Beckway v. DeShong et al

Filing 112

ORDER by Judge Thelton E. Henderson granting in part and denying in part 101 Motion for Reconsideration; granting in part and denying in part 103 Motion for Reconsideration. (tehlc4, COURT STAFF) (Filed on 7/28/2010)

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Beckway v. DeShong et al Doc. 112 1 2 3 4 5 6 7 8 9 10 v. IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA BRENT BECKWAY, Plaintiff, NO. C07-5072 TEH ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS FOR RECONSIDERATION DEPUTY PAUL DESHONG, et al., Defendants. United States District Court 11 For the Northern District of California This matter is before the Court on two motions for reconsideration, the first filed by 12 Defendant Deputy Paul DeShong ("DeShong"), and the second by Defendants Deputy 13 Richard Ward ("Ward"), Sheriff Rodney Mitchell, County of Lake, and County of Lake 14 Sheriff's Department (collectively, "Defendants"). Defendants ask the Court to reconsider 15 its May 12, 2010 Order Granting in Part and Denying in Part Defendants' Motions for 16 Judgment on the Pleadings (Doc. 89) ("May 12, 2010 Order"), in particular the Court's 17 conclusion that Plaintiff Brent Beckway ("Beckway") is not currently in custody for 18 purposes of habeas corpus. For good cause appearing, Defendants' motions are GRANTED 19 IN PART and DENIED IN PART. 20 21 BACKGROUND 22 A detailed factual and procedural background of this case is set out in the Court's May 23 12, 2010 Order, and will not be repeated here. In summary, Beckway's lawsuit arises out of 24 his October 27, 2006 arrest by Ward and DeShong, deputies with the County of Lake 25 Sheriff's Department, for striking and threatening his neighbor following a dispute over the 26 sale of a cord of wood. Beckway pleaded nolo contendere to a charge of resisting arrest (Cal. 27 Pen. Code 148(a)(1)) on October 27, 2009, and was sentenced to "one year summary 28 probation," with the "conditions that [he] obey all laws, commit no same or similar offenses Dockets.Justia.com 1 and that he pay a fine in the amount of $160[.]" Preston Decl. (Doc. 72), Ex. F at 6:9-15. 2 Beckway was also required to "[n]otify the Court of any changes in mailing address, physical 3 address or telephone number," and to "[f]ollow all orders of the Court." Id., Ex. G at 3. 4 Beckway filed this lawsuit on October 2, 2007, bringing claims for excessive use of force 5 and false arrest under 42 U.S.C. 1983, as well as state law claims for battery, negligence, 6 and intentional infliction of emotional distress.1 He alleges that Ward and DeShong applied 7 excessive force and seriously injured his left knee. 8 In Heck v. Humphrey, the Supreme Court barred a 1983 plaintiff from recovering 9 damages for "harm caused by actions whose unlawfulness would render a conviction or 10 sentence invalid," unless the plaintiff has proven that the conviction has been reversed, United States District Court 11 expunged, or otherwise declared invalid or called into question. 512 U.S. 477, 486-87 For the Northern District of California 12 (1994). Defendants, in their motions for judgment on the pleadings, urged the Court to apply 13 the Heck rule to bar Beckway's excessive force claim, because the use of excessive force by 14 an officer would necessarily preclude a section 148 conviction.2 In opposition, Beckway 15 asserted two bases for the Court to find Heck inapplicable. 16 First, he invoked the exception to the Heck rule carved out by Justice Souter in his 17 concurrence to Heck, 512 U.S. at 491, which a majority of justices later endorsed in Spencer 18 v. Kemna, 523 U.S. 1, 20-21 (1998) (Souter, J., concurring), id. at 25 n.8 (Stevens, J., 19 dissenting). According to Justice Souter, Heck should not bar the 1983 claims of a plaintiff 20 who is not "in custody" and cannot therefore "invoke federal habeas jurisdiction, the only 21 statutory mechanism besides 1983 by which individuals may sue state officials in federal 22 court for violating federal rights." Heck, 512 U.S. at 500 (Souter, J., concurring). Beckway 23 asserted that he was not in custody and therefore could not seek habeas relief, a position 24 Defendants in reply did not dispute. After observing that "it is undisputed that Beckway 25 26 This Court dismissed the false arrest claim based on collateral estoppel in its May 12, 2010 Order, a ruling that is not at issue on these motions. 2 1 The nolo contendere plea "shall be considered the same as a plea of guilty" and, 27 upon that plea, "the court shall find the defendant guilty." Cal. Pen. Code 1016(3). The nolo contendere plea is the equivalent of a conviction for purposes of Heck. See Nuno v. 28 County of San Bernardino, 58 F. Supp. 2d 1127, 1135 (C.D. Cal. 1999). 2 1 is not currently in custody, and that habeas corpus is not an available avenue of relief," this 2 Court followed Justice Souter's rationale in concluding that the Heck bar was inapplicable 3 here. May 12, 2010 Order at 8-9. 4 Beckway's second argument relied on the Ninth Circuit's holding in Smith v. City of 5 Hemet that an action is not barred by Heck where "the excessive force may have been 6 employed against [the plaintiff] subsequent to the time he engaged in the conduct that 7 constituted the basis for his conviction." 394 F.3d 689, 693 (9th Cir. 2005). Beckway 8 argued that the excessive force underlying his claim the stomping on his knee by one of the 9 two deputies occurred after his arrest had been effected, in which case his claim would not 10 be inconsistent with his conviction. Since the Court had already found Heck to be United States District Court 11 inapplicable based on Beckway's first argument, however, it concluded that it did not need to For the Northern District of California 12 rule on this second ground. 13 Defendants now challenge this Court's ruling on Beckway's first argument. 14 Defendants had presented evidence that, on October 27, 2009, Beckway was sentenced to 15 one year of summary probation. In reliance on that evidence, Defendants now argue for 16 the first time that habeas was (and remains) available to Beckway: as his probation term 17 does not expire until October 27, 2010, Defendants contend that Beckway is currently "in 18 custody" for habeas purposes. Since the Court did not previously consider the material fact 19 of Beckway's summary probation, the Court granted Defendants leave to file the motions for 20 reconsideration that are now before the Court. 21 22 LEGAL STANDARD 23 Rule 54(b) of the Federal Rules of Civil Procedure allows "any order or other 24 decision" that does not end an action to "be revised at any time before the entry of a 25 judgment adjudicating all the claims and all the parties' rights and liabilities." Under the 26 local rules of this district, one basis for allowing leave to file a motion for reconsideration is 27 the showing of a "manifest failure by the Court to consider material facts or dispositive legal 28 arguments" previously presented to the Court. Civ. L. R. 7-9(b)(3). The Court previously 3 1 granted Defendants leave to file the instant motions based on its failure to consider the 2 material fact of Beckway's probation term. See Order Granting Leave to File Motions for 3 Reconsideration (Doc. 100) at 2. 4 Since Defendants ask the Court to reconsider a ruling on motions for judgment on the 5 pleadings, the Court must continue to apply the standard governing such motions. "After the 6 pleadings are closed but early enough not to delay trial a party may move for judgment 7 on the pleadings." Fed. R. Civ. P. 12(c). "Judgment on the pleadings is proper when the 8 moving party clearly establishes on the face of the pleadings that no material issue of fact 9 remains to be resolved and that it is entitled to judgment as a matter of law." Hal Roach 10 Studios, Inc. v. Richard Feiner & Co., 896 F.2d 1542, 1550 (9th Cir. 1989). "[T]he same United States District Court 11 standard of review applicable to a Rule 12(b) motion applies to its Rule 12(c) analog," For the Northern District of California 12 because the motions are "functionally identical." Dworkin v. Hustler Magazine, Inc., 867 13 F.2d 1188, 1192 (9th Cir. 1989). The Court must "accept all material allegations in the 14 complaint as true," and resolve all doubts "in the light most favorable to the plaintiff." 15 McGlinchy v. Shell Chemical Co., 845 F.2d 802, 810 (9th Cir. 1988). A court may also 16 consider, on a Rule 12(c) motion, "facts that `are contained in materials of which the court 17 may take judicial notice.'" Heliotrope Gen., Inc. v. Ford Motor Co., 189 F.3d 971, 981 n.18 18 (9th Cir. 1999) (quoting Barron v. Reich, 13 F.3d 1370, 1377 (9th Cir. 1994)). 19 20 DISCUSSION 21 The Court begins by considering whether habeas is available to Beckway because he 22 is in custody by virtue of his summary probation. If habeas is available, Justice Souter's 23 exception to Heck does not apply and the Court will address the question raised by 24 Beckway's second argument: whether his allegation that excessive force occurred following 25 his arrest removes this claim from the scope of Heck. 26 // 27 // 28 // 4 1 I. 2 Is Beckway currently "in custody" for habeas purposes? Justice Souter concurred in Heck out of concern that the Court's majority opinion 3 could be interpreted to "needlessly place at risk the rights of those . . . not `in custody' for 4 habeas purposes." Heck, 512 U.S. at 500. Since "individuals not `in custody' cannot invoke 5 federal habeas jurisdiction," a requirement that they "show the prior invalidation of their 6 convictions or sentences in order to obtain 1983 damages for unconstitutional conviction or 7 imprisonment" would "deny any federal forum for claiming a deprivation of federal rights to 8 those who cannot first obtain a favorable state ruling." Id. He therefore concluded with the 9 agreement of four other justices that "a former prisoner, no longer `in custody,' may bring a 10 1983 action establishing the unconstitutionality of a conviction or confinement without United States District Court 11 being bound to satisfy a favorable-termination requirement that it would be impossible as a For the Northern District of California 12 matter of law for him to satisfy." Spencer, 523 U.S. at 21 (Souter, J., concurring). 13 Justice Souter's concurrences carve out an exception to the Heck bar for those not in 14 custody because habeas relief is available only to those who are. The key question on 15 Defendants' instant motion is what qualifies as "in custody." The federal habeas statute 16 provides that a federal court "shall entertain an application for a writ of habeas corpus in 17 behalf of a person in custody pursuant to the judgment of a State court only on the ground 18 that he is in custody in violation of the Constitution or laws or treaties of the United States." 19 28 U.S.C. 2254(a) (emphasis added). The Supreme Court's "interpretation of the `in 20 custody' language has not required that a prisoner be physically confined in order to 21 challenge his sentence on habeas corpus." Maleng v. Cook, 490 U.S. 488, 491 (1989). 22 Under California law, a writ of habeas corpus may be prosecuted by "[e]very person 23 unlawfully imprisoned or restrained of his liberty, under any pretense whatever, . . . to 24 inquire into the cause of such imprisonment or restraint." Cal. Pen. Code 1473(a). The 25 writ is available not only to those who are "physically imprisoned," but also to individuals 26 "in constructive custody" like those on parole, probation, or bail. In re Wessley W., 125 Cal. 27 App. 3d 240, 246 (1981). As Justice Souter himself explained, among individuals not "in 28 custody" are "people who were merely fined, for example, or who have completed short 5 1 terms of imprisonment, probation, or parole, or who discover (through no fault of their own) 2 a constitutional violation after full expiration of their sentences." Heck, 512 U.S. at 500. 3 Beckway was sentenced to one year of summary probation on October 27, 2009, a 4 sentence that will presumptively end on the same date in 2010. "Summary probation" is 5 formally referred to as a "conditional sentence" in the California Penal Code, and is defined 6 as "the suspension of the imposition or execution of a sentence and the order of revocable 7 release in the community subject to conditions established by the court without the 8 supervision of a probation officer." Cal. Pen. Code 1203(a); see also People v. Bishop, 11 9 Cal. App. 4th 1125, 1131-32 (1992) (describing 1981 and 1982 amendments to the Penal 10 Code introducing "conditional sentence" and clarifying "that what was formerly referred to United States District Court 11 as `summary probation' or `court probation' was henceforth to be known as `conditional For the Northern District of California 12 sentence'"). The conditions for Beckway's release were to "obey all laws, commit no same 13 or similar offenses and . . . pay a fine in the amount of $160," Preston Decl. (Doc. 72), Ex. F 14 at 6:9-15, as well as to "[n]otify the Court of any changes in mailing address, physical 15 address or telephone number," and to "[f]ollow all orders of the Court," id., Ex. G at 3. 16 An individual on probation can generally petition for a writ of habeas corpus under 17 both state and federal law.3 See Jones v. Cunningham, 371 U.S. 236 (1963) (ruling that "a 18 state prisoner who has been placed on parole is `in custody'" for habeas purposes); Arketa v. 19 Wilson, 373 F.2d 582, 583 (9th Cir. 1967) (applying Jones's holding to individuals on 20 probation, observing that "[i]n California, a convict who is on probation is as much in 21 custody as one who is on parole; he remains subject to the control of the probation officer 22 and the court"); In re Wessley W., 125 Cal. App. 3d 240, 246 (1981) ("Today, the writ is 23 available to one on . . . probation[.]"). In Jones, the Supreme Court observed that the writ of 24 habeas corpus "never has been a static, narrow, formalistic remedy," but rather is one whose 25 Although Justice Souter's concurrence was concerned with avoiding the denial of 26 "any federal forum for claiming a deprivation of federal rights," Heck, 512 U.S. at 500 (emphasis added), a party is required to exhaust state remedies before pursuing habeas relief 27 in federal court. See 28 U.S.C. 2254(b), (c); Rose v. Lundy, 455 U.S. 509, 515-16 (1982). For that reason, the Court addresses the "in custody" requirement for habeas corpus on the 28 federal and state levels. 6 3 1 "scope has grown to achieve its grand purpose the protection of individuals against erosion 2 of their right to be free from wrongful restraints upon their liberty." Jones, 371 U.S. at 243. 3 With that in mind, the Court concluded that the conditions of the petitioner's parole, which 4 "confine[d] and restrain[ed] his freedom," were "enough to keep him in the `custody' of the 5 members of the Virginia Parole Board within the meaning of the habeas corpus statute." Id. 6 The Court "reasoned that the petitioner's release from physical confinement under the 7 sentence in question was not unconditional; instead, it was explicitly conditioned on his 8 reporting regularly to his parole officer, remaining in a particular community, residence, and 9 job, and refraining from certain activities." Maleng, 490 U.S. at 491 (discussing Jones). 10 Jones was the first in a line of Supreme Court decisions expanding the scope of United States District Court 11 habeas corpus beyond challenges to the convictions of "prisoners actually in the physical For the Northern District of California 12 custody of the State." Lehman v. Lycoming County Children's Servs. Agency, 458 U.S. 502, 13 508 (1982). In Carafas v. LaVallee, 391 U.S. 234, 237-38 (1968), the Court concluded that a 14 habeas petitioner's unconditional release during his action's pendency did not moot a claim 15 that was filed when he was in physical custody, because he still faced the "collateral 16 consequences" of his conviction. The Court later found that a defendant who had been 17 released on his own recognizance post-sentencing but pre-incarceration was "in custody" for 18 habeas purposes, because he was "subject to restraints `not shared by the public generally.'" 19 Hensley v. Municipal Court, 411 U.S. 345, 351 (1973) (citing Jones, 371 U.S. at 240). Those 20 decisions "have limited the writ's availability to challenges to state-court judgments in 21 situations where as a result of a state-court criminal conviction a petitioner has suffered 22 substantial restraints not shared by the public generally." Lehman, 458 U.S. at 510. The 23 question before this Court, then, is whether Beckway's summary probation subjects him to 24 "substantial restraints not shared by the public generally." 25 The parties have cited no cases addressing whether summary probation under 26 California law is a sufficient restraint on liberty to qualify as custody for habeas corpus 27 purposes. An individual sentenced to summary probation is "subject to conditions 28 established by the court." Cal. Pen. Code 1203(a). Summary probation falls within section 7 1 1203.2 of the California Penal Code, which dictates the procedures to be followed when a 2 condition of probation is violated: 3 4 5 6 7 8 9 10 At any time during the probationary period of a person released on probation under the care of a probation officer pursuant to this chapter, or of a person released on conditional sentence or summary probation not under the care of a probation officer, if any probation officer or peace officer has probable cause to believe that the probationer is violating any term or condition of his or her probation or conditional sentence, the officer may, without warrant or other process and at any time until the final disposition of the case, rearrest the person and bring him or her before the court or the court may, in its discretion, issue a warrant for his or her rearrest. Upon such rearrest, or upon the issuance of a warrant for rearrest the court may revoke and terminate such probation if the interests of justice so require and the court, in its judgment, has reason to believe from the report of the probation officer or otherwise that the person has violated any of the conditions of his or her probation, has become abandoned to improper associates or a vicious life, or has subsequently committed other offenses, regardless whether he or she has been prosecuted for such offenses. United States District Court 11 For the Northern District of California 12 13 Cal. Pen. Code 1203.2(a) (emphasis added). In characterizing an earlier version of section 14 1203.2, the Ninth Circuit observed that "a prisoner released on probation may at any time be 15 rearrested without warrant, brought before the court, and have his probation revoked and 16 terminated upon the mere report of the probation officer." Benson v. California, 328 F.2d 17 159, 162 (9th Cir. 1964). An individual on summary probation faces those same constraints. 18 On the surface, the conditions imposed on Beckway appear no different than those 19 imposed on the general public: to "obey all laws" and "commit no same or similar offenses."4 20 For that reason, Beckway argues that his summary probation is not analogous to the cases 21 that concluded one on probation or parole is "in custody." He is not required to report to a 22 probation officer or submit to government supervision, and he does not have a suspended 23 sentence that could lead to incarceration if he violates a condition of probation. His 24 circumstances bear little resemblance to the conditions in Jones that prompted the Supreme 25 Court to conclude that parole satisfies the "in custody" requirement. 26 27 Although Beckway was also fined, a fine does not trigger habeas jurisdiction. See 28 Dreman v. Francis, 828 F.2d 6, 7 (9th Cir. 1987). 8 4 1 The Court agrees that summary probation is distinct from probation, and that the 2 restraint on Beckway's liberty is substantially less than that faced by an individual on 3 probation. However, the Supreme Court addressed the significance of such seemingly 4 innocuous conditions in a footnote to Jones: "Even the condition which requires petitioner 5 not to violate any penal laws or ordinances, at first blush innocuous, is a significant restraint 6 because it is the Parole Board members or the parole officer who will determine whether 7 such a violation has occurred." Jones, 371 U.S. at 242 n.19. Thus an individual on parole 8 could "be thrown back in jail to finish serving the allegedly invalid sentence with few, if any, 9 of the procedural safeguards that normally must be and are provided to those charged with 10 crime." Id. at 242. The possibility of a parole officer deciding whether a violation has United States District Court 11 occurred by itself constitutes, according to the Supreme Court, a "significant restraint" on For the Northern District of California 12 liberty. 13 Section 1203.2 puts Beckway in an analogous condition. "[I]f any probation officer . . 14 . has probable cause to believe that the probationer is violating any term or condition of his 15 or her . . . conditional sentence, the officer may, without warrant or other process . . . , 16 rearrest the person and bring him or her before the court[.]" Cal. Pen. Code 1203.2. 17 Although the requirement that the probationer be brought "before the court" demonstrates the 18 retention of some procedural protections, a probation officer is still entitled to make an arrest 19 "without warrant or other process." Probation can be revoked by the court if it "has reason to 20 believe from the report of the probation officer or otherwise that the person has violated any 21 of the conditions of his or her probation, has become abandoned to improper associates or a 22 vicious life, or has subsequently committed other offenses, regardless whether he or she has 23 been prosecuted for such offenses." Id. (emphasis added). The loss of procedural safeguards 24 can be a sufficient basis to conclude that an individual is "in custody" for habeas purposes. 25 See Jones, 371 U.S. at 242 n.19. Since Beckway loses some procedural protection by 26 operation of section 1203.2 while he is on summary probation, the Court concludes that he is 27 "in custody" for habeas purposes. Justice Souter's exception to Heck is therefore 28 9 1 inapplicable; the Court reverses its prior conclusion to the contrary. Defendants' motions for 2 reconsideration are GRANTED IN PART as to this issue. 3 4 II. 5 Does Beckway's claim imply the invalidity of his conviction? Beckway reasserts a second basis for determining that Heck does not bar his 1983 6 claim, which the Court concluded it did not need to address in its original order. Beckway's 7 excessive force claim would not imply the invalidity of his conviction for resisting arrest, 8 according to Beckway, because he alleges that the excessive force occurred only after his 9 arrest was effected. As this theory would remove Beckway's excessive force claim from the 10 scope of Heck, the Court agrees that it must now be addressed. United States District Court 11 For the Northern District of California Defendants contend that Beckway's claim is barred by Heck because one can only be 12 convicted of resisting an arrest that is lawful, see People v. Wilkins, 14 Cal. App. 4th 761, 13 776 (1993), but an officer "is not permitted to use unreasonable or excessive force in making 14 an otherwise lawful arrest," People v. Olguin, 119 Cal. App. 3d 39, 46 (1981). The 15 allegation that the officers used excessive force therefore implies the invalidity of his 16 conviction for resisting a lawful arrest under section 148 of the California Penal Code.5 17 Although Beckway does not dispute that an excessive force claim can be inconsistent with a 18 resisting arrest conviction, he argues that there is no such inconsistency here. As alleged in 19 his complaint, one of the two deputies stomped on his leg and fractured his knee only after 20 his "face and abdomen were on the ground" and the other deputy was holding Beckway's 21 "hands behind his back." Complaint (Doc. 1) 15. At that point, Beckway argues, his arrest 22 had already been effected and he was no longer offering resistance. The excessive force 23 therefore occurred after the events underlying his conviction for resisting arrest, and his 24 claim does not imply the invalidity of that conviction. 25 Beckway's argument relies on the Ninth Circuit's decision in Smith v. City of Hemet. 26 394 F.3d 689 (9th Cir. 2005). The plaintiff in Smith pled guilty to a section 148(a)(1) 27 Section 148 makes it a misdemeanor to "willfully resist[], delay[], or obstruct[] any . . . peace officer . . . in the discharge or attempt to discharge any duty of his or her office or 28 employment." Cal. Pen. Code 148(a)(1). 10 5 1 violation, after repeatedly defying the orders of police officers who had been called to his 2 home in response to a domestic violence complaint. Each act of defiance including 3 refusing to remove his hands from his pockets, refusing to step off his porch, and refusing to 4 put his hands on his head occurred as the police officers were lawfully investigating the 5 complaint, and each by itself "could support a conviction under [section 148] for obstructing 6 the criminal investigation." Id. at 697. Smith continued to defy section 148 by resisting the 7 officers when they came onto his porch to arrest him, at which time they deployed pepper 8 spray and sicced the police canine on him. Although the defendants cited Heck to bar 9 Smith's 1983 excessive force claim, the court recognized that the applicability of Heck 10 depended on the factual basis for Smith's guilty plea. If he pled guilty "based on his United States District Court 11 behavior after the officers came onto the porch, during the course of the arrest, his suit would For the Northern District of California 12 be barred by Heck," because "a successful 1983 action" would mean the officers had used 13 excessive force to arrest him, which would demonstrate the invalidity of his section 148 14 conviction. Id. at 697-98 (emphasis in original). If, however, his plea was based on his 15 behavior while standing "alone and untouched on his porch," then the alleged excessive force 16 "occurred subsequent to the conduct on which his conviction was based" and his 1983 17 action would not conflict with his conviction. Id. at 698 (emphasis in original). Since the 18 basis for the plea was unknown, the Ninth Circuit held that Smith's 1983 action was "not 19 barred by Heck because the excessive force may have been employed against him subsequent 20 to the time he engaged in the conduct that constituted the basis for his conviction." Id. at 21 693. As a result, the " 1983 action neither demonstrate[d] nor necessarily implie[d] the 22 invalidity" of Smith's conviction. Id. 23 The Ninth Circuit reached a similar conclusion four years earlier in Sanford v. Motts, 24 when it allowed the plaintiff, Regina Sanford, to bring an excessive force claim alleging that 25 an officer had punched her in the face after she was already handcuffed. 258 F.3d 1117 (9th 26 Cir. 2001). Sanford pled nolo contendere to a section 148(a)(1) charge after she and her 27 boyfriend had intervened with a police officer who was attempting to arrest her boyfriend's 28 brother. In her 1983 claim, she alleged that excessive force was used after her arrest. The 11 1 court concluded that "Heck is no bar": if the officer "used excessive force subsequent to the 2 time Sanford interfered with his duty, success in her section 1983 claim will not invalidate 3 her conviction." Id. at 1120. As excessive force "used after an arrest is made does not 4 destroy the lawfulness of the arrest," Sanford's case hinged on her ability to "prove the 5 punch was delivered after she was arrested." Id. 6 Likewise, in Smithart v. Towery, 79 F.3d 951 (9th Cir. 1996), the Ninth Circuit 7 confronted the applicability of Heck to a plaintiff who had pled guilty to assault with a 8 deadly weapon for driving a truck at two officers. Although Heck barred him from 9 challenging the probable cause for his arrest, it did not bar his claim that the officers used 10 excessive force after he had exited the vehicle, as his conviction was based on his conduct in United States District Court 11 the truck. Id. at 952. "To the extent that Smithart seeks to recover for defendants' alleged For the Northern District of California 12 use of excessive force during the course of his arrest, his section 1983 action may proceed," 13 the court concluded. Id. at 953. 14 To distinguish the present facts from these and similar cases cited by Beckway, 15 Defendants argue that, in Beckway's case, "there was a single act of resistance that coincided 16 with the arrest upon which Beckway's plea was entered." Defs.' Reply in Support of Motion 17 for J. on the Pleadings (Doc. 85) at 6 n.9. As a result, Defendants assert, there can be no 18 dispute over the factual basis for Beckway's plea: only one act of resistance would subject 19 Beckway to the section 148 charge, and the officers' alleged use of excessive force at that 20 time would be inconsistent with his conviction. As described in the police reports and in 21 Beckway's own complaint, Beckway's altercation with the officers appears to have been 22 brief and rapid: 23 24 25 26 27 28 DeShong . . . contacted Beckway at his home while accompanied by Ward as a cover unit. He found Beckway to be visibly intoxicated and unsteady on his feet. After soliciting Beckway's account of his altercation with Keats, DeShong notified Beckway that he was placing him under arrest. Beckway "pulled away" and "started to spin around, attempting to gain physical advantage," but then "lost his balance and fell to the deck of the residence." Preston Decl., Ex. A at 3. Beckway, having fallen forward, had his hands and arms beneath his torso; the officers attempted to gain control of his hands and soon placed him in handcuffs. As the officers helped him up, Beckway complained 12 1 2 3 of a pain to his left leg, and was transported by medical personnel to a hospital for treatment. Beckway alleges in his complaint that the officers had forcibly thrown him to the ground and stomped on the back of his left knee, causing his injury. 4 May 12, 2010 Order at 2-3. In Smith, the Ninth Circuit found multiple potential bases for the 5 plaintiff's guilty plea because he had engaged in numerous, discrete acts of defying officer 6 commands. Beckway attempts to do the same here, arguing that he engaged in distinct acts 7 his initial delay upon being told of his arrest, for example, and his pulling away from 8 DeShong's grip each of which could have formed the basis of his plea. Defendants argue 9 that such a breakdown of his arrest is infeasible, because the arrest was a fluid, uninterrupted 10 act that could be measured in seconds. Defendants urge the Court to follow instead the Ninth United States District Court 11 Circuit's decision in Cunningham v. Gates, which found the Heck bar applied because "there For the Northern District of California 12 was no break between [the plaintiff's] provocative act" and "the police response that he 13 claims was excessive." 312 F.3d 1148, 1155 (9th Cir. 2002). 14 Smith forces the Court to examine the temporal relationship between the acts 15 underlying a conviction and the acts underlying the 1983 claim. If "the excessive force 16 may have been employed against him subsequent to the time he engaged in the conduct that 17 constituted the basis for his conviction," the Heck bar does not apply. Smith, 394 F.3d at 18 693. Thus, a claim that the officers used excessive force after Beckway had already 19 submitted to their authority would not be subject to Heck. That is precisely what Beckway 20 alleges: he claims one of the deputies stomped on his leg after his arrest was already effected, 21 when he was on the ground and in the grasp of one deputy. Even if the arrest itself was fluid, 22 any excessive force that occurred after the arrest had been effected would fall beyond the 23 scope of Heck. 24 On a motion for judgment on the pleadings, the Court construes all doubts in favor of 25 the plaintiff. The Court must therefore credit Beckway's allegations as true, and as such 26 cannot conclude at this time that the excessive force claim is barred by Heck. To the extent 27 that Beckway alleges the use of excessive force following his arrest, his 1983 claim does 28 not necessarily imply the invalidity his conviction for resisting arrest. As in Sanford v. 13 1 Motts, Beckway's case hinges on his ability to prove the kick "was delivered after []he was 2 arrested." 258 F.3d at 1120. Defendants' motions for reconsideration are therefore DENIED 3 IN PART as to their requests that the Court dismiss Beckway's 1983 claim for excessive 4 force and the related state law claims for battery, negligence, and intentional infliction of 5 emotional distress. 6 7 CONCLUSION 8 For the reasons set forth above, Defendants' motions are GRANTED IN PART and 9 DENIED IN PART. The Court concludes that Beckway is currently in custody for habeas 10 purposes, and that the exception to Heck carved out by Justice Souter does not apply here. United States District Court 11 The motions are therefore GRANTED IN PART as to this issue. However, the Court also For the Northern District of California 12 finds that Heck does not bar Beckway's claim that excessive force was used after his arrest. 13 Judgment on the pleadings is therefore DENIED IN PART as to Beckway's 1983 claim 14 and the related state law claims for battery, negligence, and intentional infliction of 15 emotional distress. 16 17 IT IS SO ORDERED. 18 19 Dated: 7/28/10 20 21 22 23 24 25 26 27 28 14 THELTON E. HENDERSON, JUDGE UNITED STATES DISTRICT COURT

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