Opinion
No. C 00-1391 VRW (PR)
May 17, 2002
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
Plaintiff, a prisoner at High Desert State Prison, filed this pro se civil rights action for damages under 42 U.S.C. § 1983 alleging that he was subjected to an unreasonable search and denied medical care after he was arrested and taken to the Santa Clara County Jail. Per order filed on February 4, 2002, the court granted defendants' motion for summary judgment as to all defendants and claims other than plaintiffs claim that the officer defendants subjected him to an unreasonable search in violation of the Fourth Amendment when they used excessive force to carry out the search. Defendants now move to dismiss the remaining Fourth Amendment claim on the ground that it is barred under the rationale ofHeck v. Humphrey, 512 U.S. 477 (1994), and its progeny. After an extension of time, plaintiff filed an opposition.
BACKGROUND
On May 13, 1998, plaintiff was arrested for possession of cocaine for sale, possession of drug paraphernalia and violation of the terms of his probation. He was taken to the Santa Clara County Jail and strip searched by Correctional Officers Kimber, Taylor and Alvarez. During the search, Kimber slid his hand inside plaintiffs leg cast, which covered plaintiffs foot and extended up to his lower leg to just below the right knee, and felt a small hard substance in a plastic bag. Kimber ordered plaintiff to pull the bag out of his cast. Plaintiff complied by slowly pulling the bag out of the cast, but then proceeded to put the bag in his mouth and attempt to swallow it.
Kimber, Taylor and Alvarez observed that the bag contained a hard, rock-like substance they suspected to be rock cocaine, and tried to prevent plaintiff from swallowing it by tilting his head forward. Plaintiff resisted. Correctional Officers Vasquez, Constancio and Corco arrived at the scene to help secure plaintiff. The officers ("officer defendants") claim plaintiff continued to struggle and eventually fell to the floor and spit out the bag out onto the floor. However, plaintiff contends that they instead choked, kicked and beat him in the face, head and stomach until he spit out the bag.
Plaintiff was tried and convicted of possession for sale of cocaine base and attempting to destroy evidence (among other things), and was sentenced to 31 years in state prison. The conviction for possession for sale of cocaine base was based on the substance seized from plaintiffs cast. Prior to trial, plaintiff brought a motion to suppress the seized substance arguing, as he does here, that the officers conducting the search used unreasonable force in carrying out the search and seizure and thereby violated his due process rights. After a hearing, the state trial court found that the seized substance was lawfully obtained and admissible. The substance was admitted into evidence at trial and plaintiff was convicted of the crime of possession for sale of cocaine base.
DISCUSSION
A. Standard of Review
Dismissal for failure to state a claim is a ruling on a question of law. Parks School of Business, Inc., v. Symington, 51 F.3d 1480, 1483 (9th Cir. 1995). The court accordingly must accept as true all material allegations in the complaint, as well as all reasonable inferences to be drawn from these allegations. NL Indus., Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). However, the court is not required to accept as true "legal conclusions cast in the form of factual allegations if those conclusions cannot reasonably be drawn from the facts alleged," Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994), or allegations that contradict matters properly subject to judicial notice,Mullis v. United States Bankr. Court, 828 F.2d 1385, 1388 (9th Cir. 1987), or that are contradicted by documents referred to in the complaint, Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1295-96 (9th Cir. 1998). Even so, a motion to dismiss should not be granted unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Terracom v. Valley National Bank, 49 F.3d 555, 558 (9th Cir. 1995).
Review is limited to the contents of the complaint, including documents physically attached to the complaint or documents the complaint necessarily relies on and whose authenticity is not contested. Lee v. County of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001). In addition, the court may take judicial notice of matters of public record that are not subject to reasonable dispute. See id. at 689-90; Mack v. South Bay Beer Distrib., 798 F.2d 1279, 1282 (9th Cir. 1986).
B. Analysis
Defendants argue that under the rationale of Heck v. Humphrey, 512 U.S. 477 (1994), and the line of cases growing out of that decision, plaintiffs remaining Fourth Amendment claim must be dismissed. According to defendants, the claim is not cognizable under § 1983 because the cocaine base seized from plaintiffs cast was used in trial to secure plaintiffs conviction for possession for sale of cocaine base and the conviction has not been invalidated. The court agrees.
Under Heck, a § 1983 claim that would call into question the lawfulness of a plaintiffs conviction or confinement is not cognizable, and therefore does not accrue, until and unless the plaintiff can prove that his conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus. Heck, 512 U.S. at 486-87. Accordingly, when a plaintiff files a § 1983 action, the court must consider whether "a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated." Id. at 487.
In Harvey v. Waldron, 210 F.3d 1008 (9th Cir. 2000), our court of appeals held that the rationale of Heck applies to pending criminal charges and Fourth Amendment unreasonable search and seizure claims. 210 F.3d at 1014, 1015. A § 1983 action for unreasonable search and seizure of evidence upon which criminal charges are based is barred byHeck until criminal charges have been dismissed or the conviction has been overturned. See id. at 1015-16 (claim that gaming devices had been unlawfully searched for and seized under the 4th Amendment barred byHeck until charges for illegal possession of gaming devices were dismissed). This "avoid[s] the potential for inconsistent determinations on the legality of a search and seizure in the civil and criminal cases." Id. at 1015.
More recently, in Anderson v. Pearman, No C 01-0967 CRB (PR), 2001 WL 568619, at *2 (ND Cal May 21, 2001), this court (Breyer, J.) found that the rationale of Heck and Harvey barred a Fourth Amendment claim for use of excessive force during a body cavity search because the search had resulted in the retrieval of evidence — rock cocaine base — that was an essential element of the principal crime for which plaintiff was being charged — possession for sale. The court reasoned that "[i]f plaintiff [was] tried and convicted of this crime, a § 1983 action challenging the force used to carry out the search and obtain the seized evidence, if successful, would implicate the validity of the conviction." Id. (citations omitted). The claim had to be dismissed without prejudice to refiling "if and when a cause of action accrues." Id.
The rationale of Harvey and Anderson applies with even greater force here because, unlike in Harvey and Anderson, where charges were still pending, plaintiff here already has been convicted by a jury of possession for sale of cocaine base. Plaintiffs own submissions show that he was convicted of possession of cocaine base for sale and that he unsuccessfully sought to suppress the admission of the evidence seized from his cast on the ground that it was unlawfully obtained through the use of excessive force. The court also may take judicial notice of the same/similar facts: (1) plaintiff unsuccessfully sought to suppress the evidence seized from his cast on the ground that it was unlawfully obtained, (2) the seized evidence was admitted in trial, and (3) plaintiff was convicted of possession of cocaine base for sale. Cf. Lee, 250 F.3d at 689-90. In view of the foregoing facts, there is little doubt that if plaintiff proceeds with his claim and proves that the force used to carry out the search and obtain the seized evidence was unreasonable, the validity of his conviction of possession for sale of cocaine base would be implicated. See, e.g., Ellis v. City of San Diego, 176 F.3d 1183, 1190-91 (9th Cir. 1999) (even if invasive search is supported by probable cause and exigent circumstances, it is invalid if degree of force employed to carry it out is excessive); Franklin v. Foxworth, 31 F.3d 873, 875 (9th Cir. 1994) (even when supported by probable cause, a search may be invalid if carried out in an unreasonable fashion); see also United States v. Cameron, 538 F.2d 254, 257 (9th Cir. 1976) (compelled enemas violate 4th Amendment because "a clear indication that the suspect is concealing contraband does not authorize government officials to go to any and all means at their disposal to retrieve it").
Plaintiffs contention that the seized evidence used to obtain his conviction was not in a continuous "chain of custody" does not affect the court's conclusion. Rather, it highlights the fact that if plaintiff is successful in proving his remaining § 1983 claim, the validity of his state conviction would be implicated. Plaintiffs remaining Fourth Amendment claim for damages is barred by Heck and therefore not yet cognizable under § 1983. Accord Harvey, 210 F.3d at 1015-16;Anderson, 2001 WL 568619, at *2.
To be sure, not all Fourth Amendment claims will be barred byHeck. A claim for damages for an unreasonable search will not be barred by Heck if, unlike plaintiffs case, the evidence seized is not introduced at trial. See, e.g., Ove v. Gwinn, 264 F.3d 817, 823 (9th Cir. 2001) (claim for damages for unreasonable blood tests not barred by Heck where blood evidence was not introduced against plaintiffs because they pleaded guilty/nolo contendere). And a claim for use of excessive force during the course of an arrest will not be barred by Heck because, unlike plaintiffs claim, it does not imply the invalidity of the arrest and possible conviction. See Cabrera v. City of Huntington Park, 159 F.3d 374, 380 (9th Cir. 1998); Smithart v. Towery, 79 F.3d 951, 952-53 (9th Cir. 1996).
CONCLUSION
For the foregoing reasons, defendants' motion to dismiss plaintiffs remaining Fourth Amendment claim under the rationale of Heck (doc # 58) is GRANTED. The dismissal is without prejudice to refiling if plaintiffs conviction is invalidated. See Edwards v. Balisok, 520 U.S. 641, 649 (1997).The clerk shall enter judgment in favor of defendants, close the file, and terminate all pending motions as moot.
SO ORDERED.
JUDGMENT. [FRCP 58]
This action came to trial or hearing before the Court. The issues have been tried or heard and a decision has been rendered.
IT IS ORDERED AND ADJUDGED that judgment is entered in favor of defendants.