1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ERIK ARELLANO, No. 1:17-cv-01235-NONE-JLT 12 Plaintiff, 13 v. ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT 14 CHAD HASKINS and FREDERICK MARTINEZ, (Doc. No. 46) 15 Defendants. 16
17 18 Plaintiff Erik Arellano (“plaintiff”), proceeding pro se, filed this lawsuit against 19 Bakersfield police officers Chad Haskins and Frederick Martinez (collectively, “defendants”), 20 asserting a claim of excessive use of force in violation of the Fourth Amendment to the U.S. 21 Constitution. Presently before the court is defendants’ motion for summary judgment. (Doc. No. 22 46.) Plaintiff has opposed the motion1 and defendants have replied. (Doc. Nos. 53, 54.) 23 Pursuant to Local Rule 230(g) and General Order No. 617, the court has taken this matter under 24 submission on the papers without holding a hearing. For the reasons set forth below, defendants’ 25 motion will be granted. 26 ///// 27 1 The court issued a Rand notice to plaintiff on January 13, 2020, explaining the requirements for 28 1 BACKGROUND 2 A. Factual Background 3 1. Undisputed Events Leading to Defendants’ Use of Force 4 The undisputed evidence before the court on summary judgment is as follows. On 5 January 14, 2016, Officers Martinez and Damian Romero observed a 1994 green two-door 6 Mercury Cougar approach a posted stop sign at an intersection, but the driver, later identified as 7 plaintiff, failed to come to a complete stop before the limit line. (Doc. No. 46-3 ¶¶ 5–6.) Officers 8 Martinez and Romero attempted to pull plaintiff over for the traffic violation and plaintiff pulled 9 his vehicle into a Dollar General parking lot but then drove away from the officers. (Id. ¶¶ 7–8.) 10 Officer Romero activated the patrol vehicle siren, but plaintiff continued to drive away. (Id. ¶ 9.) 11 Officer Martinez observed plaintiff put on the hood of his sweatshirt, put both hands in the air, 12 and then make a movement as if he was reaching for an unknown object in the area of the front 13 passenger seat, before displaying gang signs at the officers. (Id. ¶ 10.) 14 Plaintiff led multiple police officers, including both of the defendant officers, in a vehicle 15 pursuit lasting approximately two hours, during which time he drove through red lights and stop 16 signs, drove in the wrong direction of traffic, and stopped several times before driving away when 17 the officers approached him. (Id. ¶¶ 11–12; Doc. No. 9 at 3.) Eventually, the officers deployed 18 spike strips under plaintiff’s vehicle tires and deflated three of them, but plaintiff continued to 19 drive away from the officers, driving again in the wrong direction of traffic. (Doc. No. 46-3 at ¶¶ 20 14–15; Doc. No. 9 at 3.) Plaintiff finally stopped his vehicle but blocked traffic in both 21 directions. (Doc. No. 46-3 at ¶ 18.) Multiple officers positioned their patrol vehicles behind 22 plaintiff’s vehicle, attempted to conduct a felony car stop, and commanded plaintiff in both 23 English and Spanish to exit his vehicle. (Id.) 24 2. Disputed Accounts of Defendants’ Use of Force 25 On the other hand, the facts pertaining to defendants’ use of force are disputed by the 26 parties on summary judgment. According to defendants, plaintiff remained inside the vehicle 27 with all the windows rolled up and refused to exit the vehicle or roll down the windows. (Id. ¶¶ 28 18, 20.) According to defendants, plaintiff also manipulated his right hand into the shape of a 1 firearm and pointed his hand at the officers and at his own head. (Id. ¶ 19.) Officer Martinez 2 alleges that plaintiff made numerous furtive movements inside the vehicle reaching for unknown 3 objects on top of or under the front passenger seat and even turned on the vehicle’s reverse lights 4 which indicated to the officers that plaintiff may attempt to back up and ram into them. (Id. ¶¶ 5 19–20.) About 20 minutes after plaintiff stopped his vehicle, Officer Martinez positioned himself 6 approximately 30 feet away from plaintiff’s vehicle with a less-lethal 40 mm projectile launcher 7 and deployed a single projectile at the front passenger vehicle window away from plaintiff 8 towards the windshield, causing the window to shatter. (Id. ¶¶ 21–22.) 9 Officer Haskins next yelled at plaintiff to “exit the vehicle now or [he] will send in the 10 dog and [plaintiff] will be bit.” (Id. ¶ 23.) However, plaintiff remained in the vehicle and Officer 11 Haskins again yelled, “This is your last warning. Come out with your hands up or you’re going 12 to be bit by the K9.” (Id. ¶ 24.) According to defendants, plaintiff finally exited the vehicle with 13 one hand in the air and one hand mimicking a gun. (Id. ¶ 25.) Officers announced over the PA 14 system for plaintiff to get on the ground and Officer Haskins yelled, “Police K9 get on the ground 15 or you’re going to get bit.” (Id. ¶¶ 26–27.) Plaintiff responded by yelling at the officers “shoot 16 me in the head” and pointed his finger toward his temple. (Id. ¶ 28.) Officer Martinez deployed 17 another less-lethal 40 mm projectile, which hit plaintiff in the left thigh but appeared to have no 18 effect. (Id. ¶ 29.) 19 Plaintiff turned away from Officer Martinez, refused the officers’ commands to surrender, 20 and continued yelling at them. (Id. ¶ 30.) Officer Haskins deployed his dog who engaged 21 plaintiff on the lower left leg and took him to the ground. (Id. ¶ 30.) Next, Officer Haskins 22 instructed plaintiff to first place his hands in front of him and then he would remove the dog, and 23 plaintiff complied and laid flat on the ground with hands in front of him. (Id. ¶¶ 31–32.) Officer 24 Haskins immediately disengaged his dog and the officers were then able to handcuff plaintiff and 25 take him into custody. (Id. ¶ 33.) Plaintiff was then transported to the Kern Medical Center for 26 treatment and subsequently transported and booked into the Kern County Jail. (Id. ¶¶ 35, 38.) 27 Plaintiff presents a very different version of these events on summary judgment. He 28 asserts that defendants used the projectile launcher and dog after he had already fully surrendered 1 to them and no longer posed a threat to the officers: 2 After a two-hour plus slowspeed chase all throughout numerous residential districts, and light manufacturing areas, Plaintiff did in 3 fact come to a full stop, with three tires blown out by spike strips, and thereafter Plaintiff surrendered, with his hands in the air and 4 eventually laying prone on the ground. However, after a few minutes of deliberation between the two Defendant [sic] named herein they 5 did shoot a rubber bullet projectile into the body of Plaintiff, and thereafter did release the K-9 (dog) unit to attack Plaintiff while he 6 was still in the state of total surrender. The Defendants failed to cease and desist the use of the attack dog for several minutes, and while 7 they watched, the Defendants did observe their K-9 Unit rip, tear and cause great and serious injuries upon the body of Plaintiff herein. 8 After some time passed, the Defendants did interfere with the use of their dog, and arrested Plaintiff. 9 10 (Doc. No. 9 at 3; see also Doc. No. 53 at 8.) 11 3. KGET News Video 12 In moving for summary judgment defendants have submitted news video footage that 13 aired on local station KGET, which they claim “clearly shows that the use of force by the 14 Defendant Officers was before [plaintiff] was in custody and clearly demonstrates that 15 [plaintiff’s] representation of what occurred and when the force was used by the Defendant 16 officers was fabricated.” (Ex. D, Doc. No. 46-4 (“KGET News Video”); Doc. No. 46-3 ¶ 51 17 (emphasis in original).) Plaintiff also relies on the KGET News Video in his opposition to the 18 pending motion, asserting that the footage “depicts the unjustifiable actions carried out by both 19 Defendants . . . as they undoubtedly violated Plaintiff’s constitutional rights to be free of 20 ‘excessive force’ and ‘punishment’ during the procedure of the arrest.” (Doc. No. 53 at 10.) 21 Both parties claim the KGET News Video not only captures the use of force by defendants, but 22 also confirms their version of events. (See Doc. No. 46-3 ¶¶ 50–51; Doc. No. 53 at 10.) The 23 court has reviewed this video evidence and finds that the KGET News Video reveals the 24 following sequence of relevant events. 25 The first part of the video footage captures the vehicle pursuit of plaintiff during which 26 plaintiff’s vehicle can be seen slowly weaving out of lanes and driving without his lights on. 27 (KGET News Video at 00.39–1.03). The footage also shows plaintiff driving through a red light 28 on the rims of the vehicle as a result of running over the spike strips. (Id. at 1.04–1.08.) The 1 second part of the KGET News Video captures the events after plaintiff stopped his vehicle, 2 starting with plaintiff slowly opening the driver’s side door with his hand sticking out. (Id. at 3 1.08–1.17.) Plaintiff eventually gets out of the car and faces the police officers with both hands 4 raised in the air, but his right hand is manipulated into the shape of a gun and he appears to be 5 yelling at the police officers. (Id. at 1.17–1.22.) The footage then cuts to plaintiff turning around 6 and an officer yelling, “Get on the ground, down now,” after which the police dog was released 7 and brought plaintiff down by his leg. (Id. at 1.23–1.30.) Finally, the relevant footage ends with 8 the police officers moving toward plaintiff who remained on the ground. (Id. at 1.30–1.36.) 9 4. State Court Criminal Proceedings 10 Plaintiff was charged in state court with the following violations: (1) California Vehicle 11 Code § 2800.4 (evading a peace officer by driving in the opposite direction of traffic); (2) 12 California Vehicle Code § 2800.2 (driving recklessly while evading a peace officer); (3) 13 California Penal Code § 30305(a)(1) (possession of ammunition by a person prohibited from 14 owning or possessing a firearm); and (4) California Penal Code § 69 (obstruction or resistance of 15 an officer through the use of threat or violence). (See Ex. A, Doc. No. 46-2 at 5.) On January 29, 16 2016, a preliminary hearing was held in which Officer Martinez testified regarding the events 17 leading to plaintiff’s arrest, including plaintiff mimicking a firearm with his hand and pointing it 18 at his own head and at the police officers twice while remaining inside his vehicle after he came 19 to a stop and after he exited the vehicle. (Ex. B, Doc. No. 46-2 at 52, 55.) Following the 20 conclusion of testimony at the preliminary examination, plaintiff’s defense counsel raised the 21 following argument challenging the charge of violating California Penal Code § 69: 22 Just starting with the PC 69 charge, there’s evidence that [plaintiff] evaded law enforcement. But then the evidence is, eventually, once 23 the car is stopped, [plaintiff] was taken into custody. There’s no evidence that [plaintiff] would use force or fear once the car was 24 stopped and he was taken into custody. So I think that Count 4 should be discharged. 25 26 (Id. at 99.) In response to this argument, the prosecuting deputy district attorney stated: 27 With regard to the PC 69, I think simulating a firearm, pointing a firearm, real or simulated, to the police, under these circumstances, 28 certainly is an attempt to tell the officers that he’s willing to use 1 whatever is necessary to prevent them from capturing him. I think for purposes of a prelim, that is sufficient evidence for a holding 2 order on Count 4. 3 (Id. at 107.) The state court ultimately concluded that probable cause in support of the charge of 4 violating California Penal Code § 69 had been established based on the following: 5 And lastly, as to Count 4; namely the violation of Penal Code Section 69, obstructing an executive officer’s performance of their duty – I 6 think you had an interesting argument, Mr. Pope [plaintiff’s counsel in the state court criminal proceedings]. But I think all of the totality 7 of the facts and the fact that – specific fact that your client made that gesture mimicking a gun, pointing at the officers, that, in conjunction 8 with everything that happened in the case, shows that that crime was committed. And there’s sufficient evidence to believe that the 9 defendant’s guilty thereof . . . . 10 (Id. at 111.) 11 On November 18, 2016, a change of plea hearing was held in the state court criminal case 12 and plaintiff pleaded no contest to all charges and enhancements, including the charge of 13 violating California Penal Code § 69. (See Ex. C, Doc. No. 46-2 at 124.) The parties agreed and 14 stipulated to a factual basis for the plea “based on the police reports and/or the [preliminary 15 hearing] transcript[.]” (Id. at 120.) Plaintiff was subsequently sentenced to a term of 16 imprisonment in state prison of 14 years and 8 months, and is currently incarcerated. (Ex. A, 17 Doc. No. 46-4 at 6.) 18 B. Procedural History 19 On September 15, 2017, plaintiff filed his original complaint in this action. (Doc. No. 1.) 20 The assigned magistrate judge issued an order requiring plaintiff to show cause as to why this 21 case should not be dismissed as barred pursuant to the Supreme Court’s decision in Heck v. 22 Humphrey, 512 U.S. 477 (1994). (Doc. No. 3.) Specifically, the magistrate judge explained: 23 To be convicted of a violation of Cal. Penal Code § 69, it must be established that the officer was engaged “in the performance of his 24 duty.” Cal. Penal Code § 69. This requires that the officer be engaged in the “lawful” performance of his official duties. See 25 People v. Simons, 42 Cal. App. 4th 1100, 1108 (1996). Plaintiff’s claim for the use of excessive force implies the arrest was “unlawful” 26 because “it is a public offense for a peace officer to use unreasonable and excessive force in effecting an arrest.” People v. Olguin, 119 27 Cal. App. 3d 39, 45 (1981). Thus, a determination that the defendants used excessive force in the course of the arrest would 28 require a finding that the officers were not engaged in the lawful 1 performance of his duty, and that the conviction under Section 69 is invalid. See Heck, 512 U.S. at 487; see also Smithart v. Towery, 79 2 F.3d 951, 952 (9th Cir. 1996) (“a criminal conviction arising out of the same facts stands and is fundamentally inconsistent with the 3 unlawful behavior for which section 1983 damages are sought, the 1983 action must be dismissed”)[.] 4 Moreover, because Plaintiff pleaded nolo contendere to the charges, 5 he has been found guilty of the charge for purposes of determining whether he may bring a claim against the officers. Nuno v. County 6 of San Bernardino, 58 F.Supp.2d 1127, 1135 (C.D. Cal. 1999) (“a plea of nolo contendere in a California criminal action has the same 7 effect as a guilty plea or jury verdict of guilty” when evaluating a Heck claim). 8 9 (Id. at 2–3.) 10 Plaintiff requested additional time to respond to the order to show cause and to seek 11 representation, and the court ordered plaintiff to file his response to the order by December 1, 12 2017. (Doc. Nos. 4, 5.) However, plaintiff did not file any response by that deadline and the 13 magistrate judge issued findings and recommendations recommending that this action be 14 dismissed due to plaintiff’s failure to comply with the court’s order and failure to prosecute this 15 action. (Doc. No. 6.) On December 28, 2017, plaintiff filed objections to those findings and 16 recommendations, requesting that the court “forgive his past lateness” and grant him an extension 17 of time so that a legal assistant could assist him by studying his case. (See Doc. No. 7.) The 18 magistrate judge withdrew the findings and recommendations and ordered plaintiff to file an 19 amended complaint including “facts sufficient for the Court to determine whether the action is 20 barred by Heck v. Humphrey, 512 U.S. 477, 486 N.6 (1994).” (Doc. No. 8 at 1–2.) On January 21 24, 2018, plaintiff filed his amended complaint. (Doc. No. 9.) 22 LEGAL STANDARD 23 Summary judgment is appropriate when the moving party “shows that there is no genuine 24 dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 25 Civ. P. 56(a). In summary judgment practice, the moving party “initially bears the burden of 26 proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 27 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving 28 party may accomplish this by “citing to particular parts of materials in the record, including 1 depositions, documents, electronically stored information, affidavits or declarations, stipulations 2 (including those made for purposes of the motion only), admissions, interrogatory answers, or 3 other materials” or by showing that such materials “do not establish the absence or presence of a 4 genuine dispute, or that the adverse party cannot produce admissible evidence to support the 5 fact.” Fed. R. Civ. P. 56(c)(1)(A), (B). If the moving party meets its initial responsibility, the 6 burden then shifts to the opposing party to establish that a genuine issue as to any material fact 7 actually does exist. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 8 (1986). In attempting to establish the existence of this factual dispute, the opposing party may 9 not rely upon the allegations or denials of its pleadings but is required to tender evidence of 10 specific facts in the form of affidavits, and/or admissible discovery material, in support of its 11 contention that the dispute exists. See Fed. R. Civ. P. 56(c)(1); Matsushita, 475 U.S. at 586 n.11; 12 Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002) (“A trial court can only consider 13 admissible evidence in ruling on a motion for summary judgment.”). The opposing party must 14 demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the 15 suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. 16 Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987), and that the 17 dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the 18 nonmoving party. See Wool v. Tandem Computers, Inc., 818 F.2d 1433, 1436 (9th Cir. 1987). 19 In the endeavor to establish the existence of a factual dispute, the opposing party need not 20 establish a material issue of fact conclusively in its favor. It is sufficient that “the claimed factual 21 dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at 22 trial.” T.W. Elec. Serv., 809 F.2d at 631. Thus, the “purpose of summary judgment is to ‘pierce 23 the pleadings and to assess the proof in order to see whether there is a genuine need for trial.’” 24 Matsushita, 475 U.S. at 587 (citations omitted). 25 “In evaluating the evidence to determine whether there is a genuine issue of fact,” the 26 court draws “all reasonable inferences supported by the evidence in favor of the non-moving 27 party.” Walls v. Cent. Contra Costa Cty. Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011). It is 28 the opposing party’s obligation to produce a factual predicate from which the inference may be 1 drawn. See Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244–55 (E.D. Cal. 1985), 2 aff’d, 810 F.2d 898, 902 (9th Cir. 1987). Undisputed facts are taken as true for purposes of a 3 motion for summary judgment. Anthoine v. N. Cent. Counties Consortium, 605 F.3d 740, 745 4 (9th Cir. 2010). To demonstrate a genuine issue, the opposing party “must do more than simply 5 show that there is some metaphysical doubt as to the material facts . . . . Where the record taken 6 as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 7 ‘genuine issue for trial.’” Matsushita, 475 U.S. at 587 (citation omitted). 8 When a plaintiff proceeds pro se, the court should “treat the opposing party’s papers more 9 indulgently than the moving party’s papers.” Lew v. Kona Hospital, 754 F.2d 1420, 1423 (9th 10 Cir. 1985); see also Scharf v. U.S. Atty. Gen., 597 F.2d 1240, 1243 (9th Cir. 1979) (finding that 11 courts may be “much more lenient” with the affidavits and documents of the party opposing 12 summary judgment). In a pro se civil rights action, a verified complaint may constitute an 13 opposing affidavit for purposes of summary judgment so long as the allegations are based on a 14 plaintiff’s personal knowledge of admissible evidence, and not merely on belief. See McElyea v. 15 Babbitt, 833 F.2d 196, 197–98 & n.1 (9th Cir. 1987). If a plaintiff states that the facts in the 16 complaint are true under penalty of perjury, the pleading is “verified.” Schroeder v. McDonald, 17 55 F.3d 454, 460 n.10 (9th Cir. 1995). 18 Finally, where is video evidence of the incident giving rise to an excessive use of force 19 claim, a court must “view[] the facts in the light depicted by the videotape.” Scott v. Harris, 550 20 U.S. 372, 380–81 (2007). Nonetheless, even where video evidence exists, the circumstances may 21 be such that a reasonable factfinder could draw divergent conclusions from what the video 22 evidence shows. See S.R. Nehad v. Browder, 929 F.3d 1125, 1132–39 (9th Cir. 2019) (disputed 23 issues of material fact precluded summary judgment in an action alleging excessive use of force 24 even though the evidence included surveillance footage); Glenn v. Wash. Cty., 673 F.3d 864, 878 25 (9th Cir. 2011) (“The circumstances of this case can be viewed in various ways, and a jury should 26 have the opportunity to assess the reasonableness of the force used after hearing all the 27 evidence.”). 28 ///// 1 ANALYSIS 2 Title 42 U.S.C. § 1983 provides a cause of action for the deprivation of “rights, privileges, 3 or immunities secured by the Constitution or laws of the United States” by a person acting “under 4 color of any statute, ordinance, regulation, custom, or usage.” Gomez v. Toledo, 446 U.S. 635, 5 639 (1980). To succeed on a § 1983 claim, plaintiff must demonstrate that the action (1) occurred 6 “under color of state law,” and (2) resulted in the deprivation of a constitutional or federal 7 statutory right. Leer v. Murphy, 844 F.2d 628, 632–33 (9th Cir. 1988) (citations omitted); see 8 also West v. Atkins, 487 U.S. 42, 48 (1988); Parratt v. Taylor, 451 U.S. 527, 535 (1981). 9 A. Defendants’ Request for Judicial Notice 10 Defendants request that the court take judicial notice of: (1) a copy of the criminal court 11 docket in the underlying state court criminal case of People v. Arellano, Kern County Superior 12 Court Case No. BF162809A; (2) a certified copy of the transcript from plaintiff’s January 29, 13 2016 preliminary hearing in the Kern County Superior Court; and (3) a certified copy of the 14 transcript from plaintiff’s November 18, 2016 change of plea hearing in the Kern County 15 Superior Court. (See Doc. No. 46-2.) Plaintiff has not objected to defendants’ request. 16 A court may “judicially notice a fact that is not subject to reasonable dispute because it: 17 (1) is generally known within the trial court’s territorial jurisdiction; or (2) can be accurately and 18 readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. 19 Evid. 201(b). The court may also take judicial notice of matters of public record. Lee v. City of 20 L.A., 250 F.3d 668, 688–89 (9th Cir. 2001). When a court takes judicial notice of a document, “it 21 may do so not for the truth of the facts recited therein, but for the existence of the [record], which 22 is not subject to reasonable dispute over its authenticity.” Id. at 690 (internal quotation marks and 23 citation omitted). Here, the court will take judicial notice of the documents from the file of the 24 underlying state court criminal prosecution of plaintiff. See Lininger v. Pfleger, No. 17-cv- 25 03385, 2017 WL 5128170, at *1 n.1 (N.D. Cal. Nov. 6, 2017) (“The documents submitted for 26 judicial notice are documents filed in Plaintiff’s state court criminal proceedings, which are 27 suitable for judicial notice under Fed. R. Evid. 201(b).”) (citing Dawson v. Mahoney, 451 F.3d 28 550, 551 (9th Cir. 2006)). 1 B. Heck Doctrine 2 Defendants argue that plaintiff’s claim of the excessive use of force against him is barred 3 by the decision in Heck, based on his plea of no contest to resisting arrest in violation of 4 California Penal Code § 69. (Doc. No. 46 at 17.) In Heck, the Supreme Court held that 5 in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose 6 unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed 7 or direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such a determination, or called into 8 question by a federal court’s issuance of a writ of habeas corpus. A claim for damages bearing that relationship to a conviction or 9 sentence that has not been so invalidated is not cognizable under § 1983. Thus, when a [plaintiff] seeks damages in a § 1983 suit, the 10 district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or 11 sentence; if it would, the complaint must be dismissed . . . . But if the district court determines that the plaintiff’s action, even if 12 successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed 13 to proceed, in the absence of some other bar to the suit. 14 512 U.S. at 486–87. “[T]he relevant question is whether success in a subsequent § 1983 suit 15 would ‘necessarily imply’ or ‘demonstrate’ the invalidity of the earlier conviction or sentence 16 under [a resisting arrest statute].” Smith v. City of Hemet, 394 F.3d 689, 695 (9th Cir. 2005) 17 (citing Heck, 512 U.S. at 487). 18 The Ninth Circuit has held that a § 1983 claim for excessive use of force is not barred 19 under Heck “where the conviction and the § 1983 claim are based on different actions during ‘one 20 continuous transaction.’” Hooper v. Cnty. of San Diego, 629 F.3d 1127, 1134 (9th Cir. 2011). 21 For example, Heck does not bar an excessive force claim if the plaintiff alleges that the force used 22 by a police officer was not objectively reasonable in relation to the level of resistance. Id. at 1133 23 (noting that such a claim “does not collaterally attack [plaintiff’s] conviction [or] deny that 24 [plaintiff] resisted”) (internal citations omitted). However, if a criminal conviction arises out of 25 the same facts and “is fundamentally inconsistent with the unlawful behavior for which section 26 1983 damages are sought,” then the § 1983 action must be dismissed. Beets v. Cnty. of L.A., 669 27 F.3d 1038, 1042 (9th Cir. 2012) (internal citations and quotation marks omitted). 28 ///// 1 California Penal Code § 69 provides: 2 Every person who attempts, by means of any threat or violence, to deter or prevent an executive officer from performing any duty 3 imposed upon the officer by law, or who knowingly resists, by the use of force or violence, the officer, in the performance of his or her 4 duty, is punishable by a fine not exceeding ten thousand dollars ($10,000), or by imprisonment pursuant to subdivision (h) of Section 5 1170, or in a county jail not exceeding one year, or by both such fine and imprisonment. 6 7 Id. This statute “sets forth two separate ways in which an offense can be committed. The first is 8 attempting by threats or violence to deter or prevent an officer from performing a duty imposed 9 by law; the second is resisting by force or violence an officer in the performance of his or her 10 duty.” In re Manual G., 16 Cal. 4th 805, 814 (1997). 11 “In California, the lawfulness of the officer’s conduct is an essential element of the 12 offense of resisting, delaying, or obstructing a peace officer.” Smith, 394 F.3d at 695 (citing 13 People v. Curtis, 70 Cal. 2d 347, 354–56, 357 n.9 (1969); Susag v. City of Lake Forest, 94 Cal. 14 App. 4th 1401, 1409 (2002)). “If the officer was not performing his or her duties at the time of 15 the arrest, the arrest is unlawful and the arrestee cannot be convicted under a [resisting arrest 16 statute].” Id. “Excessive force used by a police officer at the time of the arrest is not within the 17 performance of the officer’s duty.” Smith, 394 F.3d at 695–96 (citing People v. Olguin, 119 Cal. 18 App. 3d 39, 45–46 (1981); People v. White, 101 Cal. App. 3d 161, 167 (1980)). 19 Here, the parties agree that plaintiff was convicted pursuant to his no contest plea to 20 resisting arrest in violation of California Penal Code § 69.2 It is undisputed that the conviction 21 has not been reversed, expunged, declared invalid, or called into question by the issuance of a 22 writ of habeas corpus. Accordingly, defendants argue that plaintiff’s excessive force claim in this 23 civil action is Heck barred because “Plaintiff undisputedly pled no contest to obstructing/resisting 24 an executive officer in violation of Cal. Penal Code § 69” and that the events surrounding 25 2 In his opposition brief, plaintiff states that he “pleaded no contest (Not Guilty)” to the 26 California Penal Code § 69 charge. (Doc. No. 53 at 2.) However, under California law, a plea of nolo contendere or no contest is “considered the same as a plea of guilty and that, upon a plea of 27 nolo contendere, the court shall find the defendant guilty.” Cal. Penal Code § 1016(3); see also Nuño, 58 F.Supp.2d at 1135 (“[F]or purposes of the Heck analysis, a plea of nolo contendere in a 28 1 plaintiff’s arrest “all occurred prior to and in order to get the Plaintiff into custody because the 2 Plaintiff was actively resisting arrest.” (Doc. No. 46-1 at 20, 21.) 3 In opposition, plaintiff contends that he did not resist arrest and instead surrendered 4 himself to the officers after he stopped the vehicle, thus defendants’ use of the projectile launcher 5 and police dog against him were unnecessary and constituted the use of excessive force in 6 violation of his Eighth Amendment rights. (See Doc. No. 53 at 14 (“Plaintiff’s hands remained in 7 the air even after being struck by the 40 mm launcher, thus such use of the 40 mm launcher was 8 unnecessary.”); see also Doc. No. 9 at 2–3 (alleging in his verified first amended complaint that 9 the force was used against him “after he no longer posed a threat when he surrendered . . . . with 10 his hands in the air and eventually laying prone on the ground”).) The California Supreme Court 11 has held that “Heck would bar [plaintiff’s] § 1983 claim to ‘the extent that [it] alleges that he 12 offered no resistance, that he posed no reasonable threat of obstruction to the officers, and that the 13 officers had no justification to employ any force against him at the time [such force was used.]’” 14 Hooper, 629 F.3d at 1132 (citing Yount v. City of Sacramento, 43 Cal. 4th 885, 898 (2008) 15 (emphasis in original)). Regardless of whether plaintiff’s contentions are supported by the KGET 16 News Video, plaintiff’s “theory that he was not resisting or posed no reasonable threat of 17 obstruction to the officers, and the officers had no reasonable justification to employ any force 18 against him clearly undermines his conviction under Section 69.”3 Webb v. City & Cnty. of S.F., 19 No. C 11-00476 CRB, 2011 WL 6151605, at *7 (N.D. Cal. Dec. 12, 2011). 20 Plaintiff also argues that his claim is not Heck barred given that he “was charged with 21 Penal Code 69, and later pleaded no contest (Not Guilty), because he allegedly mimicked a 22 firearm with his hand and not because he was resisting.”4 (Doc. No. 53 at 2–3.) However, at his 23 3 Here, plaintiff’s amended complaint serves as an affidavit in opposition to summary judgment 24 because it is based on plaintiff’s firsthand personal knowledge of the events surrounding his arrest 25 and he states the facts in the amended complaint are true under penalty of perjury. (See Doc. No. 9 at 6.) Plaintiff plainly asserts therein that he fully surrendered to the police officers and did not 26 offer any resistance to arrest. Therefore, even in viewing this evidence in a light most favorable to plaintiff, this assertion renders his claim Heck barred. 27 4 The KGET News Video does show plaintiff, after exiting the vehicle, raise both hands in the air 28 1 || preliminary hearing, the state court found that “all of the totality of the facts,” including the 2 | mimicking of a gun with his hand, “in conjunction with everything that happened in the chase,” 3 | show that a violation of California Penal Code § 69 was committed and, accordingly, the court 4 | ultimately determined probable cause to sustain that charge had been established. (Ex. B, Doc. 5 | No. 46-2 at 111.) Furthermore, at his change of plea hearing plaintiff agreed and stipulated, 6 | without any restriction or limitation, that the preliminary hearing transcript and the police reports 7 | supplied the factual basis for his no contest plea. (See Ex. C, Doc. No. 46-2 at 120.) Given that 8 | plaintiff agreed and stipulated to a specific factual basis for his plea, he “cannot now pick apart 9 || the testimony that forms the factual basis.” Winder v. McMahon, 345 F. Supp. 3d 1197, 1206 10 | (C.D. Cal. 2018). Because plaintiffs assertion that he did not resist arrest necessarily implicate 11 | the validity of his conviction in state court for violating California Penal Code § 69, his excessive 12 | use of force claim brought in this action is Heck barred. Accordingly, summary judgment must 13 || be entered in favor of defendants.° 14 CONCLUSION 15 For the foregoing reasons, defendants’ motion for summary judgment (Doc. No. 46) is 16 | GRANTED. The Clerk of Court is directed to enter judgment in favor of defendants and to close 17 || the case. 18 | IT IS SO ORDERED. as - Dated: _ March 30, 2021 foe oe 20 UNITED STATES DISTRICT JUDGE 21 22 23 24 25 26 > Because plaintiff's § 1983 excessive force claim is Heck barred, the court need not reach the 27 | issues of whether defendants’ use of force was reasonable under the Fourth Amendment or the 28 question of whether the defendants are entitled to summary judgment on qualified immunity grounds. 14