Foster v. Crosby

• Court: District Court, N.D. California
• Decided: February 7, 2025
• Docket: 3:22-cv-00878
• Status: Unknown

Opinion

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 MICHAEL BARKARRI FOSTER, Case No. 22-cv-00878-WHO (PR)

Plaintiff, 7 ORDER GRANTING DEFENDANTS’ MOTION FOR v. 8 SUMMARY JUDGMENT;

9 C. CROSBY, et al., ORDER DENYING PLAINTIFF’S MOTION FOR SUMMARY Defendants. 10 JUDGMENT 11 Dkt. Nos. 44 and 45

12 INTRODUCTION 13 The parties have filed competing motions for summary judgment concerning 14 plaintiff Michael Barkarri Foster’s claims that his jailors at Pelican Bay State Prison used 15 excessive force against him in violation of the Eighth Amendment. Foster’s excessive 16 force claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994) because success on 17 such claims would imply the invalidity of the guilty finding against him for battery on a 18 peace officer. Accordingly, defendants’ motion for summary judgment is GRANTED and 19 Foster’s motion for summary judgment is DENIED. Foster may refile suit if the guilty 20 finding is invalidated in one of the ways specified in Heck. 21 BACKGROUND 22 i. Cell Extraction and Medical Examinations 23 Foster alleges that he was attacked by guards at Pelican Bay State Prison on 24 February 1, 2021: 25

26 On 2-1-21, my 8th and 14th amendment rights were violated. The morning of SGT. Puente ordered the cell I occupied (160) to open. When C.O. L. 27 Sullenger opened the cell door, (C.O.’s) D. Eades, C. Crosby, M. Shaffer, (160) I felt my life was in danger so I started fighting. While fighting on my 1 feet, I seen [sic] (C.O.) C. Crosby with a sharp object in his hand, swung [sic] 2 and hit me in my face on right side. The pain was so imnenes [sic] that I bent over still swinging. Thats [sic] when I seen (C.O.) M. Shaffer hit me with a 3 baton on my lower right knee which made me drop to the floor. While I was proned out on the floor, I was stabbed again on my right leg below my knee. 4 When I yelled I turned my head and seen [sic] (C.O.) C. Crosby by my right 5 leg while (C.O.) B. Tubbs came down on the back of my legs with a shield. Shortly after I was handcuffed and taken out of the cell with blood all down 6 my shirt and all over the cell floor. While in the hallway of (A.S.U.) I then 7 seen [sic] (C.O.) M. Shaffer go inside the cleaning closet and come out with a bleach bottal [sic] stating, ‘It’s blood everywhere on the floor in there.’ 8 Then I heard (SGT.) J. Puente state to I.G.I., ‘we’re just going to say that the batteries were dead in the camera.’ The (RVR) (Log Number: 9 000000007060513) will show the (7219) medical photos. 10 (First Am. Compl., Dkt. No. 10 at 5-6.) 11 Defendants offer a different version of events. They allege that on February 1, 2021 12 at roughly 7:05am, Foster had placed a piece of cardboard to block the view into his cell. 13 (MSJ, Dkt. No. 44 at 8.) In consequence, custody staff were posted at the cell door to 14 observe him. (Id.) At 7:40am, Foster was found unresponsive by mental health staff 15 during medical rounds. (Id.) 16 After Sergeant Puente was notified, he went to Foster’s cell and attempted without 17 success to obtain a response. (Id.) Staff declared a medical emergency and assembled a 18 medical cell extraction team, who were outfitted with personal protective equipment. (Id.) 19 The team consisted of Tubbs (assigned to shield), Shaffer (assigned to baton), Eades 20 (assigned to handcuffs), and Crosby (assigned to leg restraints). (Id.) 21 Puente ordered the control room to open Foster’s cell. (Id.) Foster was standing 22 toward the front of the cell as if waiting for the door to open. (Id.) Puente and the team 23 members repeatedly ordered Foster to get on the ground, but he ignored the instructions. 24 (Id.) Foster walked toward the team “with his arms out in a fighting position” to which 25 Tubbs responded by using his shield to push Foster onto the lower bunk. (Id.) Once there, 26 he resisted Tubbs’s attempts to hold him there, disregarded multiple orders to stop 27 resisting, and began “throwing punches and kicking at the officers.” (Id.) As Crosby 1 approached him, Foster “kicked Crosby’s left shin with his right foot and Officer Crosby 2 responded with one right-handed strike to Foster’s upper torso.” (Id.) As Foster swung his 3 fists at Tubbs and Shaffer, Shaffer used his baton to strike Foster’s upper left arm. (Id. at 4 9.) Foster stopped swinging, lunged forward from the bunk, and landed on the ground. 5 (Id.) Tubbs fell on top of him and applied his weight to Foster’s back to restrain him, 6 though Foster continued to try to break free by moving his body left and right. (Id.) When 7 Foster stopped resisting a short time later, Crosby placed him in leg irons and Eades 8 handcuffed him. (Id.) He was then taken to the medical unit. (Id.) 9 Foster was medically examined at roughly 8 a.m. (Id.) He had an abrasion or 10 scratch to his right cheek that was actively bleeding, an abrasion or scratch on his right 11 shin, also bleeding, and bruising or discoloration to his right thigh. (Id.) Foster was 12 examined again around noon by a nurse who noted a puncture wound to the right cheek 13 with active bleeding, a puncture wound to his right shin with active bleeding, a swollen 14 right thigh with active bleeding, an abrasion or scratch to the back of the right shoulder, 15 and an abrasion or scratch to the back of the right hand. (Id.) A third examination was 16 conducted the next day, during which it was observed he had “what was now characterized 17 as a puncture wound, cut, laceration, slash, abrasion, and scratch to the right cheek with a 18 notable skin flap, as well as a puncture wound, cut, laceration, slash, abrasion, and scratch 19 to the right upper shin with a notable ‘indent/hole.’ ” (Id.) 20 ii. Disciplinary Hearing and Decision 21 Foster was charged with committing battery on a peace officer, a violation of 15 22 Cal. Code Regs. § 3005(d)(1), to which he pleaded not guilty: “I didn’t kick that man. I 23 didn’t assault or batter anyone.” (Id. at 10.) He was found guilty and lost 150 days of 24 custody credits as a penalty. (Id. at 11.) Those credits have not been restored. (Id.) 25 In determining Foster’s guilt, the hearing officer relied on Eades’s incident report, 26 among others. (Id. at 18.) Eades states that Foster repeatedly refused the team’s orders to 27 get down and comply and that the team had to use “[b]atons and physical force” to 1 iii. Foster’s Prison Sentence 2 Foster is serving a total determinate sentence of 18 years in state prison. (Id. at 11.) 3 This sentence is based on the 12 years he received for his 2018 state court conviction for 4 assault with a semi-automatic firearm, and the sentences he acquired during his 5 incarceration: four years for his 2019 conviction for possessing/manufacturing a deadly 6 weapon by a prisoner; one year for his 2020 conviction for battery on a non-prisoner; and 7 one year for his 2022 conviction for battery on a non-prisoner. (Id.) His projected earliest 8 possible release date is September 4, 2030. (Id.) Because he is serving a determinate 9 sentence, relief on his claims would necessarily affect the length of his sentence. 10 STANDARD OF REVIEW 11 Summary judgment is proper where the pleadings, discovery and affidavits 12 demonstrate that there is “no genuine dispute as to any material fact and [that] the movant 13 is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Material facts are those 14 which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 15 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a 16 reasonable jury to return a verdict for the nonmoving party. Id. 17 The party moving for summary judgment bears the initial burden of identifying 18 those portions of the pleadings, discovery and affidavits which demonstrate the absence of 19 a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). 20 Where the moving party will have the burden of proof on an issue at trial, it must 21 affirmatively demonstrate that no reasonable trier of fact could find other than for the 22 moving party. On an issue for which the opposing party by contrast will have the burden 23 of proof at trial, as is the case here, the moving party need only point out “that there is an 24 absence of evidence to support the nonmoving party’s case.” Id. at 325. 25 Once the moving party meets its initial burden, the nonmoving party must go 26 beyond the pleadings and, by its own affidavits or discovery, set forth specific facts 27 showing that there is a genuine issue for trial. Fed. R. Civ. P. 56(c). The Court is 1 or unnecessary will not be counted.” Anderson, 477 U.S. at 248. It is not the task of the 2 court to scour the record in search of a genuine issue of triable fact. Keenan v. Allan, 91 3 F.3d 1275, 1279 (9th Cir. 1996). The nonmoving party has the burden of identifying, with 4 reasonable particularity, the evidence that precludes summary judgment. Id. If the 5 nonmoving party fails to make this showing, “the moving party is entitled to a judgment as 6 a matter of law.” Celotex, 477 U.S. at 323 (internal quotations omitted). 7 DISCUSSION 8 Defendants contend that Foster’s claims are barred by Heck v. Humphrey, 512 U.S. 9 477 (1994). In Heck, the United States Supreme Court held that if a state prisoner’s 10 complaint seeks damages based on claims that would “necessarily imply the invalidity” of 11 their underlying conviction or sentence, the prisoner may not pursue claims under section 12 1983, unless the conviction or sentence was reversed, expunged or called into question by 13 issuance of a writ of habeas corpus. Id. at 486-87; see Cunningham v. Gates, 312 F.3d 14 1148, 1153 (9th Cir. 2002). Heck applies to prison disciplinary actions. For example, if a 15 prisoner’s section 1983 claim necessarily implies the invalidity of a disciplinary hearing 16 and the resulting deprivation of good-time credits, such a claim is barred by Heck. Nettles 17 v. Grounds, 830 F.3d 922, 928-29 (9th Cir. 2016) (citing Edwards v. Balisok, 520 U.S. 18 641, 644 (1997)). Conversely, if the § 1983 claim does not “raise any implication about 19 the validity” of the disciplinary decision or affect the duration of his incarceration, the 20 claim is not barred by Heck. Id. at 929 (quoting Muhammad v. Close, 540 U.S. 749, 754- 21 55 (2004)). 22 Heck bars a claim of excessive force where the excessive force is based on the same 23 actions during a continuous transaction as the plaintiff’s conviction for resisting arrest. 24 Hooper v. County of San Diego, 629 F.3d 1127, 1134 (9th Cir. 2011); Smith v. City of 25 Hemet, 394 F.3d 689, 696 (9th Cir. 2005) (en banc). “This is because a conviction for 26 resisting arrest may be obtained under California law only if the officers do not use 27 excessive force in the course of making that arrest.” Harrison v. Hedgpeth, No. C 12-0963 1 The facts of Harrison are instructive. Plaintiff was found guilty of obstructing and 2 resisting officers during their search of his cell for contraband. Id. at *3. He filed suit 3 under section 1983 against the officers for their alleged use of excessive force. The court 4 determined that plaintiff’s suit was barred by Heck:

5 Here, Lt. Sherman’s determination that Plaintiff resisted peace officers in the 6 performance of their duty when he failed to follow the officers’ orders to cuff-up or prone-out necessarily includes a finding that the officers were 7 engaged in the performance of their duties during that incident. Accordingly, the finding also, by necessity, means that the officers did not engage in 8 excessive force by releasing pepper spray into his cell. 9 Id. at *6. 10 Another action, Monaco v. Moberg, No. CV 07-6536 CAS (FMO), 2008 WL 11 11411716, at *1 (C.D. Cal. Jan. 7, 2008), is also instructive. Plaintiff sued prison guards 12 under section 1983 for excessive force, who stated they used force against plaintiff in 13 response to his attack against Moberg, a prison guard. Id. Plaintiff pleaded no contest in 14 state court to a charge of battery by an inmate on a non-confined person, a violation of 15 California Penal Code § 4501.5. Id. at *2. That conviction barred his excessive force 16 claims under Heck because his conviction for battery “may be lawfully obtained only if the 17 correctional officers did not use unlawful force during the subject incident.” Id. at *4. “To 18 prevail on his § 1983 excessive force claim, plaintiff would necessarily need to 19 demonstrate that Moberg used unnecessary or unreasonable force.” Id. 20 Here, the hearing officer’s determination that Foster ignored the officers’ 21 instructions and then committed battery on them, as stated in Eades’s report, includes a 22 finding that the officers were engaged in their duties and did not use unlawful force in 23 stopping the attack. Therefore, if Foster succeeds on his excessive force claims in this suit, 24 it would necessarily imply the invalidity of the prison disciplinary finding. Nettles, 830 25 F.3d at 929 (a state prisoner can challenge administrative determinations that do not “raise 26 any implication about the validity of the underlying conviction.”) Furthermore, there is no 27 dispute that Foster’s claims of excessive force are based on the same continuous 1 || transaction as his guilty finding for battery on a peace officer or that he was found guilty of 2 || battery on a peace officer. Because Foster’s civil rights action is barred by Heck, 3 || defendants’ motion for summary judgment is GRANTED and Foster’s motion for 4 || summary judgment is DENIED. 5 CONCLUSION 6 Defendants’ motion for summary judgment is GRANTED. (Dkt. No. 44.) Foster’s 7 || motion for summary judgment is DENIED. (Dkt. No. 45.) 8 Foster may refile suit if the guilty finding is invalidated in one of the ways specified 9 || in Heck (.e., the conviction or sentence is reversed, expunged or called into question by 10 || issuance of a writ of habeas corpus in another case). 11 The Clerk shall terminate all pending motions, enter judgment in favor of 12 defendants, and close the file. 13 IT IS SO ORDERED. . 14 Dated: February 7, 2025 \f WILLIAM H. ORRICK 16 United States District Judge

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