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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DEPUTY

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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IMMANUAL C. PRICE,

Case No.: 3:16-cv-00412-BEN-PCL
Plaintiff,

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v.

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DEPUTY ALEXANDRU GALIU,
Deputy Sheriff in San Diego, et al.,

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ORDER GRANTING DEFENDANT'S
MOTION TO DISMISS FIRST
AMENDED COMPLAINT

Defendants.

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On January 30, 2017, Defendant Deputy Alexandru Galiu filed a Motion to

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Dismiss Plaintiffs First Amended Complaint ("FAC"). (Docket No. 39.) On March 1,

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2017, the Court took Defendant's motion under submission. (Docket No. 46.) On March

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9, 2017, Plaintiff filed an untimely opposition to Defendant's Motion. (Docket No. 54.)

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The Court finds the Motion suitable for determination on the papers without oral

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argument, pursuant to Civil Local Rule 7.1.d.1. For the reasons set forth below,

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Defendant's Motion is GRANTED.

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BACKGROUND 1

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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
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detainee, Plaintiff was escorted by Corporal Kyle Dobson and a second deputy "into a

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'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
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nude, "Corporal Kyle Dobson gave an order to 'face away from him, bend over and

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spread the buttocks."' (Id.) "After doing this apparently unsatisfactorily Dobson,

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ordered Plaintiffs hands behind his back [sic]." (Id.)

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Plaintiff, aware that he had "a small bindle of marijuana" between his buttocks,

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"grabbed the small bindle and put it in his mouth" instead of following Dobson's order.

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(Id.) Dobson and the deputy "rushed toward Plaintiff," and Dobson yelled "give me the

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drugs." (Id.) The deputies forced Plaintiff into a sitting position, applied force to

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Plaintiffs throat, and tried to grab the bindle out of Plaintiffs mouth. During the

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struggle, the bindle became lodged in Plaintiffs throat, preventing him from complying

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with the deputies' orders to spit out the drugs. Plaintiff began to panic and "began to flail

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in an attempt to gain enough space to cough up the bindle." (Id.)

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"Suddenly Plaintiff felt a crushing punch to the left eye from Defendant Galiu."

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(Id. at pp. 2-3.) Plaintiff further alleges he was then "slammed to the ground," at which

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point the bindle became dislodged from his throat. (Id. at p. 3.) Defendant then "kneed"

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Plaintiff in the nose twice. (Id.)

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Plaintiff asserts Defendant's actions caused him to sustain a "serious orbital

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fracture to the left orbital bone," for which he has undergone an unsuccessful surgery

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resulting in some vision loss, and a fractured nose. (Id.)

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Ill

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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.
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3:16-cv-00412-BEN-PCL

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PROCEDURAL HISTORY

On February 16, 2016, Plaintiff, proceedingpro se and informa pauperis, brought

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this action under 42 U.S.C. § 1983, alleging a federal civil rights claim for cruel and

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unusual punishment against Defendant. (Docket No. 1.) After the Court granted in part

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both Defendant's motion to dismiss and Plaintiff's motion to amend his pleading (Docket

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No. 36), Plaintiff timely filed the operative FAC. (Docket No. 38.) Defendant now

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moves for dismissal of Plaintiff's FAC for failure to state a claim.

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LEGAL STANDARD

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Under Federal Rule of Civil Procedure 12(b)(6), dismissal is appropriate if, taking

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all factual allegations as true, the complaint fails to state a plausible claim for relief on its

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face. Fed. R. Civ. P. 12(b)(6); Bell At!. Corp. v. Twombly, 550 U.S. 544, 556-57 (2007);

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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (requiring plaintiff to plead factual content

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that provides "more than a sheer possibility that a defendant has acted unlawfully").

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Under this standard, dismissal is appropriate ifthe complaint fails to state enough facts to

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raise a reasonable expectation that discovery will reveal evidence of the matter

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complained of, or if the complaint lacks a cognizable legal theory under which relief may

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be granted. Twombly, 550 U.S. at 556. "A claim is facially plausible 'when the plaintiff

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pleads factual content that allows the court to draw the reasonable inference that the

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defendant is liable for the misconduct alleged.'" Zixiang Liv. Kerry, 710 F.3d 995, 999

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(9th Cir. 2013) (quoting Iqbal, 556 U.S. at 678). "Threadbare recitals of the elements of

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a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556

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U.S. at 678.

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The Court must assume the truth of the facts presented in a plaintiff's complaint

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and construe inferences from them in the light most favorable to the nonmoving party

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when reviewing a motion to dismiss under Rule 12(b)(6). Erickson v. Pardus, 551 U.S.

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89, 94 (2007). The complaint is considered in its entirety, "as well as other sources

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courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular,

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documents incorporated into the complaint by reference, and matters of which a court
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may take judicial notice." Tellabs, Inc. v. Makar Issues & Rights, Ltd., 551 U.S. 308, 322

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(2007). 2 Additionally, "a document filed prose is 'to be liberally construed,' and 'a pro

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se complaint, however inartfully pleaded, must be held to less stringent standards than

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formal pleadings drafted by lawyers."' Id. (quoting Estelle v. Gamble, 429 U.S. 97, 106

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(1976)).

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DISCUSSION

Relying on Heck v. Humphrey, 512 U.S. 477 (1944) and Yount v. City of

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Sacramento, 43 Cal. 4th 885 (2008), Defendant asserts that Plaintiffs claim against him

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is barred as an impermissible collateral attack on his criminal conviction for California

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Penal Code section 69 (resisting an officer with force). In response, 3 Plaintiff, citing

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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)).
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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.
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Smith v. City ofHemet, 394 F.3d 689 (9th Cir. 2005), argues that his claim is not barred

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because a successful excessive force claim against Defendant would not necessarily

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imply the invalidity of his conviction for California Penal Code section 69. See id. at

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696. The Court finds that Plaintiffs claim against Defendant, as pied, is barred by Heck.

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"Heck precludes a Section 1983 claim based on actions which would 'render a

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conviction or sentence invalid' where that conviction has not been reversed, expunged, or

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called into question by issuance of a writ of habeas corpus." Benavides v. City ofArvin,

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No. F CV 12-0405 LJO GSA, 2012 WL 1910259, at *4 (E.D. Cal. May 25, 2012) (citing

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Heck, 512 U.S. at 486). In other words, Heck requires dismissal of a Section 1983 claim

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"if a criminal conviction arising out of the same facts stands and is fundamentally

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inconsistent with the unlawful behavior for which section 1983 damages are sought[.]"

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Id. (quoting Smithhart v. Towers, 79 F.3d 951, 952 (9th Cir. 1996) (per curiam)). A

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district court determining whether the Heck doctrine applies must consider whether a

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plaintiffs success in his or her Section 1983 suit would '"necessarily imply' or

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'demonstrate' the invalidity of the earlier conviction or sentence[.]" Beets v. Cnty. ofLos

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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

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because the claim is based on the same facts of the plaintiffs underlying criminal

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conviction. Benavides v. City ofArvin, No. F CV 12-0405 LJO GSA, 2012 WL 1910259,

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at *4. In Smith v. City ofHemet, the Ninth Circuit "recognized that an allegation of

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excessive force by a police officer would not be barred by Heck if it were distinct

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temporally or spatially from the factual basis for the person's conviction." Beets, 669

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F .3d at 1042 (citing Smith, 394 F .3d at 699). In particular, a plaintiff may bring a Section

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1983 claim "ifthe use of excessive force occurred subsequent to the conduct on which

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his conviction was based." Smith, 394 F.3d at 698 (emphasis in original omitted).

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Additionally, the California Supreme Court in Yount explained that there may be

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cases in which Heck would not bar a plaintiffs Section 1983 claims:

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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.

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Yount, 43 Cal. 4th at 899 (quoting Jones v. Marcum, 197 F. Supp. 2d 991, 1005, fn. 9

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(S.D. Ohio 2002)). If, on the other hand, the facts giving rise to a plaintiffs claim cannot

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be separated into distinct incidents, or requires a court to engage in "temporal hair-

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splitting," such a claim is properly determined to be barred by Heck. Fetters v. Cnty. of

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Los Angeles, 243 Cal. App. 4th 825, 840 (2016) (citing Truong v. Orange Cnty. Sheriff's

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Dept., 129 Cal. App. 4th 1423, 1429 (2005)); see also Beets, 669 F.3d at 1044.

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Applying these considerations to the instant case, Plaintiffs claim against

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Defendant, as pied, does not survive Defendant's Heck challenge. According to the

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criminal complaint, Plaintiff was charged with, inter alia, resisting an officer with force

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under California Penal Code section 69 (Count 1), and battery upon Defendant (Count 3).

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(Docket 39-2, Ex. A.) Count 1 was based on the following allegations:

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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.

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(Id. at p. 5.) In contrast, Count 3 was based on the following allegations:

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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

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and there engaged in the performance of his/her duties, in
violation of PENAL CODE SECTION 243(b).

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(Id.) The incidents giving rise to these charges occurred on the same date the alleged

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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
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Contrary to Defendant's assertion, it is not clear from the criminal complaint, plea

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form, or sentencing minutes that "Plaintiff was criminally prosecuted for violating Penal

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Code section 69 as a result of the encounter with defendant." (Docket No. 39-1, Mot. at

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p. 4.) As Plaintiff accurately argues in his opposition, Count 1, the only relevant count he

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pied guilty to, does not identify Defendant as the officer he resisted. In addition, the FAC

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alleges, and Defendant did not dispute, that at least two other officers were involved in

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the incident leading up to Defendant's alleged use of excessive force. At the same time,

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the FAC indicates that Plaintiffs conviction for resisting an officer arises out of same

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facts as the incident for which he now seeks damages. Plaintiff does not allege that his

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conviction has been "reversed, expunged, or called into question by issuance of a writ of

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habeas corpus." Benavides, 2012 WL 1910259, at *4. Thus, as pied, it appears Heck

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applies to Plaintiffs claim against Defendant, and the Court must determine whether

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Plaintiff is barred from recovery.

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Relying solely on Smith, Plaintiffs opposition essentially argues that because "a

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variety of accusations" against him could form the basis of his conviction for California

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Penal Code section 69, he "is not necessarily attacking the validity of his conviction."

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(Docket No. 13, Pl.'s Opp'n at pp. 5-6.) But this is not the standard the Court is bound to

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apply. Rather, to overcome a Heck challenge, Plaintiff must demonstrate that his claim is

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not "fundamentally inconsistent with the unlawful behavior for which section 1983

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damages are sought." Smith, 394 F.3d at 695 (quoting Smithart, 79 F.3d at 952) (internal

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quotations omitted). Here, Plaintiffs FAC does not articulate facts that plausibly

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establish that his claim arises from either a distinct incident within a continuous chain of
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1 events, Yount, 43 Cal. 4th at 899, or is distinct temporally and spatially from the incident

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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

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must be dismissed. Therefore, Defendant's motion to dismiss for failure to state a claim

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is GRANTED. However, because the Court is unable to discern from the facts in

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Plaintiffs F AC or the judicially noticeable documents provided by Defendant whether

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amendment would be futile, the Court grants Plaintiff leave to amend his pleading.

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CONCLUSION

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For the reasons stated above, Defendant's Motion to Dismiss is GRANTED.

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Plaintiffs F AC is DISMISSED without prejudice. If Plaintiff elects to file a second

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amended complaint, he must do so within twenty (20) days of the date of this Order. If

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Plaintiff does not file a second amended complaint, the Clerk of the Court shall close this

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case without further order of this Court.

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IT IS SO ORDERED.

DATED: August

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2017

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