Hursey v. City of Redding

Filing 14

ORDER signed by Senior District Judge William B. Shubb on 9/23/2024 GRANTING 8 Motion to Dismiss, DISMISSING this action with prejudice, and DIRECTING the court to close the case. CASE CLOSED. (Woodson, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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KEVIN HURSEY, an individual,
Plaintiff,

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No. 2:24-cv-01758 WBS AC

v.

MEMORANDUM AND ORDER RE:
DEFENDANT’S MOTION TO DISMISS

CITY OF REDDING, a municipal
corporation; and DOES 1-50,
inclusive, individually,
jointly, and severally,

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Defendants.

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----oo0oo----

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Plaintiff Kevin Hursey brought this action against

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defendant City of Redding, pursuant to 42 U.S.C. § 1983, alleging

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claims of excessive force and deprivation of substantive due

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process under the United States Constitution, and assault and

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battery, negligence, and intentional infliction of emotional

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distress under California law, in connection with an incident on

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January 23, 2023, in which plaintiff was arrested by Redding

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police officers. (Compl. (Docket No. 1).)

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dismiss.

(Docket No. 8.)
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Defendant now moves to

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After the motion was fully briefed, and on the day set

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for oral argument, plaintiff’s counsel informed the court via e-

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mail that plaintiff no longer opposed the motion on the ground

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that the action is barred by Heck v. Humphrey, 512 U.S. 477

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(1994).

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opposition to the motion.

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parties now advise they have not really reached agreement because

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have been unable to agree upon whether dismissal with or without

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prejudice is appropriate.

Shortly thereafter, plaintiff filed a statement of non(See Docket No. 11.)

(See Docket No. 13.)

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court addresses the merits of the motion.

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I.

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However, the

Accordingly, the

Substantive Due Process Claim
The court first disposes of plaintiff’s substantive due

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process claim, which is not cognizable as a federal

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constitutional violation.

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officers have used excessive force . . . in the course of an

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arrest, investigatory stop, or other ‘seizure’ of a free citizen

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should be analyzed under the Fourth Amendment and its

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‘reasonableness’ standard, rather than under a ‘substantive due

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process’ approach,” as “the Fourth Amendment provides an explicit

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textual source of constitutional protection against this sort of

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physically intrusive governmental conduct.”

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490 U.S. 386, 395 (1989).

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claim is premised on a law enforcement seizure (see Compl. ¶¶ 13-

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15), it necessarily fails and must be dismissed.

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U.S. at 395.

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II.

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“[A]ll claims that law enforcement

Graham v. Connor,

Because the substantive due process

See Graham, 490

Fourth Amendment Claim
Defendant argues that plaintiff’s excessive force claim

is barred by plaintiff’s criminal conviction stemming from the
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same events.

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tort actions are not appropriate vehicles for challenging the

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validity of outstanding criminal judgments.”

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“Under Heck, a section 1983 action is barred if success in the

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action would ‘necessarily require the plaintiff to prove the

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unlawfulness of his conviction or confinement.’”

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of Sonoma, 40 F.4th 1002, 1005 (9th Cir. 2022) (en banc) (quoting

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Heck, 512 U.S. at 486).

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In Heck, the Supreme Court explained that “civil

512 U.S. at 486.

Lemos v. County

“Heck thus requires [courts] to ‘consider whether a

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judgment in favor of the plaintiff would necessarily imply the

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invalidity of his conviction or sentence; if it would, the

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complaint must be dismissed unless the plaintiff can demonstrate

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that the conviction or sentence has already been invalidated.’”

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Id. (quoting Heck, 512 U.S. at 487).

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plaintiff’s action, even if successful, will not demonstrate the

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invalidity of any outstanding criminal judgment against the

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plaintiff, the action should be allowed to proceed, in the

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absence of some other bar to the suit.’”

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U.S. at 487).

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“By contrast, if ‘the

Id. (quoting Heck, 512

In the criminal proceeding at issue, plaintiff pled no

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contest to and was convicted of three offenses: resisting an

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officer under California Penal Code § 69; resisting, delaying, or

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obstructing an officer under California Penal Code § 148(A)(1);

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and interfering with a police animal under California Penal Code

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§ 600(B).

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(See Docket No. 8-2 at 48, 81.)1

The state court

Defendant requests that the court take judicial notice
of the court documents and hearing transcript associated with
plaintiff’s state court plea agreement and conviction, and
plaintiff does not object. That request is hereby granted. See
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entered a judgment finding plaintiff guilty following the plea

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agreement (see id. at 81), which constitutes a conviction for

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purposes of Heck.

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571–72 (9th Cir. 2023).

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See Duarte v. City of Stockton, 60 F.4th 566,

As relevant here, conviction for all three offenses

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requires a finding that the officers were acting pursuant to

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their “duties.”

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“in the performance of his or her duty”); id. § 148 (resisting,

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delaying, or obstructing an officer “engaged in the performance

See Cal. Penal Code § 69 (resisting an officer

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of his or her lawful duties”); id. § 600(b) (interfering with or

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obstructing a dog “being used by a peace officer in the discharge

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. . . of his or her duties”).

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Under California law, “‘a defendant cannot be convicted

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of an offense against a peace officer engaged in the performance

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of his or her duties unless the officer was acting lawfully at

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the time the offense against the officer was committed.’”

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People v. Smith, 57 Cal. 4th 232, 241 (2013) (quoting In re

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Manuel G., 16 Cal. 4th 805, 815 (1997)) (cleaned up).

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id. (“lawful duty” requirement applies to § 69); Sanders v. City

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of Pittsburg, 14 F.4th 968, 971 (9th Cir. 2021) (“lawful duty”

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requirement applies to § 148(a)(1)); Cobarrubia v. Edwards, No.

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4:19-cv-07899 KAW, 2021 WL 735470, at *6 (N.D. Cal. Feb. 25,

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2021) (“lawful duty” requirement applies to § 600(b)) (citing

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People v. Adams, 124 Cal. App. 4th 1486, 1492 n.4 (5th Dist.

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2004)).

See

See also

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Byrd v. Phoenix Police Dep’t, 885 F.3d 639, 641 (9th Cir. 2018)
(taking judicial notice of documents from plaintiff’s state court
criminal case in order to perform Heck analysis).
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“The use of excessive force by an officer is not within

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the performance of the officer’s duty.

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the officer’s conduct’ is necessarily established as a result of

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a conviction” for resisting an officer.

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971 (quoting Hooper v. County of San Diego, 629 F.3d 1127, 1130

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(9th Cir. 2011)).

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convicted” for resisting or obstructing an officer “if an officer

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used excessive force at the time of the acts resulting in the

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conviction.”

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Thus, the ‘lawfulness of

See Sanders, 14 F.4th at

“In other words, a defendant can’t be

See id.

“It follows that Heck would bar [plaintiff] from

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bringing an excessive-force claim under section 1983 if that

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claim were based on force used during the conduct that was the

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basis for” his conviction.

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circumstance, to prevail in the section 1983 action, [plaintiff]

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would have to prove that [the officers] used excessive force,

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thus ‘negat[ing] an element of the offense’ of which [he] was

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convicted.”

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See Lemos, 40 F.4th at 1007. “In that

See id. (quoting Heck, 512 U.S. at 486 n.6).

“To decide whether success on a section 1983 claim

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would necessarily imply the invalidity of a conviction” -- i.e.,

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whether plaintiff’s claims are based on force used during the

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conduct that was the basis for his conviction -- the court “must

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determine which acts formed the basis for the conviction.”

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Lemos, 40 F.4th at 1005 (citing Smith v. City of Hemet, 394 F.3d

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689, 696–97 (9th Cir. 2005) (en banc); Sanford v. Motts, 258 F.3d

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1117, 1119–20 (9th Cir. 2001)).

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See

“When the conviction is based on a guilty plea, we look

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at the record to see which acts formed the basis for the plea.”

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Lemos, 40 F.4th at 1005.

No contest pleas are analyzed in the
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same way.

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analysis to conviction following no contest plea); Hooper, 629

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F.3d 1127, 1131 (9th Cir. 2011) (same); Kyles v. Baker, 72 F.

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Supp. 3d 1021, 1034 (N.D. Cal. 2014) (a “plea of no contest . . .

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qualifies as a conviction under Heck”) (collecting cases).

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See Sanders, 14 F.4th at 970 (applying this Heck

Where the plaintiff has stipulated to certain facts as

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part of the plea agreement, those stipulated facts “form[] the

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basis of [the plaintiff’s] conviction.”

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970.

See Sanders, 14 F.4th at

Here, plaintiff stipulated that the police reports

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concerning the incident formed the factual basis for his plea.

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(See Docket No. 8-2 at 69.)

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of events in which plaintiff refused to follow police commands,

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acted “aggressively” and engaged in “pre assaultive” behavior,

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and used physical force as the officers arrested him by, inter

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alia, kicking an officer and attacking a police dog.

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stipulate that all of the officers that were involved . . . and

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that were listed in any of the police reports” were “acting

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within their course and scope of their duties.”

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The police reports describe a course

(See id. at

At the plea hearing, plaintiff also “agree[d] to

(Id. at 66-67.)

In contradiction to the stipulated factual basis for

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the plea, the complaint states that plaintiff “did not interfere

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with officers,” “posed no threat to the officers,” and “made no

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attempt to harm, aggravate, or endanger the officers.”

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¶¶ 11, 15.)

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was “excessive,” “unreasonable,” and “without legal

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justification” or “provocation.”

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(Compl.

The complaint alleges that officers used force that

(Id. ¶¶ 11, 17, 21, 24, 26.)

Plaintiff’s civil complaint is entirely inconsistent
with the stipulated basis for his conviction.
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And plaintiff

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“cannot stipulate to the lawfulness of” the officers’ conduct

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throughout the incident and “then use the very same act[s] to

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allege an excessive force claim,” as “[s]uccess on such a claim

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would necessarily imply that his conviction was invalid.”

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Sanders, 14 F.4th at 972–73 (internal quotation marks omitted).

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See

Accordingly, the court concludes that plaintiff’s

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excessive force claim is Heck-barred.

See Yount v. City of

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Sacramento, 43 Cal. 4th 885, 898 (2008) (“[T]o the extent that

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[plaintiff’s] section 1983 claim alleges that he offered no

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resistance, that he posed no reasonable threat of obstruction to

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the officers, and that the officers had no justification to

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employ any force against him at the time [force was used], the

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claim is inconsistent with his conviction for resisting the

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officers and is barred under Heck.”); Rodriguez v. City of

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Modesto, 535 F. App’x 643, 644–45 (9th Cir. 2013) (“[T]o the

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extent Plaintiffs maintain they did nothing wrong and were

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arrested without reason, the district court correctly dismissed

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their § 1983 and state law claims in light of Heck . . . because

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success on such claims would necessarily imply Plaintiffs did not

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violate § 148(a)(1).”).

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While it is possible for a conviction for resisting

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officers and a civil excessive force claim to coexist, this is

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not such a case.

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stipulations attempted “to identify the particular acts of

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unlawfulness to which he is willing to plead, and to deny that he

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engaged in other specific acts,” which could have limited the

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application of Heck.

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n.5; see also Sanders, 14 F.4th at 972 (“the factual basis of a §

There is no indication that plaintiff’s

See Smith v. City of Hemet, 394 F.3d at 699

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148(a)(1) conviction encompassing multiple acts is indivisible

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for purposes of avoiding a Heck bar”).

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indication in the complaint that plaintiff seeks to hold the

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officers liable for conduct occurring either “before or after

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[plaintiff] committed the acts to which he pled.”

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City of Hemet, 394 F.3d at 699; see also Martell v. Cole, ---

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F.4th ----, 2024 WL 4259864, at *4 (9th Cir. Sept. 23, 2024) (“If

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the alleged excessive force occurred before or after the acts

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that form the basis of the § 148(a) violation, even if part of

Nor is there any

See Smith v.

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one continuous transaction, the § 1983 claim doesn’t necessarily

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imply the invalidity of [the] criminal conviction under §

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148(a)(1).”) (cleaned up).

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Accordingly, pursuant to Heck, the court must dismiss

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the excessive force claim.

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III. State Law Claims

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Under California law, the Heck doctrine “applies

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equally” to state law claims.

Yount, 43 Cal. 4th at 902.

In his

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communications with the court, plaintiff’s counsel conceded that

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Heck bars the entire action, including both the federal and state

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claims.

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counsel’s concession).)

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counsel also consents to the dismissal of the entire action.

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(See Docket No. 11.)

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Supreme Court’s holding that where a federal excessive force

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claim is Heck-barred because it would imply the invalidity of a

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conviction for resisting an officer, so too are “state tort

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claim[s] arising from the same alleged misconduct.”

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43 Cal. 4th at 902.

(See Docket No. 13 at 2 (memorializing plaintiff’s
Pursuant to Local Rule 230, plaintiff’s

These concessions align with the California

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See Yount,

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IV.

Conclusion

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For the foregoing reasons, the court concludes that the

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complaint must be dismissed in its entirety, with prejudice and

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without leave to amend.

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plaintiff does not have a viable claim for relief and amendment

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would be futile.

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1038, 1041–42 (9th Cir. 2012) (“If [plaintiff’s] claims are

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barred by Heck, filing an amended complaint would be a futile

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act.”); Okwu v. McKim, 682 F.3d 841, 846 (9th Cir. 2012) (where

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plaintiff has not “identified any amendment consistent with the

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facts she has already alleged that would give her a viable

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claim,” dismissal with prejudice and without opportunity to amend

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is appropriate).

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Because the action is Heck-barred,

See Beets v. County of Los Angeles, 669 F.3d

IT IS THEREFORE ORDERED that defendant’s motion to

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dismiss (Docket No. 8) be, and the same hereby is, GRANTED.

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action is hereby DISMISSED WITH PREJUDICE.

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directed to close the case.

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Dated:

September 23, 2024

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The

The Clerk of Court is