander, who was wearing a black tactical vest with “POLICE” written on the front, back,

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and sleeves, attempted to contact Plaintiff, who began screaming “No, no, no” and

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accelerated away on his bicycle (id. ¶¶ 4-6). Alexander directed Plaintiff to stop but Plaintiff

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ignored the command (id. ¶ 6). Alexander chased Plaintiff on foot while Hurley turned the

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patrol vehicle around and followed Plaintiff into an apartment complex on Broadway Road

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(id. ¶ 7). Alexander saw Hurley exit his vehicle and heard him give Plaintiff verbal

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commands to place his hands behind his back, but Plaintiff did not comply and flailed his

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arms and legs (id. ¶ 8).

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Hurley struggled with Plaintiff and Alexander grabbed Plaintiff’s right arm but

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Plaintiff ripped it from his grasp (id. ¶ 9). During the struggle, Alexander repeatedly told

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Plaintiff to place his hands behind his back but Plaintiff swung his right elbow into

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Alexander’s face, striking him in the mouth (id. ¶¶ 9-10). Alexander continued to attempt

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to restrain Plaintiff, who continued to fight (id. ¶ 11). Eventually, Hurley handcuffed

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Plaintiff and he was arrested (id. ¶ 12).

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Plaintiff later pleaded guilty to resisting arrest (id. ¶ 17). During his plea colloquy,

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Plaintiff acknowledged that he intentionally prevented or attempted to prevent the officers
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from arresting him, that he knew Hurley was a police officer acting in his official duty, and

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that he threatened or used physical force to resist arrest (id. ¶ 14).

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IV.

Analysis

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It is undisputed that Plaintiff was convicted of resisting arrest, and that this conviction

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has not been expunged, reversed, invalidated or otherwise called into question (Doc. 26, Ex.

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3). The controlling question in this case is whether the analysis in Smith applies here.

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Smith drew a distinction between a plaintiff who resists officers before they use force, and

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a plaintiff who resists during the course of the arrest and accompanying application of force.

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Id. at 697-98. The Court identified different “phases” of the encounter between the plaintiff

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and the officer, and held that if Smith’s conviction was for his resisting the officers during

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the “investigative phase,” i.e. before the officers had begun to arrest and use force against

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him, then Heck did not bar his claims that the force was excessive. Id. at 698. On the other

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hand, if Smith’s conviction was for resisting the officers while the officers were effecting

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arrest and using the purportedly excessive force, then Heck did bar his claims that the

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officers used excessive force. Id. at 698-99.

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Although Plaintiff’s conviction in this case was under Arizona law rather than

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California law, this makes no difference for the present analysis. A defendant can only be

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convicted of resisting arrest in Arizona if the officer’s conduct was “lawful” when effecting

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the arrest; an officer’s conduct was not “lawful” if he used excessive force. See Ariz. Rev.

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Stat. 13-404(B)(2) (a person may not use physical force to resist arrest by an officer unless

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the physical forced used by the officer exceeds that allowed by law); State v. Fontes, 986

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P.2d 897, 901 (Ariz. Ct. App. 1998) (if the force used to make the arrest is reasonable, the

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defendant is not justified in using physical force to resist the arrest); see also State v. Sanders,

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575 P.2d 822, 826 (Ariz. Ct. App. 1978) (no unnecessary or unreasonable force shall be used

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in making an arrest and any excessive force used by an officer may be countered lawfully).

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Plaintiff made no effort to respond to Defendants’ specific argument that the excessive

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force claim is Heck-barred under the reasoning articulated in Smith. Nor did Plaintiff file

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a controverting statement of facts as required by Local Rule of Civil Procedure 56.1(b),
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rendering Defendants’ version of the facts uncontradicted. Further, Plaintiff states in his

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statement of facts that as Defendants “attempted to make contact, a struggle ensued with

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[Plaintiff], who was ultimately taken into custody. During this struggle [Plaintiff] was

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beaten so severely that one of his front teeth was chipped” (Doc. 29, Pl.’s Statement of Facts

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¶ 3) (emphasis added). This statement confirms that Plaintiff’s injuries were sustained while

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he was resisting the officers’ attempt to arrest him and not during another “phase” of the

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incident. Further, Plaintiff admitted that he intentionally prevented or attempted to prevent

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the officers from arresting him, that he knew Hurley was a police officer acting in his official

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duty, and that he threatened or used physical force to resist arrest (Doc. 26, Ex. B, Change

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of Plea Tr. 10:11-22).2

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Nor does Plaintiff offer a single piece of evidence in opposition that suggests that any

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force was used after Plaintiff was handcuffed and compliant. Thus, all of the evidence in the

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record reflects that the entire incident involving the officers’ use of force was a single course

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of events. Instead of addressing this dispositive issue, Plaintiff maintains that the officers’

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use of force was excessive under Graham v. Connor, 490 U.S. 386, 387 (1989), and claims

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that he is not challenging his conviction but, instead, seeking compensation for the injuries

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Defendants caused. But, as explained, Plaintiff misunderstands that being convicted under

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Arizona’s resisting arrest statute necessarily precludes a finding that an officer used

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excessive force. And because if Plaintiff were to succeed on an excessive force claim in this

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Court, it would necessarily imply the invalidity of that conviction. Thus, Plaintiff’s claim

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is Heck-barred and Defendants are entitled to summary judgment.

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Paragraph 3 of PSOF is also directly contradicted by the record: Plaintiff stated that
Defendants were dressed in plain clothes, yet he acknowledged during his change of plea that
he knew Hurley was a police officer dressed in police gear with the word “POLICE” written
on it (Doc. 26, Ex. B, Change of Plea Tr. 10:16-18). In fact, none of Plaintiff’s SOF contain
citations to the record, thereby also violating Local Rule of Civil Procedure 56.1(e).
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IT IS ORDERED that Defendants’ Motion for Summary Judgment (Doc. 25) is

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granted. The Clerk of Court must dismiss this action without prejudice and enter judgment

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accordingly.

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DATED this 11th day of April, 2013.

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