Kachman v. Ross

Filing 14

ORDER that Defendant's Motion to dismiss ECF No. 8 is granted; Clerk directed to enter judgment and close case. Signed by Judge Miranda M. Du on 11/2/2018. (Copies have been distributed pursuant to the NEF - KW)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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GREGORY KACHMAN,

Case No. 3:17-cv-00660-MMD-WGC
Plaintiff,

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ORDER
v.

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CHAD E. ROSS,
Defendant.

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I.

SUMMARY

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Pro se state prisoner Plaintiff Gregory Kachman sued Defendant Washoe County

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Deputy Sheriff Chad E. Ross for shooting him in the spine after Defendant responded to

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a domestic dispute call made by Plaintiff’s girlfriend, alleging Defendant used

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unconstitutionally excessive force. (ECF No. 1.) Defendant perhaps thought Plaintiff was

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trying to kill him with his truck. (ECF No. 8 at 3, 7.) Defendant has now moved to dismiss

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(the “Motion”).1 (ECF No. 8.) The Court will grant Defendant’s Motion because Plaintiff’s

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constitutional claim is barred by Heck v. Humphrey, 512 U.S. 477 (1994).

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II.

BACKGROUND

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Plaintiff asserts a claim of excessive force under the Fourth and Fourteenth

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Amendments under 42 U.S.C. § 1983, and state law claims of assault and battery

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against Defendant stemming from the events briefly described above. The Court refers

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to its prior order in this case for a description of those events as Plaintiff alleges they

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took place. (ECF No. 3 at 4-5.) In that prior order, the Court found that Plaintiff’s claim

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Court has also reviewed Plaintiff’s response (ECF No. 11), and Defendant’s
reply (ECF No. 12), along with their corresponding exhibits.
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did not appear to be barred by Heck or its progeny. (Id. at 5.) However, facts presented

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to the Court since that time must change the Court’s analysis.

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Plaintiff was also criminally charged in connection with the same events giving

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rise to this case. Specifically, Plaintiff was arrested and charged with Assault Upon An

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Officer With The Use Of A Deadly Weapon.2 (ECF No. 8-1 at 2.) Plaintiff pled guilty to

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this charge in the corresponding state-court criminal case. (ECF No. 8-3 at 2.) The

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relevant portion of the plea agreement he signed states that Plaintiff was trying to kill

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Defendant by running Defendant over with his truck at the time Defendant shot Plaintiff.

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(Id.) Further, the plea agreement states that Defendant reasonably feared immediate

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bodily harm because Plaintiff was trying to run Defendant over with his truck. (Id.)

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Defendant moved to dismiss this case on the grounds of qualified immunity,

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relying heavily on Plaintiff’s admissions in his plea agreement in the state court criminal

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case that he was trying to kill Defendant with his truck. (ECF No. 8 at 4-7.) Thus, the

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argument goes, the force that Defendant used was not excessive as a matter of law—

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police officers can use up to deadly force when they reasonably fear immediate bodily

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harm. (Id.

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jurisdiction over the state law assault and battery claims because Plaintiff’s federal claim

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should be dismissed. (Id.)

at 7.) Further, Defendant argued the Court should not exercise pendant

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In his response to Defendant’s Motion, Plaintiff argued—and provided evidence to

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support his argument—that he was not trying to kill Defendant with his truck when

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Defendant shot him, and thus that Defendant did not reasonably fear imminent bodily

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injury. (ECF No. 11 at 3-5, 11-12, 14.) Because this argument contradicts the facts

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Plaintiff admitted to in his guilty plea in the corresponding state-court criminal case,

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2Plaintiff

was also charged with, and later pled guilty to, stalking, but that charge is
not directly relevant to this case. (ECF No. 8 at 3, 8-3 at 4.) In addition, the Court takes
judicial notice of Plaintiff’s state court criminal records, which Defendant attached as
exhibits to its Motion. See Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir.
2001) (finding that a court may take judicial notice of matters of public record without
converting a 12(b)(6) motion into a summary judgment motion). For convenience, the
Court will cite to the exhibits attached to Defendant’s Motion in this order.
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Defendant then argued in his reply that Plaintiff’s claims are Heck-barred. (ECF No. 12

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at 4-5.)

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The Court gave Plaintiff an additional fifteen days to respond to Defendant’s

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argument that his claims are Heck-barred in a surreply, and warned him that his claims

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may be dismissed on Heck grounds, even if he failed to respond within those fifteen

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days. (ECF No. 13.) Plaintiff did not file a surreply within those fifteen days.

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III.

LEGAL STANDARD

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A court may dismiss a plaintiff’s complaint for “failure to state a claim upon which

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relief can be granted.” Fed. R. Civ. P. 12(b)(6). A properly pleaded complaint must

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provide “a short and plain statement of the claim showing that the pleader is entitled to

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relief.” Fed. R. Civ. P. 8(a)(2); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

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While Rule 8 does not require detailed factual allegations, it demands more than “labels

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and conclusions” or a “formulaic recitation of the elements of a cause of action.” Ashcroft

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v. Iqbal, 556 U.S. 662, 678 (2009) (citing Twombly, 550 U.S. at 555). “Factual allegations

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must be enough to rise above the speculative level.” Twombly, 550 U.S. at 555. Thus, to

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survive a motion to dismiss, a complaint must contain sufficient factual matter to “state a

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claim to relief that is plausible on its face.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550

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U.S. at 570). Pro se pleadings, however, must be liberally construed. See Balistreri v.

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Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

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In Iqbal, the Supreme Court clarified the two-step approach district courts are to

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apply when considering motions to dismiss. First, a district court must accept as true all

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well-pleaded factual allegations in the complaint; however, legal conclusions are not

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entitled to the assumption of truth. See Iqbal, 556 U.S. at 678. Mere recitals of the

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elements of a cause of action, supported only by conclusory statements, do not suffice.

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See id. at 678. Second, a district court must consider whether the factual allegations in

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the complaint allege a plausible claim for relief. See id. at 679. A claim is facially

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plausible when the plaintiff’s complaint alleges facts that allow a court to draw a

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reasonable inference that the defendant is liable for the alleged misconduct. See id. at
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678. Where the complaint does not permit the court to infer more than the mere

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possibility of misconduct, the complaint has “alleged—but it has not show[n]—that the

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pleader is entitled to relief.” See id. at 679 (alteration in original) (internal quotation

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marks omitted). When the claims in a complaint have not crossed the line from

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conceivable to plausible, the complaint must be dismissed. See Twombly, 550 U.S. at

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570.

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IV.

DISCUSSION

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For the reasons explained below, the Court finds that Plaintiff’s constitutional

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claim is Heck-barred. The Court will dismiss it without prejudice. Further, the Court will

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decline to exercise supplemental jurisdiction over Plaintiff’s state law claims, and also

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dismiss them without prejudice.

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In Heck, the Supreme Court held that “in order to recover damages for [an]

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allegedly unconstitutional conviction or imprisonment, or for other harm caused by

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actions whose unlawfulness would render a conviction or sentence invalid, a § 1983

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plaintiff must prove that the conviction or sentence has been reversed on direct appeal,

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expunged by executive order, declared invalid by a state tribunal authorized to make

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such determination, or called into question by a federal court’s issuance of a writ of

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habeas corpus, 28 U.S.C. § 2254.” Heck, 512 U.S. at 486-87. “A claim for damages

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bearing that relationship to a conviction or sentence that has not been . . . invalidated is

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not cognizable under § 1983.” Id. at 487. “Thus, when a state prisoner seeks damages in

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a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff

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would necessarily imply the invalidity of his conviction or sentence; if it would, the

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complaint must be dismissed unless the plaintiff can demonstrate that the conviction or

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sentence has already been invalidated.” Id.

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Heck applies to Plaintiff’s constitutional claim here. Judgment in Plaintiff’s favor

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would necessarily imply the invalidity of his conviction and its corresponding guilty plea.

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To win this case, Plaintiff would have to show that Defendant used unconstitutionally

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excessive force against him. However, Plaintiff admitted in his guilty plea that he placed
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Defendant in reasonable apprehension of immediate bodily harm when he attempted to

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kill Defendant with his truck. (ECF Nos. 8-3 at 3, 8-2.) This is an element of the offense

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Plaintiff pleaded guilty to. See NRS § 200.471(1)(a)(2), (2)(c). Further, applicable

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constitutional law authorizes Defendant, a police officer, to use up to deadly force when

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placed in reasonable apprehension of serious physical harm. See, e.g., Brosseau v.

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Haugen, 543 U.S. 194, 197-98 (2004). Given the facts he admitted to in his plea

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agreement, Plaintiff would accordingly have to invalidate his conviction to prevail in this

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case, and he has not—meaning that his claims are Heck-barred. See Heck, 512 U.S. at

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487; see also Smithart v. Towery, 79 F.3d 951, 952 (9th Cir. 1996) (stating to the extent

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that the plaintiff sought to “invalidate his assault conviction, whether expressly or by

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implication, we affirm the district court’s dismissal.”).

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Having dismissed the claim over which the Court had original jurisdiction, the

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Court declines to exercise supplemental jurisdiction over Plaintiff’s remaining state law

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claims for assault and battery. See 28 U.S.C. § 1367(c)(3) (“The district courts may

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decline to exercise supplemental jurisdiction over a claim under subsection (a) if . . . the

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district court has dismissed all claims over which it has original jurisdiction.”).

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V.

CONCLUSION

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The Court notes that the parties made several arguments and cited to several

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cases not discussed above. The Court has reviewed these arguments and cases and

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determines that they do not warrant discussion as they do not affect the outcome of

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Defendant’s Motion.

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It is therefore ordered that Defendant’s motion to dismiss (ECF No. 8) is granted.

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Plaintiff’s constitutional claim is barred under Heck and is dismissed without prejudice.

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The Court declines to exercise supplemental jurisdiction over the state law claims and

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therefore dismisses them without prejudice.
The Clerk of the Court is directed to enter judgment accordingly and close this

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case.

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DATED THIS 2nd day of November 2018.

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MIRANDA M. DU
UNITED STATES DISTRICT JUDGE

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