Martell v. San Diego County Deputy Sheriffs Cole (0473)

• Court: District Court, S.D. California
• Decided: January 9, 2023
• Docket: 3:22-cv-00920
• Status: Unknown

Opinion

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 RONALD MARTELL, Case No.: 22-CV-920 JLS (MSB)

12 Plaintiff, ORDER (1) GRANTING IN PART 13 v. AND DENYING IN PART DEFENDANTS’ REQUEST FOR 14 SAN DIEGO COUNTY DEPUTY JUDICIAL NOTICE; (2) GRANTING SHERIFFS COLE (#0473); NAPUTI 15 DEFENDANTS’ MOTION TO (#3018); JOHNSON (#0497); LOVEJOY DISMISS; AND (3) DISMISSING 16 (#3215); LANNON (#0233); YOUNG COMPLAINT WITH PREJUDICE (#0188); and DOES 1 through 5, 17 Defendants. (ECF Nos. 7, 7-2) 18 19 20 21 22 Presently before the Court are Defendants San Diego County Deputy Sheriffs Cole, 23 Naputi, Johnson, Lovejoy, Lannon, and Young’s Motion to Dismiss (“Mot.,” ECF No. 7) 24 and Request for Judicial Notice in Support of the same (“RJN,” ECF No. 7-2). Plaintiff 25 Ronald Martell filed a Response in Opposition (“Opp’n,” ECF No. 14) and Defendants 26 filed a Reply in Support (“Reply,” ECF No. 15) thereof. The Court took the matter under 27 submission without oral argument pursuant to Civil Local Rule 7.1(d)(1). See ECF No. 28 12. Having considered Plaintiff’s Complaint (“Compl.,” ECF No. 1), the Parties’ 1 arguments, and the law, the Court GRANTS IN PART and DENIES IN PART 2 Defendants’ Request for Judicial Notice, GRANTS Defendants’ Motion, and 3 DISMISSES WITH PREJUDICE Plaintiff’s Complaint. 4 BACKGROUND 5 On September 3, 2020, San Diego Sheriff’s Deputies Brian Cole, Kerry Johnson, 6 David Lovejoy, David Lannon, and Jonathan Young (collectively, “Defendants”) 7 responded to Plaintiff’s home in El Cajon, California, to investigate a claim of domestic 8 violence and assault. Compl. ¶ 7. Defendants forced entry into Plaintiff’s home and 9 ordered him to get on the ground. Id. ¶ 8. According to Plaintiff, as he was attempting to 10 comply with Defendants’ orders, he “was swarmed [by Defendants] and instinctively 11 resisted” efforts to arrest him. Id. Plaintiff claims that as Defendants wrestled him to the 12 ground, his arm was wrenched back so severely that he was later diagnosed with a 13 dislocated shoulder and rotator cuff tear. Id. Plaintiff was charged with various offenses, 14 id. ¶ 10, and ultimately pleaded guilty to one count of battery and, relevant here, one count 15 of resisting, delaying, or obstructing a peace officer in violation of California Penal Code 16 § 148. Id. ¶ 11. He was sentenced to summary probation. Id. ¶ 12. 17 Plaintiff filed the instant action on June 23, 2022. See generally Compl. He alleges 18 Defendants used excessive force in violation of his Fourth Amendment rights, and 19 therefore seeks money damages pursuant to 42 U.S.C. § 1983. Id. ¶¶ 15–20. Defendants 20 responded with the instant Motion to Dismiss on September 6, 2022, arguing that Plaintiff’s 21 excessive force claim is precluded by his guilty plea for resisting, delaying, or obstructing 22 a peace officer. Memorandum of Points and Authorities in Support of Defendants’ Motion 23 to Dismiss Plaintiff’s Complaint (“Mem.,” ECF No. 7-1) at 2. 24 DEFENDANTS’ REQUEST FOR JUDICIAL NOTICE 25 Defendants request that the Court take judicial notice of the following exhibits: (1) 26 Plaintiff’s criminal complaint and plea agreement in People v. Ronald Edward Martell, 27 Superior Court of California, Case No. CE401890CA, and (2) body-worn camera footage 28 of the events in question. See generally RJN. 1 As a general rule, a district court cannot rely on evidence outside the pleadings in 2 ruling on a Rule 12(b)(6) motion without converting the motion into a Rule 56 motion for 3 summary judgment. See United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003) (citing 4 Fed. R. Civ. P. 12(b); Parrino v. FHP, Inc., 146 F.3d 699, 706 n.4 (9th Cir. 1998)). “A 5 court may, however, consider certain materials—documents attached to the complaint, 6 documents incorporated by reference in the complaint, or matters of judicial notice— 7 without converting the motion to dismiss into a motion for summary judgment.” Id. at 908 8 (citing Van Buskirk v. CNN, 284 F.3d 977, 980 (9th Cir. 2002); Barron v. Reich, 13 F.3d 9 1370, 1377 (9th Cir. 1994); 2 James Wm. Moore et al., Moore’s Federal Practice § 12.34[2] 10 (3d ed. 1999)). Federal Rule of Evidence 201(b) provides that “[t]he court may judicially 11 notice a fact that is not subject to reasonable dispute because it: (1) is generally known 12 within the trial court’s territorial jurisdiction; or (2) can be accurately and readily 13 determined from sources whose accuracy cannot reasonably be questioned.” 14 “Under Rule 201 of the Federal Rules of Evidence, the court may take judicial notice 15 of the records of state courts.” Louis v. McCormick & Schmick Rest. Corp., 460 F. Supp. 16 2d 1153, 1156 (C.D. Cal. 2006). Accordingly, the Court finds that taking judicial notice 17 of Exhibit (1) is appropriate, as it consists of state court records. Moreover, the documents 18 contained in Exhibit (1) were referenced in Plaintiff’s Complaint, see Compl. ¶¶ 10–12; 19 consequently, the Court finds these materials were additionally incorporated by reference 20 into the Complaint. As to the body-worn camera footage, the Court already has admitted 21 this exhibit in its Order Granting Plaintiff’s Request for Leave to Lodge Exhibit in Support 22 of Complaint. See ECF No. 4. Accordingly, Defendants’ request for judicial notice as to 23 the body-worn camera footage is moot and therefore denied. See Hinshaw v. China Times 24 Media Grp., No. 220CV04302ODWJEMX, 2020 WL 6203571, at *2 (C.D. Cal. Oct. 22, 25 2020) (“[T]he Court need not take judicial notice of documents already filed in [an] 26 action.”), appeal dismissed, No. 20-56224, 2021 WL 5822547 (9th Cir. Aug. 11, 2021). In 27 sum, the Court GRANTS IN PART and DENIES IN PART Defendants’ Request for 28 Judicial Notice. 1 DEFENDANTS’ MOTION TO DISMISS 2 I. Legal Standard 3 Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the 4 defense that the complaint “fail[s] to state a claim upon which relief can be granted,” 5 generally referred to as a motion to dismiss. The Court evaluates whether a complaint 6 states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil 7 Procedure 8(a), which requires a “short and plain statement of the claim showing that the 8 pleader is entitled to relief.” Although Rule 8 “does not require ‘detailed factual 9 allegations,’ . . . it [does] demand more than an unadorned, the-defendant-unlawfully- 10 harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. 11 Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, “a plaintiff’s obligation to 12 provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and 13 conclusions, and a formulaic recitation of the elements of a cause of action will not do.” 14 Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). A 15 complaint will not suffice “if it tenders ‘naked assertion[s]’ devoid of ‘further factual 16 enhancement.’” Iqbal, 556 U.S. at 677 (citing Twombly, 550 U.S. at 557). 17 To survive a motion to dismiss, “a complaint must contain sufficient factual matter, 18 accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting 19 Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible 20 when the facts pled “allow the court to draw the reasonable inference that the defendant is 21 liable for the misconduct alleged.” Iqbal, 556 U.S. at 677 (citing Twombly, 550 U.S. at 22 556). That is not to say that the claim must be probable, but there must be “more than a 23 sheer possibility that a defendant has acted unlawfully.” Id. Facts “‘merely consistent 24 with’ a defendant’s liability” fall short of a plausible entitlement to relief. Id. (quoting 25 Twombly, 550 U.S. at 557). Further, the Court need not accept as true “legal conclusions” 26 contained in the complaint. Id. This review requires context-specific analysis involving 27 the Court’s “judicial experience and common sense.” Id. at 678 (citation omitted). 28 “[W]here the well-pleaded facts do not permit the court to infer more than the mere 1 possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the 2 pleader is entitled to relief.’” Id. Finally, “[t]he court need not . . . accept as true 3 allegations that contradict matters properly subject to judicial notice or by exhibit.” 4 Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.), opinion amended on 5 denial of reh’g, 275 F.3d 1187 (9th Cir. 2001). 6 II. Analysis 7 Under the Supreme Court’s ruling in Heck v. Humphries, a § 1983 claim is barred if 8 “a judgment in favor of the plaintiff would necessarily imply the invalidity of his 9 conviction or sentence.” 512 U.S. at 487. “[I]f it would, the complaint must be dismissed 10 unless the plaintiff can demonstrate that the conviction or sentence has already been 11 invalidated.” Id. On the other hand, “if the district court determines that the plaintiff’s 12 action, even if successful, will not demonstrate the invalidity of any outstanding criminal 13 judgment against the plaintiff, the action should be allowed to proceed, in the absence of 14 some other bar to the suit.” Id. “To decide whether success on a section 1983 claim would 15 necessarily imply the invalidity of a conviction, [courts] must determine which acts formed 16 the basis for the conviction. When the conviction is based on a guilty plea, [courts] look 17 at the record to see which acts formed the basis for the plea.” Lemos v. Cnty. of Sonoma, 18 40 F.4th 1002, 1006 (9th Cir. 2022). 19 Plaintiff pleaded guilty to resisting, delaying, or obstructing a peace officer in 20 violation of California Penal Code § 148(a)(1).1 See ECF No. 7-2 at 9. “The legal elements 21 of that crime are as follows: (1) the defendant willfully resisted, delayed, or obstructed a 22 peace officer, (2) when the officer was engaged in the performance of his or her duties, and 23 (3) the defendant knew or reasonably should have known that the other person was a peace 24 officer engaged in the performance of his or her duties.” Yount v. City of Sacramento, 43 25 Cal. 4th 885, 894–95 (2008) (internal quotations omitted). “California courts have held 26

27 1 No subsection is indicated on Plaintiff’s guilty plea, but Plaintiff’s plea admits that he “did willfully 28 obstruct or delay a police officer in the performance of his official duty,” implying a violation of Penal 1 that an officer who uses excessive force is acting unlawfully and therefore is not engaged 2 in the performance of his or her duties.” Lemos, 40 F.4th at 1006. Accordingly, “the 3 ‘lawfulness of the officer’s conduct’ is necessarily established as a result of a conviction 4 under § 148(a)(1).” Sanders v. City of Pittsburg, 14 F.4th 968, 971 (9th Cir. 2021) (quoting 5 Hooper v. Cnty. of San Diego, 629 F.3d 1127, 1130 (9th Cir. 2011)). Stated differently, “a 6 defendant can’t be convicted under § 148(a)(1) if an officer used excessive force at the 7 time of the acts resulting in the conviction.” Id. 8 “It follows that Heck would bar [Plaintiff] from bringing an excessive-force claim 9 under section 1983 if that claim were based on force used during the conduct that was the 10 basis for [Plaintiff’s] section 148(a)(1) conviction.” Lemos, 40 F.4th at 1007; see also 11 Sanders, 14 F.4th at 970 (“To avoid what’s called the Heck bar on an excessive-force claim, 12 a plaintiff must not imply an officer acted unlawfully during the events that form the basis 13 of a resisting-arrest conviction under California Penal Code § 148(a).”). In that 14 circumstance, “[i]n order to prevail in this § 1983 action, he would have to negate an 15 element of the offense of which he has been convicted.” Heck, 512 U.S. at 487. As the 16 Ninth Circuit explained: 17 [A]n excessive force claim can’t survive the Heck bar if it’s predicated on allegedly unlawful actions by the officer at the 18 same time as the plaintiff’s conduct that resulted in his 19 § 148(a)(1) conviction. Such an allegation would undermine the validity of the § 148(a)(1) conviction. On the other hand, if the 20 alleged excessive force occurred before or after the acts that form 21 the basis of the § 148(a) violation, even if part of one continuous transaction, the § 1983 claim doesn’t necessarily imply the 22 invalidity of [a] criminal conviction under § 148(a)(1). 23 24 Sanders, 14 F.4th at 971 (internal quotations and citations omitted). 25 Defendants argue that “[b]ecause Plaintiff’s sole claim for excessive force 26 necessarily implicates the validity of his criminal conviction, the claim is barred pursuant 27 to Heck v. Humphrey, 512 U.S. 477 (1994).” Mem. at 2. Meanwhile, Plaintiff contends 28 that in this case “there was simply no factual basis from which the Court could determine 1 which acts formed the basis for the plea,” and therefore, “allowing this suit to proceed 2 would not necessarily imply the invalidity of the conviction.” Opp’n at 13 (emphasis 3 omitted). The Court agrees with Defendants. 4 Here, the allegations in Plaintiff’s Complaint “are not sufficient to show that his 5 excessive force claim is distinct from the incident that led to his conviction for resisting an 6 officer.” Price v. Galiu, 723 F. App’x 557 (9th Cir. 2018). According to Plaintiff’s 7 Complaint, as Plaintiff was lowering himself to the ground in compliance with Defendants’ 8 orders, Defendants “swarmed” him. Compl. ¶ 8. At that time, he “instinctively resisted,” 9 and Defendants’ threw him to the ground and his arm was wrenched behind him to subdue 10 him. Id. Plaintiff alleges that “the force applied to arrest/detain Plaintiff was in 11 contravention of constitutional and statutory duty, was in excess of any force required to 12 address the circumstances, was grossly out of proportion to any need for force, was not 13 employed in good faith, and was intended and substantially certain to cause serious bodily 14 injury.” Id. ¶ 17 (emphasis added). Thus, in Plaintiff’s own version of events, the 15 excessive force complained of was in reaction to and contemporaneous with Plaintiff’s 16 attempted resistance as he was being arrested. Id. Plaintiff’s Complaint is devoid of facts 17 that plausibly establish that Plaintiff’s claim arises from either an “isolated factual 18 context[]” within “one continuous chain of events,” Yount v. City of Sacramento, 43 Cal. 19 4th 885, 899 (2008), or that it is “temporally or spatially” distinct from the conduct that 20 resulted in his conviction for violating Penal Code § 148(a)(1), Price v. Galiu, No. 21 316CV00412BENPCL, 2017 WL 6371770, at *3 (S.D. Cal. Dec. 12, 2017) (quoting Smith 22 v. City of Hemet, 394 F.3d 689, 699 (9th Cir. 2005)), aff’d, 723 F. App’x 557 (9th Cir. 23 2018). 24 The record before the Court further undermines Plaintiff’s argument. As stated 25 above, courts must look at the record to establish which acts formed the basis of the guilty 26 plea in order to determine if the claim is barred by Heck. Here, neither Plaintiff’s charge 27 summary nor his guilty plea specifies which acts supported the charge or conviction. See 28 ECF No. 7-2 at 6, 9–11. The body-worn camera footage, however, demonstrates that 1 Plaintiff’s resistance and the force applied to subdue Plaintiff arose from the same factual 2 context. The footage shows two deputies enter Plaintiff’s home and immediately order 3 him to get on the ground. BWC 2:10–13. Within about five seconds, Plaintiff lowered 4 himself to one knee. Id. at 2:13–18. One of the deputies then grabbed Plaintiff’s arm to 5 arrest him, and Plaintiff “instinctively resisted” and moved his arm forward. Id. at 2:23– 6 24; Compl. ¶ 8. The deputy forced plaintiff to the ground and secured Plaintiff’s arms 7 behind his back while another deputy placed handcuffs on Defendant. BWC at 2:25–35. 8 Plaintiff continued to resist, and one of the arresting deputies twice instructed Plaintiff to 9 stop moving as he searched Plaintiff’s person. Id. at 2:45–55. The deputy then instructed 10 Plaintiff to roll over, at which point, Plaintiff became agitated, started yelling “Stop!”, then 11 told the deputy “What the f—k? I said stop!” and struggled with the deputy. Id. at 3:10– 12 22. The deputy again forced Plaintiff back to the ground. BWC 3:22–25. The deputy then 13 tried a second time to get Plaintiff to stand up. BWC 3:30–40. Plaintiff continued to tell 14 the deputy to stop, and then yelled “What the f—k?!,” at which point he was forced to the 15 ground for a third time and deputies prepared to place him in a maximum restraint device. 16 BWC 3:40–4:05. Only then did Plaintiff cease resisting the deputies’ instructions. 17 Less than two minutes elapsed between the deputies entering Plaintiff’s home and 18 the deputies’ decision to place him in a maximum restraint device. See BWC at 2:10–4:05. 19 During this period, Plaintiff continuously resisted the deputies’ orders. See id. Moreover, 20 less than ten seconds elapsed between Plaintiff’s “instinctive[] resist[ance]” and the use of 21 force complained of by Plaintiff. See id. at 2:25–2:35. Due to the close relationship 22 between Plaintiff’s resistance and the deputies’ efforts to subdue Plaintiff, the Court cannot 23 reasonably separate the two acts into isolated factual contexts. See Cunningham v. Gates, 24 312 F.3d 1148, 1155 (9th Cir. 2002) (finding that because there was “no break” between 25 plaintiff shooting at officers and the officers’ response, the actions were “so closely 26 interrelated” that the plaintiff’s conviction foreclosed his excessive force claim against the 27 officers); see also Fetters v. Cnty. of Los Angeles, 243 Cal. App. 4th 825, 840 (2016) 28 (applying Heck bar where “pars[ing] the relevant facts . . . into two separate and distinct 1 incidents . . . would be to engage in the kind of ‘temporal hair-splitting’ that California and 2 other courts correctly refuse to perform”). 3 Plaintiff argues that because the plea form does not specify the factual basis 4 supporting the conviction, “there was simply no factual basis from which the Court could 5 determine which acts formed the basis for the plea”; therefore, allowing this suit to proceed 6 would not necessarily imply the invalidity of the conviction. Opp’n at 13. Plaintiff 7 speculates the guilty plea could have been based on any number of actions: Plaintiff’s 8 “initial refusal to get on the ground,” his “refusal to get on the ground after he [got] to his 9 knees,” “flexing his arms,” “stiffening up during efforts to roll him over,” or his demands 10 that the deputies “stop.” Id. Plaintiff, however, cites to no authority, and the Court is not 11 aware of any, holding that the Heck bar cannot apply to a guilty plea that does not specify 12 the individual acts that formed the basis for a conviction. 13 Moreover, as the Court has already discussed, Plaintiff’s crime and Defendants’ 14 actions were part of a single act. Reducing each of Plaintiff’s actions into discrete episodes 15 would render the Heck bar utterly toothless. In essence, Plaintiff would have the Court 16 treat each step taken by a fleeing defendant as an independent basis for a Penal Code 17 § 148(a)(1) conviction; unless a later guilty plea specified which step constituted the 18 violation, the Heck bar could not apply under Plaintiff’s theory. Neither Heck nor Ninth 19 Circuit precedent demands such a result. Indeed, the Ninth Circuit has already rejected 20 such arguments, holding that courts may not “slice up the factual basis of a § 148(a)(1) 21 conviction to avoid the Heck bar.” Sanders v. City of Pittsburg, 14 F.4th 968, 972 (9th Cir. 22 2021) (emphasis omitted). The California Supreme Court has held similarly. See Yount, 23 43 Cal. 4th at 896 (“[A]ny civil rights claim that is inconsistent with even a portion of [the 24 plaintiff’s] conviction is barred because it would necessarily imply the invalidity of that 25 part of the conviction. Otherwise, a section 1983 plaintiff could routinely circumvent the 26 Heck bar through artful pleading.” (internal citation omitted)). 27 / / / 28 / / / 1 Plaintiff cites to several cases to support his argument that Heck is not a bar to his 2 claim because the guilty plea does not specify which of his actions formed the basis of his 3 conviction. Each of those cases, however, is distinguishable. 4 In Lemos v. County of Sonoma, a sheriff’s deputy, Holton, attempted to question a 5 woman inside a pickup truck, but she and three other relatives began yelling at him. 40 6 F.4th at 1003–04. Deputy Holton opened the door to the pickup truck to see if the woman 7 was injured, at which point the woman’s sister, Lemos, stepped between him and the door, 8 pointed her finger at him, and shouted “You’re not allowed to do that!” Id. at 1004. Holton 9 told Lemos to step back and pushed her hand away. Id. The four women and the deputy 10 then argued for several minutes as the deputy waited on backup. Id. “[S]ome five minutes 11 after the initial encounter at the truck door,” Lemos’s mother told her to go inside the home. 12 Id. As she began to do so, the deputy told her to stop. Id. She ignored his orders, and 13 when Holton grabbed her arm to place her in handcuffs, she pulled away. Id. The deputy 14 then tackled her and placed her under arrest. Id. She was charged with resisting arrest, 15 and following her conviction by a jury verdict, brought a § 1983 claim for excessive force. 16 Id. at 1003–05. 17 The jury was instructed that it could find Lemos guilty based on any one of four acts: 18 “making physical contact with Holton at the door to the truck; placing herself between 19 Holton and [the woman in the truck]; blocking Holton from opening the truck door; and 20 pulling away from Holton when he attempted to grab her.” Id. at 1007. The Ninth Circuit, 21 however, clearly indicated that there were only two relevant factual contexts: 22 Under the instructions, an officer could have been lawfully performing his duties at time A even if, at some later time B, he 23 used excessive force. So if the jury found that Lemos resisted 24 Holton at the truck and that Holton was acting lawfully at the time, it should have found her guilty, even if it also believed that 25 Holton used excessive force when he tackled her five minutes 26 later. Lemos’s success in the section 1983 action thus would not necessarily contradict the verdict. 27 28 / / / 1 Id. at 1007. In other words, while the jury was given four independent bases for issuing a 2 guilty verdict, three of those bases related to one distinct event (the encounter outside the 3 pickup truck) and the final basis related to another distinct event (Lemos pulling away her 4 hand as she walked to the house and Holton’s act of tackling her). The Ninth Circuit did 5 not attempt to argue that Lemos’s actions outside the pickup truck constituted three 6 different factual contexts; nor did it argue that Lemos’s act of pulling away and Holton’s 7 tackle constituted different factual contexts. Doing so would wrongly “slice up the factual 8 basis” of the conviction. See Sanders, 14 F.4th at 972. Rather, the Ninth Circuit isolated 9 two instances of resistance because they occurred at least five minutes apart and in different 10 locations. 11 Ultimately, the Ninth Circuit concluded that if Lemos were to prevail in her civil 12 action, it would not “necessarily” mean her conviction was invalid because the jury did not 13 specify which of Lemos’s acts formed the basis of her conviction. Thus, “[t]here would be 14 no contradiction in concluding . . . that Lemos obstructed Holton during the lawful 15 performance of his duties by, say, blocking him from opening the truck door while also 16 concluding . . . that Holton used excessive force when he tackled her five minutes later.” 17 Lemos, 40 F.4th at 1007. Therefore, Heck did not bar the action. Id. at 1007. Such 18 reasoning, however, relies on the isolation of at least two factual contexts within a chain of 19 events. Here, unlike in Lemos, there is only one factual context: the deputies’ attempt to 20 subdue and arrest Plaintiff over the course of approximately two minutes inside Plaintiff’s 21 apartment. Accordingly, here, there would be a contradiction in concluding, on the one 22 hand, that Plaintiff obstructed Defendants during the lawful performance of their duties 23 while also concluding, on the other hand, that Defendants used excessive force during 24 Plaintiff’s arrest. 25 Yount v. City of Sacramento involved a § 1983 claim by a plaintiff who was shot 26 after he was arrested. 43 Cal. 4th 885. The plaintiff, Yount, initially resisted arrest and 27 was eventually detained inside a patrol car. Id. at 889–90. As police officers attempted to 28 investigate Yount’s suspected drunken driving, Yount kicked the windows inside the patrol 1 car, and when he refused to calm down, one of the officers tased him. Id. at 890. Yount 2 became more violent, eventually kicking out a window of the patrol car. Id. The officers 3 tried to immobilize him, but once they pulled him out of the car, Yount assaulted an officer. 4 Id. As Yount continued to resist, an officer, intending to tase Yount again, accidentally 5 shot him. Id. at 890–91. According to the officers, about thirty minutes elapsed between 6 the initial contact with Yount and the shooting. See Appellant’s Opening Brief at 19–20, 7 Yount v. City of Sacramento, 35 Cal. Rptr. 3d 563, 564 (Ct. App. 2005) (No. C046869). 8 The court in Yount found “two isolated factual contexts” under this set of facts, “the 9 first giving rise to criminal liability on the part of the criminal defendant, and the second 10 giving rise to civil liability on the part of the arresting officer.” Yount, 43 Cal. 4th at 899. 11 The court explained that “‘[t]he subsequent use of excessive force would not negate the 12 lawfulness of the initial arrest attempt, or negate the unlawfulness of the criminal 13 defendant’s attempt to resist it.’” Id. (quoting Jones v. Marcum, 197 F. Supp. 2d 991, 1005 14 n.9 (S.D. Ohio 2002)) (emphasis added). In Yount, it was easy for the Court to separate 15 Yount’s resistance on the one hand, and the use of deadly force on the other. Here, on the 16 other hand, the force used on Plaintiff and Plaintiff’s resistance are inseparable, sharing the 17 same temporal and spatial dimensions. 18 Likewise, in the final two cases cited by Plaintiff, the Ninth Circuit could easily 19 distinguish between two factual contexts. In Smith v. City of Hemet, the Ninth Circuit 20 noted that the plaintiff, Smith, obstructed officers in the course of their duties twice: first 21 as they performed their “investigative” duties, and later “at the time of the arrest” when the 22 excessive force was used against him. See 394 F.3d at 698; see also Hooper v. Cnty. of 23 San Diego, 629 F.3d 1127, 1131 (9th Cir. 2011) (“The facts of Smith allowed us to 24 differentiate cleanly between two phases of the encounter with the police.”). Here, unlike 25 in Smith, there was no investigative phase and arrest phase. There was only the arrest 26 phase. Similarly, in Hooper v. County of San Diego, the Court held that “a conviction 27 under California Penal Code § 148(a)(1) does not bar a § 1983 claim for excessive force 28 under Heck when the conviction and the § 1983 claim are based on different actions during 1 ‘one continuous transaction.’” 629 F.3d at 1134 (emphasis added). There, the plaintiff 2 resisted arrest for possession of methamphetamine by jerking her hand away from a deputy. 3 Id. at 1129. The deputy pinned her to the ground, and the plaintiff ceased resisting. Id. 4 After she had stopped resisting, the deputy called his K-9 dog, which then attacked plaintiff 5 and bit her head. Id. While the episode in Hooper only lasted 45 seconds, id., the Court 6 identified two different relevant actions: the plaintiff’s initial resistance, and the K-9 attack 7 after the plaintiff had stopped resisting. See id. at 1133–34. As the Ninth Circuit later 8 described, in Hooper, “there was a clear delineation between lawful and unlawful police 9 action.” Sanders, 14 F.4th at 971. “Hooper merely holds that Heck presents no bar to an 10 excessive force claim when an officer’s allegedly unlawful action can be separated from 11 the lawful actions that formed the basis of the § 148(a)(1) conviction, even if they occurred 12 during one continuous transaction.” Id. at 972. In this case, any unlawful action by the 13 deputies cannot be separated from lawful action without “slic[ing] up” the facts in a manner 14 that would undermine Heck’s purpose of ensuring “finality and consistency” between 15 criminal and civil judgments. See Heck, 512 U.S. at 484–86; supra pp. 9–10. 16 In each of the aforementioned cases, the alleged excessive force occurred after an 17 act of resistance, and courts could isolate the former from the latter without engaging in 18 the type of “temporal hair-splitting” upon which the Ninth Circuit and the California courts 19 frown. Conversely, according to Plaintiff’s Complaint and the record before the Court, the 20 alleged excessive force in this case occurred simultaneously with the conduct that formed 21 the basis for Plaintiff’s conviction. Therefore, allowing Plaintiff’s § 1983 claim to proceed 22 would “necessarily imply the invalidity of his conviction or sentence.” Heck, 512 U.S. at 23 487. Moreover, Plaintiff has not alleged that his conviction has been reversed, expunged, 24 called into question by issuance of a writ of habeas corpus, or otherwise invalidated. Heck, 25 512 U.S. at 486–87. Consequently, Heck bars Plaintiff’s § 1983 claim. 26 / / / 27 / / / 28 / / / 1 LEAVE TO AMEND 2 Plaintiff requests leave to amend the Complaint if the Court finds any pleading 3 || deficiency. Federal Rule of Civil Procedure 15 states that courts “should freely give leave 4 ||[to amend] when justice so requires.” Moreover, “[t]he Ninth Circuit has instructed that 5 || the policy favoring amendments ‘is to be applied with extreme liberality.’” Abels v. JBC 6 || Legal Grp., P.C., 229 F.R.D. 152, 155 (N.D. Cal. 2005) (quoting Morongo Band of Mission 7 || Indians v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990)). “But a district court need not grant 8 || leave to amend where the amendment: (1) prejudices the opposing party; (2) is sought in 9 faith; (3) produces an undue delay in litigation; or (4) is futile.” AmerisourceBergen 10 || Corp. v. Dialysist W., Inc., 465 F.3d 946, 951 (9th Cir. 2006). Ifa plaintiff's § 1983 claims 11 |/are barred by Heck, “filing an amended complaint would be a futile act.” Beets v. Cnty. of 12 || Los Angeles, 669 F.3d 1038, 1041-42 (9th Cir. 2012), disapproved of on other grounds, 13 ||by Lemos, 40 F.4th 1002. Here, the Court finds that Plaintiff's claims are barred by Heck. 14 || Amending the Complaint in this instance would be futile, as the body-worn camera footage 15 ||submitted by Plaintiff would inevitably lead the Court to the same conclusion upon 16 consideration of any amended claims. Accordingly, the Court denies Plaintiffs request for 17 || leave to amend the Complaint. 18 CONCLUSION 19 In light of the foregoing, the Court GRANTS IN PART and DENIES IN PART 20 || Defendants’ Request for Judicial Notice (ECF No. 7-2), GRANTS Defendants’ Motion to 21 || Dismiss (ECF No. 7), and DISMISSES WITH PREJUDICE Plaintiff's Complaint (ECF 22 ||No. 1). As this Order concludes the litigation in this matter, the Clerk of the Court SHALL 23 || CLOSE the file. 24 IT IS SO ORDERED. 25 || Dated: January 9, 2023 he it. Jt, ike 26 on. Janis L. Sammartino 07 United States District Judge 28