Price v. Galiu

Filing 60

ORDER granting 57 Motion to Dismiss for Failure to State a Claim. Signed by Judge Roger T. Benitez on 12/12/2017. (All non-registered users served via U.S. Mail Service)(anh) (sjt).

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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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ORDER GRANTING DEFENDANT’S
MOTION TO DISMISS SECOND
AMENDED COMPLAINT

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

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Defendants.

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Before the Court is the Motion to Dismiss Plaintiff’s Second Amended Complaint

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filed by Defendant Deputy Alexandru Galiu. (Docket No. 57.) Plaintiff did not oppose

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or otherwise respond to Defendant Galiu’s Motion. The Court finds the Motion suitable

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for determination on the papers without oral argument, pursuant to Civil Local Rule

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7.1.d.1. For the reasons set forth below, Defendant’s Motion is GRANTED.
BACKGROUND1

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On February 28, 2014, while “Plaintiff was a pretrial detainee” at the San Diego
County Jail,” he was “ordered to undress as part of the initial booking process.” (SAC at

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The following overview of the relevant facts is drawn from the allegations of
Plaintiff’s Second Amended Complaint (“SAC”). (Docket No. 56.) The Court is not
making findings of fact.
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p. 3.)2 At that time, Plaintiff was alone in a “dress out room” with Corporal Kyle Dobson

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and a second deputy. (Id.) Once Plaintiff was nude and facing away from the deputies,

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he was ordered to “spread the buttocks and cough.” (Id.) Plaintiff complied, after which

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one of the deputies “yelled, demanding that Plaintiff put his hands behind his back.” (Id.)

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Plaintiff did not comply with this order, and instead “grabbed the small bindle of

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marijuana from his buttocks” and put it in his mouth “while facing the deputies.” (Id.)
Dobson “rush[ed] toward Plaintiff” while yelling “spit out the drugs!” (Id.)

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(internal quotation marks omitted.) Plaintiff was unable to swallow the drugs because

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Dobson “established a tight grip” around his throat and “drove [him] backward” toward a

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bench against the wall. (Id.) “Plaintiff was forced into a sitting position and the struggle

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cause the bindle to become lodged in Plaintiff’s throat.” (Id.) At first, “plaintiff began to

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try and gain enough space between Dobson’s hand and Plaintiff’s throat to spit the bindle

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up.” (Id. at pp. 3-4) Unsuccessful, “Plaintiff very momentarily flailed arms and legs in a

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panic, from lack of oxygen.” (Id. at p. 4.) “Plaintiff then stopped flailing, hoping for

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mercy, and realizing that [his] attempt[] to swallow the bindle was a bad decision.” (Id.)
While Dobson and the second deputy “took turns sticking their fingers in

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Plaintiff’s mouth,” Plaintiff alleges he suddenly “felt a solid punch to the left side” from

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Defendant Galiu. (Id.) Plaintiff further alleges Defendant Galiu “slammed [him] to the

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floor where [Defendant Galiu] proceeded to knee Plaintiff in the nose several times.”

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(Id.) Plaintiff “coughed up the bindle upon being slammed to the floor by Galiu.” (Id.)
Plaintiff asserts Defendant Galiu’s actions caused him to sustain a “serious orbital

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fracture” and a fractured nose. (Id.)

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PROCEDURAL HISTORY

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On February 16, 2016, Plaintiff, proceeding pro se and in forma pauperis, brought
this action under 42 U.S.C. § 1983, alleging a federal civil rights claim for cruel and

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All references to page numbers in the parties’ documents are to the page numbers
generated by the CM/ECF system.
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unusual punishment against Defendant Galiu. (Docket No. 1.) After this Court granted

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in part both Defendant Galiu’s motion to dismiss for failure to state a claim and

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Plaintiff’s motion to amend his pleading (Docket No. 36), Plaintiff timely filed a First

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Amended Complaint. (Docket No. 38.)

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On August 8, 2017, this Court granted Defendant Galiu’s second motion to dismiss

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Plaintiff’s First Amended Complaint for failure to state a claim without prejudice and

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with leave to amend. (Docket No. 55.) Plaintiff timely filed the operative SAC.

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Defendant Galiu now moves for a third time for dismissal of Plaintiff’s SAC for failure to

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state a claim. (Docket No. 57.)

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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 Atl. 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 if the 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 Li v. 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. Makor Issues & Rights, Ltd., 551 U.S. 308, 322

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(2007).3 Additionally, “a document filed pro se 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

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As he did in both of his prior motions to dismiss, Defendant Galiu asserts that

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Plaintiff’s claim against him is barred as an impermissible collateral attack on his

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criminal conviction for California Penal Code section 69 (resisting an officer with force)

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under Heck v. Humphrey, 512 U.S. 477 (1944). As noted above, Plaintiff did not oppose

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or otherwise respond to the instant motion. Even construing the allegations of the SAC

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liberally, the Court agrees with Defendant Galiu that Plaintiff’s claim is barred by Heck.

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“Heck precludes a Section 1983 claim based on actions which would ‘render a
conviction or sentence invalid’ where that conviction has not been reversed, expunged, or

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Defendant attached four documents in support of his motion to dismiss (Docket
No. 57-2, Exs. A-D), which he asserts are judicially noticeable pursuant to Federal Rules
of Evidence Rule 201. The four 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), Plaintiff’s plea form for case number SDC255402 (Id., Ex. B), the
California Superior Court’s Judgment Minutes on Sentencing for case number case
number SDC255402 (Id., Ex. C), and an excerpt of the Reporter’s Transcript of
Proceedings for case (Id., Ex. D). 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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called into question by issuance of a writ of habeas corpus.” Benavides v. City of Arvin,

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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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plaintiff’s 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. of Los

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Angeles, 669 F.3d 1038, 1042 (9th Cir. 2012) (quoting Heck, 512 U.S. at 487).
Here, Plaintiff’s claim, as alleged in the SAC (and in similar variations in the

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Complaint and First Amended Complaint (Docket Nos. 1, 38)), is barred by Heck.

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According to the criminal complaint, Plaintiff was charged with, inter alia, resisting an

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officer with force under California Penal Code section 69 (Count 1), and battery upon

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Defendant Galiu (Count 3). (Docket 57-2, Ex. A.) Count 1 was based on the following

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

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///
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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.; SAC at pp. 3-4.) Ultimately,

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Plaintiff pled guilty to Count 1 and another count for possession of a controlled substance

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while in jail/prison. (Docket 57-2, Exs. A, B.)

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Although Count 1 does not specifically identify Defendant Galiu as the officer

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resisted, the SAC indicates that Plaintiff’s conviction for resisting an officer arises out of

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the same facts as the incident for which he now seeks damages. Throughout the entire

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episode identified by the SAC, Plaintiff admits he intentionally physically resisted the

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commands of at least three deputies who attempted to secure his compliance. (See SAC

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at pp. 3-4.) Once again, the SAC fails to articulate facts that plausibly establish that

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Plaintiff’s claim arises from either a distinct incident within a continuous chain of events,

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Yount v. City of Sacramento, 43 Cal. 4th 885, 899 (2008), or is distinct temporally and

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spatially from the incident which led to his conviction for resisting an officer, Smith v.

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City of Hemet, 394 F.3d 689,699 (9th Cir. 2005). Moreover, Plaintiff did not allege that

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

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of habeas corpus.” Benavides, 2012 WL 1910259, at *4. As a result, the Court finds

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Plaintiff’s claim against Defendant Galiu barred under Heck.

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Accordingly, Defendant’s motion to dismiss for failure to state a claim is

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GRANTED. Furthermore, because Plaintiff has failed his third attempt to meet his

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burden to state facts to state a plausible claim for relief, and did not respond to

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Defendant’s motion, the SAC is DISMISSED without leave to amend.

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IT IS SO ORDERED.

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Dated: December 12, 2017

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