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Smithart v. Towery

United States Court of Appeals, Ninth Circuit
Apr 1, 1996
79 F.3d 951 (9th Cir. 1996)

Summary

holding that Heck did not bar Smithart's excessive force claim because even though Smithart had been convicted of assaulting his arresting officers by driving a truck toward them, the officers' alleged excessive force took place after he had exited his truck, and thus did not necessarily invalidate his conviction

Summary of this case from Guerrero v. Gates

Opinion

No. 95-15821.

Submitted February 27, 1996.

Decided April 1, 1996.

John Wesley Smithart, Reno, Nevada, pro se.

Gregory R. Shannon, Deputy District Attorney, Reno, Nevada, for defendants-appellees Towery and Knight.

Laurie B. Buck, Deputy Attorney General, Department of Motor Vehicles Public Safety, Carson City, Nevada, for defendant-appellee McGregor.

Appeal from the United States District Court for the District of Nevada Howard D. McKibben, District Judge, Presiding. No. CV-94-00110-HDM.

Before: PREGERSON, CANBY, and HAWKINS, Circuit Judges.


Nevada state prisoner John Wesley Smithart appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 action. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Kruso v. International Tel. Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 496 U.S. 937 (1990), and affirm in part, vacate in part, and remand.

[1] We are called upon to apply the rule of Heck v. Humphrey, ___ U.S. ___, 114 S. Ct. 2364 (1994), to an action under 42 U.S.C. § 1983 which seeks damages for, inter alia, excessive force applied during the course of an arrest which resulted in Smithart's criminal conviction. 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 called into question by issuance of a writ of habeas corpus. Heck, ___ U.S. at ___, 114 S. Ct. at 2372. Heck, in other words, says that if a criminal conviction arising out of the same facts stands and is fundamentally inconsistent with the unlawful behavior for which section 1983 damages are sought, the 1983 action must be dismissed.

Here, Smithart entered a plea pursuant to North Carolina v. Alford, 400 U.S. 25 (1970), to assault with a deadly weapon. The weapon in question was Smithart's 1973 Chevrolet truck which he drove at defendants, a Washoe County Sheriff's deputy and a Nevada Highway patrolman. These officers had effected a traffic stop of Smithart's son on Smithart's property.

In his 1983 action, Smithart alleges that after he exited his vehicle, defendants provoked him into a confrontation which they escalated beyond any necessary measure. Defendants, Smithart alleges, "without probable cause, authority or justification," assaulted, arrested, handcuffed, and beat Smithart with their batons, feet, and fists. Defendants allegedly beat Smithart "beyond recognition with unnecessary force" until Smithart, an unarmed fifty-nine year-old Native American, had a broken arm, two broken legs, numerous contusions, and internal injuries. Smithart alleges that defendants forcibly removed him from his property and "conspired to bring unfounded criminal charges" against him.

[2] There is no question that Heck bars Smithart's claims that defendants lacked probable cause to arrest him and brought unfounded criminal charges against him. See id. Smithart may challenge the validity of his arrest, prosecution and conviction only by writ of habeas corpus. See id. To the extent that Smithart seeks to invalidate his assault conviction, whether expressly or by implication, we affirm the district court's dismissal. See id. If Smithart wishes to challenge his arrest, prosecution or conviction, he should file a writ of habeas corpus.

[3] Smithart maintains, however, that defendants used force far greater than that required for his arrest and out of proportion to the threat which he posed to the defendants. In Heck, the Court expressly held that where plaintiff's action "even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit." Id. at ___-___, (emphasis in original; footnotes omitted). Because a successful section 1983 action for excessive force would not necessarily imply the invalidity of Smithart's arrest or conviction, Heck does not preclude Smithart's excessive force claim. See id.; Wells v. Bonner, 45 F.3d 90, 95 (5th Cir. 1995) (assuming without deciding that finding of excessive force during plaintiff's arrest would not imply the invalidity of plaintiff's conviction); see also Heck, ___ U.S. at ___ n. 7, 114 S. Ct. at 2372 n. 7 (successful section 1983 action for unreasonable search would not necessarily imply that plaintiff's conviction was unlawful); Graham v. Connor, 490 U.S. 386, 394 (1989) (excessive force claim in context of arrest properly characterized as Fourth Amendment claim alleging unreasonable seizure of the person). To the extent that Smithart seeks to recover for defendants' alleged use of excessive force during the course of his arrest, his section 1983 action may proceed despite the fact that his conviction has not been reversed, expunged, invalidated, or called into question by the issuance of a writ of habeas corpus by a federal court. See Heck, ___ U.S. at ___-___, 114 S. Ct. at 2372-73 n. 7; see also Graham, 490 U.S. at 394.

AFFIRMED in part, VACATED in part, and REMANDED for further proceedings consistent with this opinion. Each party to bear its own costs.


Summaries of

Smithart v. Towery

United States Court of Appeals, Ninth Circuit
Apr 1, 1996
79 F.3d 951 (9th Cir. 1996)

holding that Heck did not bar Smithart's excessive force claim because even though Smithart had been convicted of assaulting his arresting officers by driving a truck toward them, the officers' alleged excessive force took place after he had exited his truck, and thus did not necessarily invalidate his conviction

Summary of this case from Guerrero v. Gates

holding that Heck did not bar Smithart's excessive force claim. Though Smithart had been convicted of assaulting his arresting officers by driving a truck toward them, the officers' alleged excessive force took place after he had exited his truck and thus did not necessarily invalidate his conviction

Summary of this case from Guerrero v. Gates

holding that although the plaintiff had been convicted for assault with a deadly weapon for his attempt to run over officers with his vehicle, his excessive force claim against the officers for their subsequent use of force was not barred by Heck

Summary of this case from Sandoval v. Officer Melvin of Winston Police Dep't

holding that under Heck, if a criminal conviction arising out of the same facts stands and is fundamentally inconsistent with the unlawful behavior for which § 1983 damages are sought, the § 1983 action must be dismissed

Summary of this case from Sandoval v. Officer Melvin of Winston Police Dep't

holding Heck bars plaintiff's claims that defendants lacked probable cause to arrest him and brought unfounded charges against him

Summary of this case from Turner v. Sacramento City Fire Dep't

holding Heck bars plaintiff's claims that defendants lacked probable cause to arrest him and brought unfounded charges against him

Summary of this case from Stein v. City of San Diego

holding that Heck barred Plaintiff's civil rights claims alleging that defendants lacked probable cause to arrest him and brought unfounded criminal charges against him

Summary of this case from De Vonne Ray v. Warner

holding that Heck barred Plaintiff's civil rights claims alleging that defendants lacked probable cause to arrest him and brought unfounded criminal charges against him

Summary of this case from Brown v. City of Long Beach

holding that guilty plea to assault with a deadly weapon foreclosed a § 1983 claim for wrongful arrest, since a favorable judgment on the wrongful arrest claim would necessarily imply the invalidity of the guilty plea

Summary of this case from Berra v. Lyons

holding that Heck unquestionably barred the plaintiff's claim that the defendants lacked probable cause to arrest him

Summary of this case from Lewis v. City of Clarksburg

holding that "a successful section 1983 action for excessive force would not necessarily imply the invalidity of [plaintiffj's arrest or conviction"

Summary of this case from Mendez v. City of Scottsdale

holding that Heck did not bar Smithart's excessive force claim because even though Smithart had been convicted of assaulting his arresting officers by driving a truck toward them, the officers' alleged excessive force took place after he had exited his truck, and thus did not necessarily invalidate his conviction

Summary of this case from Guevara v. Ralls

holding that, where Plaintiff pled guilty to charges arising from the same facts in an unlawful arrest claim, "There is no question that Heck bars [Plaintiff's] claims that defendants lacked probable cause to arrest him and brought unfounded criminal charges against him"

Summary of this case from Campbell v. City of Coeur D'Alene

holding claims of excessive force during arrest not barred under Heck

Summary of this case from Davis v. Clark

holding Heck barred plaintiff's claims that defendants lacked probable cause to arrest him and brought unfounded criminal charges against him

Summary of this case from Lewis v. Duong

holding Heck barred plaintiffs claims that defendants lacked probable cause to arrest him and brought unfounded criminal charges against him

Summary of this case from Tinsley v. Nocetti

finding sufficient allegations that the defendant officers beat the plaintiff "beyond recognition with unnecessary force" until he "had a broken arm, two broken legs, numerous contusions, and internal injuries."

Summary of this case from Byrd v. Phx. Police Dep't

finding where "a successful section 1983 action for excessive force would not necessarily imply the invalidity of [a plaintiff's] arrest or conviction, Heck does not preclude [the plaintiff's] excessive force claim."

Summary of this case from Kassab v. San Diego Police Department

finding Heck bars claims that officers lacked probable cause to arrest and brought unfounded charges

Summary of this case from Diggs v. Las Vegas Metro. Police Dep't

finding that Heck barred plaintiff's allegations that defendants violated his civil rights when they lacked probable cause to arrest him and brought unfounded criminal charges against him

Summary of this case from Coss v. People

finding that a successful § 1983 claim for excessive force would not necessarily imply invalidity of plaintiff's arrest or conviction for assault with a deadly weapon

Summary of this case from Frazier v. Redding Police Dept.

finding that successful § 1983 claim based on allegation of excessive force did not necessarily imply invalidity of plaintiffs conviction

Summary of this case from Guerrero v. Gates

concluding allegations that defendants lacked probable cause to arrest him and brought unfounded criminal charges challenge validity of conviction and are Heck-barred

Summary of this case from Sanders v. Lutter

concluding Heck barred claims that police officers lacked probable cause for arrest and brought unfounded criminal charges

Summary of this case from Mitchell v. Wagner

concluding that plaintiff's claim of false arrest was Heck-barred based on plaintiff entering an Alford plea to assault with a deadly weapon

Summary of this case from Ruffin v. Kane County Sheriff Department
Case details for

Smithart v. Towery

Case Details

Full title:JOHN WESLEY SMITHART, PLAINTIFF-APPELLANT, v. ROBERT TOWERY; JOHN A…

Court:United States Court of Appeals, Ninth Circuit

Date published: Apr 1, 1996

Citations

79 F.3d 951 (9th Cir. 1996)

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