Opinion
No. 2:05-cv-1662-MCE-DAD.
March 8, 2006
MEMORANDUM AND ORDER
This case arises from the events surrounding the arrest of Plaintiff Michael Witkin ("Plaintiff") on August 21, 2004. Plaintiff alleges that his constitutional rights were violated by Defendants during said arrest and now seeks recovery under 42 U.S.C. section 1983.
The Defendants in this matter include the County of Sacramento, the Sacramento County Sheriff's Department, Sheriff Lou Blanas, the City of Elk Grove, and Sacramento County Sheriff's Deputy Robert Barnes. Hereinafter all defendants will be referred to collectively as "Defendants".
Plaintiff additionally asserts state tort claims for false imprisonment, false arrest, battery, and negligence. This matter is now before the Court on Defendants' Motion to Dismiss Plaintiff's Complaint for failure to state a claim upon which relief can be granted, pursuant to Federal Rules of Civil Procedure 12(b)(6). Alternatively, Defendants move for judgement on the pleadings pursuant to Rule 12(c). As set forth below, Defendants' Motion to Dismiss is granted in part and denied in part. Defendants' Motion for Judgment on the Pleadings is denied.
Unless otherwise stated, all further references to a "Rule" are to the Federal Rules of Civil Procedure.
Because oral argument will not be of material assistance, the Court orders this matter submitted on the briefing. E.D. Cal. Local Rule 78-230(h).
BACKGROUND
The Court relies extensively on Plaintiff's Request for Judicial Notice in its recitation of the facts. See MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1984) (holding that a court may take judicial notice of matters of public records without converting a motion to dismiss into a motion for summary judgment). The Court additionally notes that Plaintiff's Request for Judicial Notice is unopposed by Defendants.
The chain of events leading to Plaintiff's arrest originated when Defendant Deputy Barnes observed Plaintiff commit an undetermined traffic offense. Deputy Barnes followed Plaintiff until Plaintiff stopped his vehicle at a residence later determined to be Plaintiff's home. Immediately after Plaintiff exited his vehicle, Deputy Barnes ordered Plaintiff to "stop". Rather than comply with the directions of an officer in full uniform who had just exited a marked patrol vehicle, Plaintiff began to run. A pursuit followed which led to a physical confrontation between Plaintiff and Deputy Barnes. Plaintiff eventually broke away and, as he was fleeing, was shot multiple times in the back and buttocks by Deputy Barnes.
Plaintiff alleges that Deputy Barnes used excessive force in shooting Plaintiff and that the excessive force employed was caused by deliberate indifference on the part of the Sacramento County Sheriff's Department in the training of its officers. In addition to his constitutional claims under 42 U.S.C. § 1983, Plaintiff asserts state tort claims for false imprisonment, false arrest, battery, and negligence.
Sacramento County provides a number of its sheriff's deputies to the City of Elk Grove pursuant to a law enforcement services contract between the city and county.
A. Motion to Dismiss
STANDARD
A complaint may be dismissed pursuant to Rule 12(b)(6) where the complaint either asserts a legal theory that is not cognizable as a matter of law or fails to allege facts to sufficiently support a cognizable legal claim. SmileCare Dental Group v. Delta Dental Plan of Cal., Inc., 88 F.3d 780, 783 (9th Cir. 1996). A court should not dismiss a complaint, however, for a party's failure to state a claim "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [its] claim which would entitle [it] to relief." Conley v. Gibson, 355 U.S. 41, 45-46, (1957); see also Yamaguchi v. United States Dep't of the Air Force, 109 F.3d 1475, 1481 (9th Cir. 1997). In deciding a motion to dismiss, the court should take all allegations of material fact in the complaint as true and construed in the light most favorable to the plaintiff.North Star Int'l v. Ariz. Corp. Comm'n, 720 F.2d 578, 580 (9th Cir. 1983)."Generally, a district court may not consider any material beyond the pleadings in ruling on a Rule 12(b)(6) motion." Hal Roach Studios, Inc. v. Richard Feiner Co., 896 F.2d 1542, 1555 n. 19 (9th Cir. 1990); see also Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 925 (9th Cir. 2001). However, a court may take judicial notice of matters of public records "without converting a motion to dismiss into a motion for summary judgment." MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1984).
If the court grants a motion to dismiss a complaint, it must then decide whether to grant leave to amend. The Court should "freely give" leave to amend when there is no "undue delay, bad faith[,] dilatory motive on the part of the movant, . . . undue prejudice to the opposing party by virtue of . . . the amendment, [or] futility of the amendment. . . ." Fed.R.Civ.P. 15(a);Foman v. Davis, 371 U.S. 178, 182 (1962). Generally, leave to amend is only denied when it is clear that the deficiencies of the complaint cannot be cured by amendment. DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992).
ANALYSIS
1. Plaintiff's claims for false arrest and false imprisonment
In Heck v. Humphrey, 512 U.S. 477, 487 (1994), the United States Supreme Court held that:
when a state prisoner seeks damages in a section 1983 suit, the district 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.
Thus, in order to pursue a claim under 42 U.S.C. § 1983 that would undermine a prior conviction, Plaintiff must prove that the underlying conviction has been "reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal . . ., or called into question by a federal court's issuance of a writ of habeas corpus." Heck, 512 U.S. at 486-477.
Here, Plaintiff was convicted of battery on a peace officer and deterring a police officer from the performance of his duties. (Def.'s Req. Jud. Notice, Ex. A.) Plaintiff has presented no evidence that either of these convictions has been reversed or invalidated. Plaintiff nonetheless raises claims for false imprisonment and false arrest. A finding in Plaintiff's favor on either of these claims would necessarily challenge the validity of his prior convictions. In light of the fact that neither conviction has been deemed invalid, both claims must fail under Heck. See Cabrera v. City of Huntington Park, 159 F.3d 374 (9th Cir. 1998) (Section 1983 claim for false arrest and false imprisonment barred by Heck).
It is unclear from the Complaint whether Plaintiff's false imprisonment and false arrest claims are asserted under state law or under 42 U.S.C. § 1983. In either case, the Heck analysis remains the same. See Heck, 512 U.S. at 486-487 (holding that a section 1983 Plaintiff is barred from recovering damages for "unconstitutional conviction or imprisonment" as well as " for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid") (emphasis added); see also Hainze v. Richards, 207 F.3d 795 (holding that a section 1983 Plaintiff's state law claims for assault and battery were barred by Heck); Susag v. City of Lake Forest, 94 Cal.App.4th 1401, 1412-13, 115 Cal.Rptr.2d 269 (2002) (holding Heck applicable to section 1983 Plaintiff's state law claims for assault and false imprisonment). Because Plaintiff does not specifically identify his claims for false imprisonment and false arrest as section 1983 claims, the Court treats them as tort claims under California law.
Faced with this authority, Plaintiff now acknowledges that his Third Cause of Action, alleging false arrest and false imprisonment, should be dismissed from the Complaint. (Opp. 4:22-23). Because the Court does not believe the deficiencies in Plaintiff's Third Cause of Action can be cured by amendment, that claim is dismissed with prejudice.
2. Plaintiff's claims for excessive force and deliberate indifference
Defendants additionally contend that Plaintiff's First and Second Causes of Action, alleging excessive force and deliberate indifference respectively under § 1983, are also barred underHeck. Plaintiff, on the other hand, argues that these claims are unrelated to the conduct for which he was convicted and, therefore, should not be dismissed. Specifically, Plaintiff contends that a verdict in his favor on his excessive force and deliberate indifference claims would not necessarily be inconsistent with his prior conviction under Penal Code sections 69 and 243(b). The Court agrees.
An excessive force claim is not barred by Heck if the excessive force alleged was employed subsequent to the time that the defendant engaged in the conduct that constituted the basis for his conviction. Smith v. City of Hemet, 394 F.3d 689, 693 (9th Cir. 1996). A conviction based on conduct that occurred before an officer commences the process of arrest is not necessarily rendered invalid by the officer's subsequent use of excessive force in making the arrest. Id. at 696. Here, it is unclear whether Plaintiff's conviction was based solely on conduct that occurred prior to his being shot by Deputy Barnes. On the one hand, Plaintiff clearly violated Penal Code sections 69 and 243(b) before he was shot by Deputy Barnes. He had already fled from Deputy Barnes and engaged him in physical confrontation. (Pl.'s Req. Jud. Notice at 268-269; Compl. 3:10-14.)
On the other hand, there is at least an argument that Plaintiff was still violating Penal Code section 69 (deterring or knowingly resisting an officer, by means of threat or violence, from performing duties imposed on him by law) at the time he was shot.
In any event, at this stage in the proceedings the Court must interpret the facts in the light most favorable to the non-moving party. North Star Int'l, 720 F.2d at 580. Thus, the Court must presume that Plaintiff's underlying conviction was based solely on conduct that occurred before Deputy Barnes shot Plaintiff in the back.
Significantly, the manner in which Plaintiff's criminal trial was conducted also reinforces this conclusion. In closing arguments at the trial, the Deputy District Attorney argued to the jury that "[w]hether or not Officer Barnes [sic] shooting of the defendant was justified is not the issue before you . . . [a]ll the charged crime [sic] occurred before the shooting. All the charged crimes occurred before the shooting." (Pl.'s Req. Jud. Notice 269:18-26.) The Deputy District Attorney further stated that the shooting was "an issue [for] another day, another court." (Id. at 315:4-6.) These statements strongly suggest that Plaintiff was tried solely for conduct that occurred prior to his being shot.
Furthermore, if Plaintiff's prior conviction was based on his conduct at the time of the shooting, then the jury at his criminal trial should have considered Plaintiff's claims of excessive force. See Smith, 394 F.3d at 695-696 (holding that, "if a police officer uses excessive force at the time of an arrest, the arrest is unlawful and the arrestee may not be convicted of resisting"). Yet, at Plaintiff's criminal trial, the Deputy District Attorney instructed the jury that they were not to consider whether excessive force was used. (Pl.'s Req. Jud. Notice 269:18-26.) This is further evidence that Plaintiff was tried solely for conduct that occurred prior to the time at which he was shot. Consequently, at this stage in the proceedings, when all facts must be interpreted in the light most favorable to the Plaintiff, the Court can not say that success on Plaintiff's excessive force claim would be inconsistent with Plaintiff's conviction under Penal Code sections 69 and 243(b). Finally, because Plaintiff's deliberate indifference claim against the County of Sacramento, the Sacramento County Sheriff's Department, Sheriff Lou Blanas, and the City of Elk Grove, for improper training also relates to Deputy Barnes' decision to shoot Plaintiff and not to the underlying conduct for which Plaintiff was convicted, that claim also survives Heck.
Smith involved Penal Code section 148(a)(1), which prohibits a person from "resist[ing], delay[ing], or obstruct[ing] any public officer . . . in the discharge [of] any duty of his or her . . . employment." While Penal Code section 148(a)(1) differs slightly from the statute in the instant case, Penal Code section 69, the Court believes the statutes are so similar that any discrepancies in analysis would be inconsequential.
3. Plaintiff's state tort claims for battery and negligence
As with Plaintiff's constitutional claims, Plaintiff's negligence claim rests solely on Deputy Barnes' decision to shoot Plaintiff, and not on the underlying conduct for which Plaintiff was convicted. Consequently, Plaintiff's negligence claim survives Heck. Plaintiff's battery claim, on the other hand, is premised on Deputy Barnes' "attacking and shooting" of Plaintiff. (Compl. 5:22.) In using the term "attacking," it is unclear whether Plaintiff is referring to the discharge of Deputy Barnes' firearm, the preceding physical confrontation with Deputy Barnes, or both. To the extent that Plaintiff's battery claim is based on the physical confrontation, that portion of the claim is barred by Heck. In California, "the lawfulness of [an] officer's conduct is an essential element of the offense of resisting, delaying, or obstructing a peace officer." Smith, 394 F.3d at 695. Consequently, Plaintiff could not have been convicted for conduct that occurred during the physical confrontation if Deputy Barnes actions during that confrontation were unlawful. Thus, insofar as Plaintiff's battery claim rests on his physical confrontation with Deputy Barnes, success by Plaintiff on that claim would necessarily imply the invalidity of his prior conviction.
B. Motion for judgment on the pleadings
After the pleadings are closed, any party may move for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). Fed.R.Civ.P. 12(c). A Rule 12(c) motion challenges the legal sufficiency of the opposing party's pleadings and operates in much the same manner as a motion to dismiss under Rule 12(b)(6). Irish Lesbian and Gay Org. v. Giuliani, 143 F.3d 638, 644 (2nd Cir. 1998). The primary distinction between a Rule 12(b)(6) motion and a motion for judgment on the pleadings is one of timing. Rule 12(b)(6) motions are typically brought before the defendant files an answer, while a motion for judgment on the pleadings can only be brought after the pleadings are closed. Fed.R.Civ.P. 12(c); Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999). Here, Defendants have moved for judgment on the pleadings before the pleadings have closed. Furthermore, Defendants say absolutely nothing in their Reply Brief to controvert the procedurally improper timing of their motion. For these reasons, Defendants' Motion for Judgement on the Pleadings is denied.
Defendants have not yet filed an answer to Plaintiff's Complaint.
CONCLUSION
Based on the foregoing, Plaintiffs' third claim for relief, alleging false imprisonment and false arrest, is dismissed with prejudice.
In addition, Plaintiff's fourth claim for relief, alleging battery, is dismissed, insofar as it relates to Plaintiff's physical confrontation with Defendant Deputy Barnes. Defendants' Motion to Dismiss, as it relates to Plaintiff's remaining claims, is DENIED. Defendants' Motion for Judgment on the Pleadings is DENIED.
IT IS SO ORDERED.