Russell v. Lopez et al

Filing 75

ORDER denying Defendant D. Doren's 34 Motion to Dismiss. Defendant Doren filed a Notice of Joinder to 28 Motion to Dismiss by Defendants Carrion and Hodge. Court dismissed Defendants Carrion and Hodge, but allowed Defendant Doren's Joinder to remain a valid motion. Court now denies this Motion to Dismiss. Signed by Judge Cynthia Bashant on 9/25/2017. (jah)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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KARL J. RUSSELL,

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Case No. 15-cv-02280-BAS-KSC
Plaintiff,

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ORDER DENYING MOTION TO
DISMISS

v.

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[ECF Nos. 28, 34]

RICHARD LOPEZ, et al.,

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Defendants.

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Defendants Carrion and Hodge filed this Motion to Dismiss arguing that

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Plaintiff’s Section 1983 claim was barred by Heck v. Humphrey, 512. U.S. 477

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(1994). (ECF No. 28.) Defendant Doren filed a Notice of Joinder to this Motion.

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(ECF No. 34.) Carrion and Hodge were later dismissed from the action, but the

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Court allowed Defendant Doren’s Joinder to remain a valid motion. (ECF No. 72.)

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For the reasons stated below, the Court now DENIES this Motion to Dismiss.

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I.

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STATEMENT OF FACTS
Plaintiff Russell, an inmate at R.J. Donovan Correctional Facility

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(“Donovan”), was involved in an incident with Correctional Officer Lopez.

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Attached to Plaintiff’s First Amended Complaint (“FAC”) are the various reports of

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this incident. (ECF No. 21.) Plaintiff was found guilty of battery on C.O. Lopez
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and sentenced to 150 days loss of behavioral credit. (ECF No. 21 at 19.) The

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battery charges are supported by reports indicating that when C.O. Lopez attempted

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to handcuff Plaintiff, Plaintiff resisted and struck Lopez with his fist. (Id.)

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Defendant Doren was not the victim of this battery. Instead, he was a witness

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who was called in to help handcuff Plaintiff after the battery occurred. (ECF No. 21

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at 36.) Plaintiff claims that Doren used excessive force against him “by slamming

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his knee in Inmate Russell’s side and slamming Inmate Russell’s legs.” (FAC,

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Count 1.)

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II.

ANALYSIS

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A.

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A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil

Legal Standard

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Procedure tests the legal sufficiency of the claims asserted in the complaint. Fed. R.

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Civ. P. 12(b)(6); Navarro v. Block, 250 F.3d 729, 731 (9th Cir. 2001). The court

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must accept all factual allegations pleaded in the complaint as true and must

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construe them and draw all reasonable inferences from them in favor of the

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nonmoving party. Cahill v. Liberty Mutual Ins. Co., 80 F.3d 336, 337-38 (9th Cir.

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1996).

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Courts may not usually consider material outside the complaint when ruling

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on a motion to dismiss. Hal Roach Studios, Inc. v. Richard Feiner & Co., 896 F.2d

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1542, 1555 n.19 (9th Cir. 1990). However, documents specifically identified in the

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complaint whose authenticity is not questioned by parties may also be considered.

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Fecht v. Price Co., 70 F.3d 1078, 1080 n.1 (9th Cir. 1995), superseded by statute on

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other grounds.

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B.

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Under Heck v. Humphrey, a civil rights claim is disallowed if rendering a

Heck v. Humphrey

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judgment for a plaintiff would necessarily imply that a previous conviction or

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sentence is invalid. 512 U.S. 477, 489 (1994). This rule has also been invoked in

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prison disciplinary hearings involving good-time credits. Edwards v. Balisok, 520
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U.S. 641, 648 (1997). However, when a civil rights claim does not necessarily

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implicate the underlying disciplinary action, it may proceed. See Muhammad v.

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Close, 540 U.S. 749, 754-55 (2004).

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In Cunningham v. Gates, 312 F.3d 1148 (9th Cir. 2002), cited by Defendants

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in this Motion to Dismiss, the Ninth Circuit found that Heck barred a prisoner,

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convicted of felony murder and resisting arrest, from bringing his civil rights

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excessive force claim because his underlying conviction required proof of an

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“intentional provocative act” which was defined as “not in self defense.”

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Cunningham, 312 F.3d at 1152. Essentially, a finding that the police used

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unreasonable force while effecting the plaintiff’s arrest, the court held, would “call

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into question” the validity of factual disputes which had necessarily already been

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resolved in the criminal action against him. Id. at 1154.

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However, in Smith v. City of Hemet, 394 F.3d 689 (9th Cir. 2000), the Ninth

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Circuit considered whether a prisoner’s excessive force allegations were barred by

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Heck after pleading guilty to resisting arrest pursuant to Cal. Penal Code §148(a)(1).

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The Smith court reasoned:

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A conviction based on conduct that occurred before the officers commence

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the process of arresting the defendant is not “necessarily” rendered invalid by

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the officers’ subsequent use of excessive force . . . . Similarly, excessive force

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used after a defendant has been arrested may properly be the subject of a

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§1983 action notwithstanding the defendant’s conviction on a charge of

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resisting an arrest that was itself lawfully conducted.

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Id. at 696 (emphasis in original). Accordingly, the Smith court found that “Smith’s

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§1983 action is not barred . . . because the excessive force may have been employed

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against him subsequent to the time he engaged in the conduct that constituted the

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basis for his conviction.” Id. at 693. Under the circumstances, the Ninth Circuit

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held that Smith’s §1983 action “neither demonstrated nor necessarily implied the

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invalidity of his conviction.” Id.; see also Sanford v. Motts, 258 F.3d 1117, 1120
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(9th Cir. 2001) (“If [the officer] used excessive force subsequent to the time Sanford

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interfered with [the officer’s] duty, success in her section 1983 claim will not

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invalidate her conviction. Heck is no bar.”)

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The core judicial inquiry, in a § 1983 excessive force claim is “‘whether force

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was applied in a good-faith effort to maintain or restore discipline, or maliciously

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and sadistically to cause harm.’” Wilkins v. Gaddy, 559 U.S. 34, 37 (2010) (quoting

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Hudson v. McMillian, 503 U.S. 1, 7 (1992). “When prison officials maliciously and

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sadistically use force to cause harm,” the U.S. Supreme Court has recognized,

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“contemporary standards of decency always are violated.” Hudson, 503 U.S. at 9.

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“[T]he test for whether force is reasonable or excessive is ‘whether the officers’

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actions are objectively reasonable in light of the facts and circumstances confronting

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them, without regard to their underlying intent or motivation.’” Hooper v. Cnty. of

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San Diego, 629 F.3d 1127, 1133 (9th Cir. 2011) (quoting Graham v. Connor, 490

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U.S. 386, 397 (1989).

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Defendant Doren argues that finding his use of force was unwarranted, as

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Plaintiff alleges in the FAC, “would be at odds with the finding that the officers

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used force in an attempt to control Plaintiff’s violent resistance, and with the finding

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that in the course of Plaintiff’s violent resistance, Plaintiff used physical violence

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(battery on one of the officers) which necessitated their use of force.” (ECF No. 28,

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pg. 5.) The Court disagrees.

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Doren was not the victim of the battery, and a jury could find that Doren’s

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conduct occurred after Plaintiff was subdued. Thus a finding of excessive force

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would not be inconsistent with the battery conviction. Or a jury could find that,

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regardless of Plaintiff’s battery against Lopez, the amount of force used by Doren

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was not applied in a good faith effort to restrain or restore discipline, but was

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applied maliciously and sadistically to cause harm. Therefore, rendering a judgment

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for Plaintiff in this civil rights case would not necessarily imply that the battery

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conviction was invalid, and Heck is inapplicable.
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IV.

CONCLUSION
For the foregoing reasons, Defendant Doren’s Motion to Dismiss (ECF Nos.

28, 34.) is DENIED.
IT IS SO ORDERED.
DATED: September 25, 2017

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