Price v. Galiu

Filing 55

ORDER Granting Defendant's 30 Motion to Dismiss First Amended Complaint. If Plaintiff elects to file a second amended complaint, he must do so within twenty (20) days of the date of this Order. Signed by Judge Roger T. Benitez on 8/7/2017.(All non-registered users served via U.S. Mail Service)(knb)

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I, '' 1 r-·1L.ED 2 t:i/ AUG-$ At1\0i28 3 -_ 1J c 01«'!>\CT COURT ·;,BG f!~~~?,'it-61~'1 ~:-;Ct ciF c AlffGiHi!A 4 DEPUTY 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 IMMANUAL C. PRICE, Case No.: 3:16-cv-00412-BEN-PCL Plaintiff, 12 13 v. 14 DEPUTY ALEXANDRU GALIU, Deputy Sheriff in San Diego, et al., 15 ORDER GRANTING DEFENDANT'S MOTION TO DISMISS FIRST AMENDED COMPLAINT Defendants. 16 17 On January 30, 2017, Defendant Deputy Alexandru Galiu filed a Motion to 18 Dismiss Plaintiffs First Amended Complaint ("FAC"). (Docket No. 39.) On March 1, 19 2017, the Court took Defendant's motion under submission. (Docket No. 46.) On March 20 9, 2017, Plaintiff filed an untimely opposition to Defendant's Motion. (Docket No. 54.) 21 The Court finds the Motion suitable for determination on the papers without oral 22 argument, pursuant to Civil Local Rule 7.1.d.1. For the reasons set forth below, 23 Defendant's Motion is GRANTED. 24 Ill 25 Ill 26 Ill 27 Ill 28 Ill 3: 16-cv-00412-BEN-PCL '' BACKGROUND 1 1 2 On February 28, 2014, Plaintiff was "arrested and taken to San Diego County Jail 3 by La Mesa PD[.]" (FAC at p. 3.) On the same day, while Plaintiff was a pretrial 4 detainee, Plaintiff was escorted by Corporal Kyle Dobson and a second deputy "into a 5 'dress out' room, where incoming pretrial detainees trade out their street clothes for the 6 jail outfit." (Id.) The deputies watched Plaintiff undress and when he was completely 7 nude, "Corporal Kyle Dobson gave an order to 'face away from him, bend over and 8 spread the buttocks."' (Id.) "After doing this apparently unsatisfactorily Dobson, 9 ordered Plaintiffs hands behind his back [sic]." (Id.) 10 Plaintiff, aware that he had "a small bindle of marijuana" between his buttocks, 11 "grabbed the small bindle and put it in his mouth" instead of following Dobson's order. 12 (Id.) Dobson and the deputy "rushed toward Plaintiff," and Dobson yelled "give me the 13 drugs." (Id.) The deputies forced Plaintiff into a sitting position, applied force to 14 Plaintiffs throat, and tried to grab the bindle out of Plaintiffs mouth. During the 15 struggle, the bindle became lodged in Plaintiffs throat, preventing him from complying 16 with the deputies' orders to spit out the drugs. Plaintiff began to panic and "began to flail 17 in an attempt to gain enough space to cough up the bindle." (Id.) 18 "Suddenly Plaintiff felt a crushing punch to the left eye from Defendant Galiu." 19 (Id. at pp. 2-3.) Plaintiff further alleges he was then "slammed to the ground," at which 20 point the bindle became dislodged from his throat. (Id. at p. 3.) Defendant then "kneed" 21 Plaintiff in the nose twice. (Id.) 22 Plaintiff asserts Defendant's actions caused him to sustain a "serious orbital 23 fracture to the left orbital bone," for which he has undergone an unsuccessful surgery 24 resulting in some vision loss, and a fractured nose. (Id.) 25 Ill 26 27 1 28 The following overview of the relevant facts is drawn from the allegations of Plaintiffs FAC. (Docket No. 1.) The Court is not making findings of fact. 2 3:16-cv-00412-BEN-PCL '' 1 2 PROCEDURAL HISTORY On February 16, 2016, Plaintiff, proceedingpro se and informa pauperis, brought 3 this action under 42 U.S.C. § 1983, alleging a federal civil rights claim for cruel and 4 unusual punishment against Defendant. (Docket No. 1.) After the Court granted in part 5 both Defendant's motion to dismiss and Plaintiff's motion to amend his pleading (Docket 6 No. 36), Plaintiff timely filed the operative FAC. (Docket No. 38.) Defendant now 7 moves for dismissal of Plaintiff's FAC for failure to state a claim. 8 LEGAL STANDARD 9 Under Federal Rule of Civil Procedure 12(b)(6), dismissal is appropriate if, taking 10 all factual allegations as true, the complaint fails to state a plausible claim for relief on its 11 face. Fed. R. Civ. P. 12(b)(6); Bell At!. Corp. v. Twombly, 550 U.S. 544, 556-57 (2007); 12 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (requiring plaintiff to plead factual content 13 that provides "more than a sheer possibility that a defendant has acted unlawfully"). 14 Under this standard, dismissal is appropriate ifthe complaint fails to state enough facts to 15 raise a reasonable expectation that discovery will reveal evidence of the matter 16 complained of, or if the complaint lacks a cognizable legal theory under which relief may 17 be granted. Twombly, 550 U.S. at 556. "A claim is facially plausible 'when the plaintiff 18 pleads factual content that allows the court to draw the reasonable inference that the 19 defendant is liable for the misconduct alleged.'" Zixiang Liv. Kerry, 710 F.3d 995, 999 20 (9th Cir. 2013) (quoting Iqbal, 556 U.S. at 678). "Threadbare recitals of the elements of 21 a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 22 U.S. at 678. 23 The Court must assume the truth of the facts presented in a plaintiff's complaint 24 and construe inferences from them in the light most favorable to the nonmoving party 25 when reviewing a motion to dismiss under Rule 12(b)(6). Erickson v. Pardus, 551 U.S. 26 89, 94 (2007). The complaint is considered in its entirety, "as well as other sources 27 courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, 28 documents incorporated into the complaint by reference, and matters of which a court 3 3: l 6-cv-00412-BEN-PCL '' 1 may take judicial notice." Tellabs, Inc. v. Makar Issues & Rights, Ltd., 551 U.S. 308, 322 2 (2007). 2 Additionally, "a document filed prose is 'to be liberally construed,' and 'a pro 3 se complaint, however inartfully pleaded, must be held to less stringent standards than 4 formal pleadings drafted by lawyers."' Id. (quoting Estelle v. Gamble, 429 U.S. 97, 106 5 (1976)). 6 7 DISCUSSION Relying on Heck v. Humphrey, 512 U.S. 477 (1944) and Yount v. City of 8 Sacramento, 43 Cal. 4th 885 (2008), Defendant asserts that Plaintiffs claim against him 9 is barred as an impermissible collateral attack on his criminal conviction for California 10 Penal Code section 69 (resisting an officer with force). In response, 3 Plaintiff, citing 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 Defendant attached three documents in support of his motion to dismiss (Docket No. 39-2, Bxs. A-C), which he asserts are judicially noticeable pursuant to Federal Rules of Evidence Rule 201. The three documents, which Plaintiff did not object to, appear to be certified copies of the criminal complaint for case number SDC255402 against Plaintiff (Id., Ex. A), Plaintiffs plea form for case number SDC255402 (Id., Ex. B), and the California Superior Court's Judgment Minutes on Sentencing for case number SDC255402 (Id., Ex. C). Because these documents appear to directly pertain to the matters at issue, the Court shall take judicial notice of them. Fed. R. Evid. 201; Daughtery v. Wilson, No. 08CV408-WQH-BLM, 2009 WL 2579670, at *10 (S.D. Cal. Aug. 18, 2009) ("Generally, courts 'will not consider facts outside the record developed before the district court.' ... However, courts 'may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to the matters at issue."') (quoting United States ex rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir. 1992)). 3 As noted above, Plaintiff filed an untimely opposition to the instant motion to dismiss, wherein Plaintiff requested the Court incorporate by reference the opposition he filed to Defendant's prior motion to dismiss his initial Complaint (Docket No. 13). Plaintiff indicated that he did not file an opposition because the instant motion to dismiss "does not raise any new ground, not addressed in Plaintiffs first 'Reply to Defendants Motion to Dismiss [sic]."' (Docket No. 54 at p. 2.) In the interests of promoting justice and judicial economy, the Court has reviewed the relevant portions of Plaintiffs opposition (Docket No. 13) in deciding the instant motion. Fed. R. Civ. P. 1. However, the Court cautions Plaintiff against any future assumptions that he may file an untimely response because his arguments had been previously addressed in an earlier filing. 4 3:16-cv-00412-BEN-PCL '' 1 Smith v. City ofHemet, 394 F.3d 689 (9th Cir. 2005), argues that his claim is not barred 2 because a successful excessive force claim against Defendant would not necessarily 3 imply the invalidity of his conviction for California Penal Code section 69. See id. at 4 696. The Court finds that Plaintiffs claim against Defendant, as pied, is barred by Heck. 5 "Heck precludes a Section 1983 claim based on actions which would 'render a 6 conviction or sentence invalid' where that conviction has not been reversed, expunged, or 7 called into question by issuance of a writ of habeas corpus." Benavides v. City ofArvin, 8 No. F CV 12-0405 LJO GSA, 2012 WL 1910259, at *4 (E.D. Cal. May 25, 2012) (citing 9 Heck, 512 U.S. at 486). In other words, Heck requires dismissal of a Section 1983 claim 10 "if a criminal conviction arising out of the same facts stands and is fundamentally 11 inconsistent with the unlawful behavior for which section 1983 damages are sought[.]" 12 Id. (quoting Smithhart v. Towers, 79 F.3d 951, 952 (9th Cir. 1996) (per curiam)). A 13 district court determining whether the Heck doctrine applies must consider whether a 14 plaintiffs success in his or her Section 1983 suit would '"necessarily imply' or 15 'demonstrate' the invalidity of the earlier conviction or sentence[.]" Beets v. Cnty. ofLos 16 Angeles, 669 F.3d 1038, 1042 (9th Cir. 2012) (quoting Heck, 512 U.S. at 487). However, Heck does not shield liability from every Section 1983 claim solely 17 18 because the claim is based on the same facts of the plaintiffs underlying criminal 19 conviction. Benavides v. City ofArvin, No. F CV 12-0405 LJO GSA, 2012 WL 1910259, 20 at *4. In Smith v. City ofHemet, the Ninth Circuit "recognized that an allegation of 21 excessive force by a police officer would not be barred by Heck if it were distinct 22 temporally or spatially from the factual basis for the person's conviction." Beets, 669 23 F .3d at 1042 (citing Smith, 394 F .3d at 699). In particular, a plaintiff may bring a Section 24 1983 claim "ifthe use of excessive force occurred subsequent to the conduct on which 25 his conviction was based." Smith, 394 F.3d at 698 (emphasis in original omitted). 26 Additionally, the California Supreme Court in Yount explained that there may be 27 cases in which Heck would not bar a plaintiffs Section 1983 claims: 28 Ill 5 3: 16-cv-00412-BEN-PCL 1. '. 1 2 3 4 5 6 7 For example, a defendant might resist a lawful arrest, to which the arresting officers might respond with excessive force to subdue him. The subsequent use of excessive force would not negate the lawfulness of the initial arrest attempt, or negate the unlawfulness of the criminal defendant's attempt to resist it. Though occurring in one continuous chain of events, two isolated factual contexts would exist, the first giving rise to criminal liability on the part of the criminal defendant, and the second giving rise to civil liability on the part of the arresting officer. 8 Yount, 43 Cal. 4th at 899 (quoting Jones v. Marcum, 197 F. Supp. 2d 991, 1005, fn. 9 9 (S.D. Ohio 2002)). If, on the other hand, the facts giving rise to a plaintiffs claim cannot 10 be separated into distinct incidents, or requires a court to engage in "temporal hair- 11 splitting," such a claim is properly determined to be barred by Heck. Fetters v. Cnty. of 12 Los Angeles, 243 Cal. App. 4th 825, 840 (2016) (citing Truong v. Orange Cnty. Sheriff's 13 Dept., 129 Cal. App. 4th 1423, 1429 (2005)); see also Beets, 669 F.3d at 1044. 14 Applying these considerations to the instant case, Plaintiffs claim against 15 Defendant, as pied, does not survive Defendant's Heck challenge. According to the 16 criminal complaint, Plaintiff was charged with, inter alia, resisting an officer with force 17 under California Penal Code section 69 (Count 1), and battery upon Defendant (Count 3). 18 (Docket 39-2, Ex. A.) Count 1 was based on the following allegations: 19 20 21 22 23 On or about February 28, 2014, IMMANUEL CHRISTIAN PRICE did unlawfully attempt by means of threats and violence to deter and prevent another who was then and there an executive officer from performing a duty imposed upon such officer by law, and did knowingly resist by the use of force and violence said executive officer in the performance of his/her duty, in violation of PENAL CODE SECTION 69. 24 (Id. at p. 5.) In contrast, Count 3 was based on the following allegations: 25 On or about February 28, 2014, IMMANUEL CHRISTIAN PRICE did willfully and unlawfully use force and violence upon the person of Deputy Galiu when said defendant, IMMANUEL CHRISTIAN PRICE knew and reasonably should have known that said person was a peace officer then 26 27 28 6 3: 16-cv-00412-BEN-PCL 1 2 and there engaged in the performance of his/her duties, in violation of PENAL CODE SECTION 243(b). 3 (Id.) The incidents giving rise to these charges occurred on the same date the alleged 4 Section 1983 violation against Plaintiff occurred. (Id.; FAC at p. 3.) Ultimately, Plaintiff 5 pied guilty to Count 1 and another count for possession of a controlled substance while in 6 jail/prison. (Docket 39-2, Exs. A, B.) 7 Contrary to Defendant's assertion, it is not clear from the criminal complaint, plea 8 form, or sentencing minutes that "Plaintiff was criminally prosecuted for violating Penal 9 Code section 69 as a result of the encounter with defendant." (Docket No. 39-1, Mot. at 10 p. 4.) As Plaintiff accurately argues in his opposition, Count 1, the only relevant count he 11 pied guilty to, does not identify Defendant as the officer he resisted. In addition, the FAC 12 alleges, and Defendant did not dispute, that at least two other officers were involved in 13 the incident leading up to Defendant's alleged use of excessive force. At the same time, 14 the FAC indicates that Plaintiffs conviction for resisting an officer arises out of same 15 facts as the incident for which he now seeks damages. Plaintiff does not allege that his 16 conviction has been "reversed, expunged, or called into question by issuance of a writ of 17 habeas corpus." Benavides, 2012 WL 1910259, at *4. Thus, as pied, it appears Heck 18 applies to Plaintiffs claim against Defendant, and the Court must determine whether 19 Plaintiff is barred from recovery. 20 Relying solely on Smith, Plaintiffs opposition essentially argues that because "a 21 variety of accusations" against him could form the basis of his conviction for California 22 Penal Code section 69, he "is not necessarily attacking the validity of his conviction." 23 (Docket No. 13, Pl.'s Opp'n at pp. 5-6.) But this is not the standard the Court is bound to 24 apply. Rather, to overcome a Heck challenge, Plaintiff must demonstrate that his claim is 25 not "fundamentally inconsistent with the unlawful behavior for which section 1983 26 damages are sought." Smith, 394 F.3d at 695 (quoting Smithart, 79 F.3d at 952) (internal 27 quotations omitted). Here, Plaintiffs FAC does not articulate facts that plausibly 28 establish that his claim arises from either a distinct incident within a continuous chain of 7 3:16-cv-00412-BEN-PCL .. 1 events, Yount, 43 Cal. 4th at 899, or is distinct temporally and spatially from the incident 2 3 which led to his conviction for resisting an officer, Smith, 394 F.3d at 699. As a result, the Court finds Plaintiffs F AC, as alleged, is barred under Heck, and 4 must be dismissed. Therefore, Defendant's motion to dismiss for failure to state a claim 5 is GRANTED. However, because the Court is unable to discern from the facts in 6 Plaintiffs F AC or the judicially noticeable documents provided by Defendant whether 7 amendment would be futile, the Court grants Plaintiff leave to amend his pleading. 8 CONCLUSION 9 For the reasons stated above, Defendant's Motion to Dismiss is GRANTED. 10 Plaintiffs F AC is DISMISSED without prejudice. If Plaintiff elects to file a second 11 amended complaint, he must do so within twenty (20) days of the date of this Order. If 12 Plaintiff does not file a second amended complaint, the Clerk of the Court shall close this 13 case without further order of this Court. 14 15 16 IT IS SO ORDERED. DATED: August * r' 2017 17 18 19 20 21 22 23 24 25 26 27 28 8 3: l 6-cv-00412-BEN-PCL

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