Sahibi v. Gonzales. et al.

Filing 48

ORDER GRANTING 45 Leave to File Surreply; FINDINGS and RECOMMENDATIONS to Deny Defendants' 31 Motion for Judgment on the Pleadings, signed by Magistrate Judge Michael J. Seng on 9/19/16. Objections to F&R Due Within Fourteen Days. (Marrujo, C)

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1 2 3 4 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF CALIFORNIA 7 8 OUSSAMA SAHIBI, 9 Plaintiff, 10 11 CASE NO. 1:15-cv-01581-LJO-MJS (PC) ORDER GRANTING LEAVE TO FILE SURREPLY v. BORJAS GONZALES, et al., 12 Defendants. (ECF No. 45) 14 FINDINGS AND RECOMMENDATIONS TO DENY DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS 15 (ECF No. 31) 16 FOURTEEN (14) DAY OBJECTION DEADLINE 13 17 18 19 I. Procedural History 20 Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil 21 rights action brought pursuant to 28 U.S.C. § 1983. The action proceeds on Plaintiff’s 22 Eighth Amendment excessive force claim against Defendants Brandon Cope, Borjas 23 Gonzales, Mario Lozano, Howard Smith, and Stan, and on a Fourteenth Amendment 24 due process claim against Defendant Crounse. 25 Before the Court is Defendant Gonzales, Lozano, Smith, Stan, and Cope’s July 1, 26 2016 motion for judgment on the pleadings.1 (ECF No. 31.) Plaintiff filed an opposition 27 28 1 Defendant Crounse did not join in the motion. 1 (ECF No. 35), and Defendants filed a reply (ECF No. 37). Plaintiff sought leave to file a 2 surreply and submitted a surreply therewith. (ECF No. 45.) Defendants opposed the 3 request and responded to the surreply. (ECF No. 47.) These matters are submitted. 4 Local Rule 230(l). 5 II. Motion for Leave to File Surreply 6 Absent leave of court, no briefing on Defendant’s motion is permitted beyond the 7 opposition and reply. However, the Court may allow a surreply where “a valid reason for 8 such additional briefing exists.” Thornton v. Cates, No. 1:11–cv–01145–GSA–PC., 2013 9 WL 2902846, at *1 (E.D. Cal. June 13, 2013); Hill v. England, No. CVF05869RECTAG, 10 2005 WL 3031136, *1 (E.D. Cal. Nov. 8, 2005). 11 Here, the Court finds valid reason for allowing the surreply. The law at issue on 12 this motion has changed since the parties submitted their briefs. Nettles v. Grounds, No. 13 12-16935, 2016 WL 4072465, at *3 (9th Cir. July 26, 2016). Plaintiff’s surreply addresses 14 a matter pertinent to this change in law. Furthermore, Defendants have responded to the 15 surreply and therefore are not prejudiced by it. Plaintiff’s motion for leave to file a surreply will be granted. Plaintiff’s surreply and 16 17 Defendants’ response is considered herein. 18 III. Plaintiff’s Claims 19 Plaintiff’s claims arise out of a July 13, 2013 incident that occurred while he was 20 incarcerated at California Correctional Institution. Plaintiff claims that, on that date, he 21 was released from his cell for Ramadan services when Defendant Gonzales began to 22 make disparaging remarks toward Plaintiff. An altercation occurred between Plaintiff and 23 Defendant Gonzales. Plaintiff was subdued and handcuffed. Plaintiff alleges various acts 24 by Defendant Gonzales and others were excessive. Based on these allegations, the 25 Court has permitted Plaintiff to proceed on an excessive force claim against Defendants 26 Gonzales, Smith, Cope, Lozano and Stan. Such claim, however, is limited to 27 Defendants’ actions after Plaintiff was handcuffed. 28 2 1 Plaintiff received a Rules Violation Report (“RVR”) in relation to this incident. On 2 November 14, 2013, he appeared before Defendant Crounse for his disciplinary hearing. 3 He asked Defendant Crounse to call Defendants Gonzales, Smith, Stan, Cope and 4 Lozano as witnesses. Defendant Crounse told Plaintiff that he would not be calling 5 anyone, “as staff reports gave a full account of the incident.” Plaintiff was found guilty of 6 the Rules Violation. 7 The Court has permitted Plainitff to proceed on a Fourteenth Amendment claim 8 against Defendant Crounse based on the denial of his right to call witnesses at his 9 disciplinary hearing. 10 IV. Legal Standard – Motion for Judgment on the Pleadings 11 A Rule 12(c) motion for judgment on the pleadings may be brought at any time 12 after the pleadings are closed, but within such time so as not to delay trial. Fed. R. Civ. 13 P. 12(c). Judgment on the pleadings is appropriate when, even if all material facts in the 14 pleading are accepted as true, the moving party is entitled to judgment as a matter of 15 law. Hal Roach Studios, Inc. V. Richard Feiner & Co., 896 F.2d 1542, 1550 (9th Cir. 16 1989). 17 V. Discussion 18 Defendants contend that they are entitled to judgment on the pleadings because 19 Plaintiff’s claims are barred by the favorable termination rule, also known as the Heck 20 bar, on two grounds: first, Plaintiff’s claims are inconsistent with the guilty finding 21 resulting from his disciplinary proceeding for Battery on a Peace Officer Resulting in 22 Serious Injury; and second, Plaintiff’s claims are inconsistent with his felony conviction 23 for assault on a peace officer engaged in the performance of his duties. 24 A. Heck Bar 25 The exclusive method for challenging the fact or duration of Plaintiff’s confinement 26 is by filing a petition for a writ of habeas corpus. Wilkinson v. Dotson, 544 U.S. 74, 78 27 (2005). See 28 U.S.C. § 2254(a). Such claims may not be brought in a section 1983 28 action. Nor may Plaintiff seek to invalidate the fact or duration of his confinement 3 1 indirectly through a judicial determination that necessarily implies the unlawfulness of the 2 State’s custody. Wilkinson, 544 U.S. at 81. A section 1983 action is barred, no matter the 3 relief sought, if success in that action would necessarily demonstrate the invalidity of 4 confinement or its duration. Id. at 81-82; Heck v. Humphrey, 512 U.S. 477, 489 (1994) 5 (unless and until favorable termination of the conviction or sentence, no cause of action 6 under section 1983 exists). 7 B. 8 Analysis 1. Disciplinary Proceedings 9 Plaintiff is a prisoner serving a life sentence. He contends that the loss of credits 10 resulting from his disciplinary proceeding will have no effect on the duration of his 11 confinement. Defendants offer no evidence to the contrary. Given these facts, and 12 pursuant to recent Ninth Circuit case law, Plaintiff’s section 1983 claims do not fall within 13 the “core” of habeas corpus relief and therefore are not barred by his disciplinary 14 proceedings. Nettles v. Grounds, No. 12-16935, 2016 WL 4072465, at *3 (9th Cir. July 15 26, 2016). Defendants concede as much. (ECF No. 47.) 16 17 Accordingly, Defendants’ motion for judgment on the pleadings on this ground should be denied. 18 2. Felony Conviction 19 Defendants argue that allowing Plaintiff to proceed against them in this action 20 would call into question the validity of Plaintiff’s conviction for assault on a peace officer 21 engaged in the performance of his duties. Defendants only argument in this regard is 22 statutory. 23 Plaintiff was convicted under California Penal Code § 245(c). This provision 24 punishes certain assaults on a peace officer “engaged in the performance of his or her 25 duties.” According to Defendants, an officer utilizing excessive force is not “engaged in 26 the performance of his or her duties.” Therefore, an excessive force claim is absolutely 27 barred where an inmate has been convicted under Penal Code § 245(c). In support, 28 Defendants rely on case law and CDCR regulations. 4 1 It is true that, under California law, a person may not be convicted under Penal 2 Code § 245(c) if the involved officer utilized excessive force during the encounter. See 3 Price v. Ollison, No. CV 07-569 DSF JC, 2011 WL 1883999, at *13 (C.D. Cal. Feb. 25, 4 2011), report and recommendation adopted as modified, No. CV 07-569 DSF JC, 2011 5 WL 1883008 (C.D. Cal. May 17, 2011); People v. White, 101 Cal. App. 3d 161, 164 6 (1980) (“[W]here excessive force is used in making what otherwise is a technically lawful 7 arrest, the arrest becomes unlawful and a defendant may not be convicted of an offense 8 which requires the officer to be engaged in the performance of his duties.”); Susag v. 9 City of Lake Forest, 94 Cal. App. 4th 1401, 1409 (Cal. Ct. App. 2002) (holding that 10 excessive force by a police officer is not a lawful performance of his or her duties). Thus, 11 Plaintiff may not proceed on any claims relating to whether Defendants used excessive 12 force at the time while the offense (assault on a peace officer) occurred. 13 Here, however, Plaintiff has been allowed to proceed only on those allegations 14 occurring after he was handcuffed by the involved officers. A conclusion that Defendants 15 used excessive force after the attack by Plaintiff and after Plaintiff was handcuffed does 16 not undermine Plaintiff’s conviction. See Hooper v. County of San Diego, 629 F.3d 1127, 17 1134 (9th Cir. 2011) (A “conviction under California Penal Code § 148(a)(1) does not bar 18 a § 1983 claim for excessive force under Heck when the conviction and the § 1983 claim 19 are based on different actions during ‘one continuous transaction.’”); Sanford v. Motts, 20 258 F.3d 1117, 1120 (9th Cir. 2001) (“[I]f [the officer] used excessive force subsequent 21 to the time Sanford interfered with [the officer’s] duty, success in her section 1983 claim 22 will not invalidate her conviction. Heck is no bar.”). 23 Defendants may wish to argue that no such actions occurred after the 24 commission of Plaintiff’s offense and that all of the alleged force occurred during the 25 commission of Plaintiff’s assault on a peace officer engaged in the performance of his 26 duties. However, this is contrary to Plaintiff’s allegations and thus cannot support a 27 motion for judgment on the pleadings. See Sturgis v. Brady, No. C 08-5363 SBA (PR), 28 2016 WL 924859, at *6 (N.D. Cal. Mar. 11, 2016) (denying motion for judgment on the 5 1 pleadings where Plaintiff claimed he already was subdued when the excessive force was 2 used). Instead, such matters must be resolved on summary judgment or, as is more 3 likely in this matter, at trial. Accordingly, Defendants’ motion for judgment on the pleadings on this basis 4 5 should be denied. 6 VI. Conclusion, Order and Recommendation 7 Based on the foregoing, Plaintiff’s motion for leave to file a surreply (ECF No. 45) 8 is HEREBY GRANTED. Furthermore, it is HEREBY RECOMMENDED that Defendants’ 9 motion for judgment on the pleadings (ECF No. 31) be DENIED. 10 These findings and recommendations will be submitted to the United States 11 District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. 12 § 636(b)(1). Within fourteen (14) days after being served with the findings and 13 recommendations, the parties may file written objections with the Court. The document 14 should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” 15 A party may respond to another party’s objections by filing a response within fourteen 16 (14) days after being served with a copy of that party’s objections. The parties are 17 advised that failure to file objections within the specified time may result in the waiver of 18 rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter 19 v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 20 21 22 23 IT IS SO ORDERED. Dated: September 19, 2016 /s/ Michael J. Seng UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28 6

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