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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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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OUSSAMA SAHIBI,

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Plaintiff,

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CASE NO. 1:15-cv-01581-LJO-MJS (PC)
ORDER GRANTING LEAVE TO FILE
SURREPLY

v.
BORJAS GONZALES, et al.,

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Defendants.

(ECF No. 45)

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FINDINGS AND RECOMMENDATIONS TO
DENY DEFENDANTS’ MOTION FOR
JUDGMENT ON THE PLEADINGS

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(ECF No. 31)

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FOURTEEN (14) DAY OBJECTION
DEADLINE

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I.

Procedural History

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil

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rights action brought pursuant to 28 U.S.C. § 1983. The action proceeds on Plaintiff’s

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Eighth Amendment excessive force claim against Defendants Brandon Cope, Borjas

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Gonzales, Mario Lozano, Howard Smith, and Stan, and on a Fourteenth Amendment

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due process claim against Defendant Crounse.

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Before the Court is Defendant Gonzales, Lozano, Smith, Stan, and Cope’s July 1,

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2016 motion for judgment on the pleadings.1 (ECF No. 31.) Plaintiff filed an opposition

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Defendant Crounse did not join in the motion.

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(ECF No. 35), and Defendants filed a reply (ECF No. 37). Plaintiff sought leave to file a

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surreply and submitted a surreply therewith. (ECF No. 45.) Defendants opposed the

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request and responded to the surreply. (ECF No. 47.) These matters are submitted.

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Local Rule 230(l).

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II.

Motion for Leave to File Surreply

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Absent leave of court, no briefing on Defendant’s motion is permitted beyond the

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opposition and reply. However, the Court may allow a surreply where “a valid reason for

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such additional briefing exists.” Thornton v. Cates, No. 1:11–cv–01145–GSA–PC., 2013

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WL 2902846, at *1 (E.D. Cal. June 13, 2013); Hill v. England, No. CVF05869RECTAG,

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2005 WL 3031136, *1 (E.D. Cal. Nov. 8, 2005).

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Here, the Court finds valid reason for allowing the surreply. The law at issue on

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this motion has changed since the parties submitted their briefs. Nettles v. Grounds, No.

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12-16935, 2016 WL 4072465, at *3 (9th Cir. July 26, 2016). Plaintiff’s surreply addresses

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a matter pertinent to this change in law. Furthermore, Defendants have responded to the

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surreply and therefore are not prejudiced by it.
Plaintiff’s motion for leave to file a surreply will be granted. Plaintiff’s surreply and

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Defendants’ response is considered herein.

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III.

Plaintiff’s Claims

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Plaintiff’s claims arise out of a July 13, 2013 incident that occurred while he was

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incarcerated at California Correctional Institution. Plaintiff claims that, on that date, he

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was released from his cell for Ramadan services when Defendant Gonzales began to

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make disparaging remarks toward Plaintiff. An altercation occurred between Plaintiff and

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Defendant Gonzales. Plaintiff was subdued and handcuffed. Plaintiff alleges various acts

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by Defendant Gonzales and others were excessive. Based on these allegations, the

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Court has permitted Plaintiff to proceed on an excessive force claim against Defendants

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Gonzales, Smith, Cope, Lozano and Stan. Such claim, however, is limited to

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Defendants’ actions after Plaintiff was handcuffed.

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Plaintiff received a Rules Violation Report (“RVR”) in relation to this incident. On

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November 14, 2013, he appeared before Defendant Crounse for his disciplinary hearing.

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He asked Defendant Crounse to call Defendants Gonzales, Smith, Stan, Cope and

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Lozano as witnesses. Defendant Crounse told Plaintiff that he would not be calling

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anyone, “as staff reports gave a full account of the incident.” Plaintiff was found guilty of

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the Rules Violation.

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The Court has permitted Plainitff to proceed on a Fourteenth Amendment claim

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against Defendant Crounse based on the denial of his right to call witnesses at his

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disciplinary hearing.

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IV.

Legal Standard – Motion for Judgment on the Pleadings

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A Rule 12(c) motion for judgment on the pleadings may be brought at any time

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after the pleadings are closed, but within such time so as not to delay trial. Fed. R. Civ.

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P. 12(c). Judgment on the pleadings is appropriate when, even if all material facts in the

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pleading are accepted as true, the moving party is entitled to judgment as a matter of

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law. Hal Roach Studios, Inc. V. Richard Feiner & Co., 896 F.2d 1542, 1550 (9th Cir.

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1989).

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V.

Discussion

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Defendants contend that they are entitled to judgment on the pleadings because

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Plaintiff’s claims are barred by the favorable termination rule, also known as the Heck

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bar, on two grounds: first, Plaintiff’s claims are inconsistent with the guilty finding

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resulting from his disciplinary proceeding for Battery on a Peace Officer Resulting in

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Serious Injury; and second, Plaintiff’s claims are inconsistent with his felony conviction

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for assault on a peace officer engaged in the performance of his duties.

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A.

Heck Bar

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The exclusive method for challenging the fact or duration of Plaintiff’s confinement

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is by filing a petition for a writ of habeas corpus. Wilkinson v. Dotson, 544 U.S. 74, 78

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(2005). See 28 U.S.C. § 2254(a). Such claims may not be brought in a section 1983

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action. Nor may Plaintiff seek to invalidate the fact or duration of his confinement
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indirectly through a judicial determination that necessarily implies the unlawfulness of the

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State’s custody. Wilkinson, 544 U.S. at 81. A section 1983 action is barred, no matter the

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relief sought, if success in that action would necessarily demonstrate the invalidity of

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confinement or its duration. Id. at 81-82; Heck v. Humphrey, 512 U.S. 477, 489 (1994)

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(unless and until favorable termination of the conviction or sentence, no cause of action

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under section 1983 exists).

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B.

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Analysis
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Disciplinary Proceedings

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Plaintiff is a prisoner serving a life sentence. He contends that the loss of credits

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resulting from his disciplinary proceeding will have no effect on the duration of his

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confinement. Defendants offer no evidence to the contrary. Given these facts, and

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pursuant to recent Ninth Circuit case law, Plaintiff’s section 1983 claims do not fall within

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the “core” of habeas corpus relief and therefore are not barred by his disciplinary

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proceedings. Nettles v. Grounds, No. 12-16935, 2016 WL 4072465, at *3 (9th Cir. July

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26, 2016). Defendants concede as much. (ECF No. 47.)

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Accordingly, Defendants’ motion for judgment on the pleadings on this ground
should be denied.

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2.

Felony Conviction

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Defendants argue that allowing Plaintiff to proceed against them in this action

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would call into question the validity of Plaintiff’s conviction for assault on a peace officer

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engaged in the performance of his duties. Defendants only argument in this regard is

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statutory.

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Plaintiff was convicted under California Penal Code § 245(c). This provision

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punishes certain assaults on a peace officer “engaged in the performance of his or her

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duties.” According to Defendants, an officer utilizing excessive force is not “engaged in

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the performance of his or her duties.” Therefore, an excessive force claim is absolutely

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barred where an inmate has been convicted under Penal Code § 245(c). In support,

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Defendants rely on case law and CDCR regulations.
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It is true that, under California law, a person may not be convicted under Penal

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Code § 245(c) if the involved officer utilized excessive force during the encounter. See

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Price v. Ollison, No. CV 07-569 DSF JC, 2011 WL 1883999, at *13 (C.D. Cal. Feb. 25,

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2011), report and recommendation adopted as modified, No. CV 07-569 DSF JC, 2011

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WL 1883008 (C.D. Cal. May 17, 2011); People v. White, 101 Cal. App. 3d 161, 164

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(1980) (“[W]here excessive force is used in making what otherwise is a technically lawful

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arrest, the arrest becomes unlawful and a defendant may not be convicted of an offense

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which requires the officer to be engaged in the performance of his duties.”); Susag v.

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City of Lake Forest, 94 Cal. App. 4th 1401, 1409 (Cal. Ct. App. 2002) (holding that

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excessive force by a police officer is not a lawful performance of his or her duties). Thus,

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Plaintiff may not proceed on any claims relating to whether Defendants used excessive

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force at the time while the offense (assault on a peace officer) occurred.

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Here, however, Plaintiff has been allowed to proceed only on those allegations

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occurring after he was handcuffed by the involved officers. A conclusion that Defendants

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used excessive force after the attack by Plaintiff and after Plaintiff was handcuffed does

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not undermine Plaintiff’s conviction. See Hooper v. County of San Diego, 629 F.3d 1127,

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1134 (9th Cir. 2011) (A “conviction under California Penal Code § 148(a)(1) does not bar

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a § 1983 claim for excessive force under Heck when the conviction and the § 1983 claim

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are based on different actions during ‘one continuous transaction.’”); Sanford v. Motts,

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258 F.3d 1117, 1120 (9th Cir. 2001) (“[I]f [the officer] used excessive force subsequent

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to the time Sanford interfered with [the officer’s] duty, success in her section 1983 claim

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will not invalidate her conviction. Heck is no bar.”).

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Defendants may wish to argue that no such actions occurred after the

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commission of Plaintiff’s offense and that all of the alleged force occurred during the

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commission of Plaintiff’s assault on a peace officer engaged in the performance of his

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duties. However, this is contrary to Plaintiff’s allegations and thus cannot support a

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motion for judgment on the pleadings. See Sturgis v. Brady, No. C 08-5363 SBA (PR),

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2016 WL 924859, at *6 (N.D. Cal. Mar. 11, 2016) (denying motion for judgment on the
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pleadings where Plaintiff claimed he already was subdued when the excessive force was

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used). Instead, such matters must be resolved on summary judgment or, as is more

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likely in this matter, at trial.
Accordingly, Defendants’ motion for judgment on the pleadings on this basis

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should be denied.

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VI.

Conclusion, Order and Recommendation

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Based on the foregoing, Plaintiff’s motion for leave to file a surreply (ECF No. 45)

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is HEREBY GRANTED. Furthermore, it is HEREBY RECOMMENDED that Defendants’

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motion for judgment on the pleadings (ECF No. 31) be DENIED.

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These findings and recommendations will be submitted to the United States

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District Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C.

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§ 636(b)(1). Within fourteen (14) days after being served with the findings and

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recommendations, the parties may file written objections with the Court. The document

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should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.”

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A party may respond to another party’s objections by filing a response within fourteen

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(14) days after being served with a copy of that party’s objections. The parties are

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advised that failure to file objections within the specified time may result in the waiver of

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rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter

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v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

September 19, 2016

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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