1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 JOSHUA DAVIS BLAND, No. 2:20-cv-0051 DAD DB P 11 Plaintiff, 12 v. FINDINGS AND RECOMMENDATIONS 13 JON A. MESSINGER, et al., 14 Defendants. 15 16 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 17 U.S.C. § 1983. Plaintiff claims defendants used excessive force against him in violation of his 18 rights under the Eighth Amendment during an incident that occurred on January 21, 2018. 19 Neither party filed a dispositive motion prior to the deadline. In response to a show cause 20 order, defendants indicated that plaintiff’s excessive force claim was barred by Heck v. 21 Humphrey, 512 U.S. 477, 486-87 (1994) (holding a prisoner may not pursue a § 1983 action to 22 recover damages for “harm caused by actions whose unlawfulness would render [his] conviction 23 or sentence invalid” unless the conviction has been overturned, expunged, declared invalid, or 24 otherwise called into question via issuance of a writ of habeas corpus by a federal court), based 25 on plaintiff’s state court conviction for battery based on the same January 21, 2018 incident that is 26 the basis for plaintiff’s excessive force claim. (ECF No. 39.) Thereafter, the undersigned 27 directed the parties to submit supplemental briefing on whether the Supreme Court’s decision in 28 Heck serves as a jurisdictional bar preventing this court from addressing the merits of plaintiff’s 1 claim. (ECF No. 44.) Upon review of the parties’ briefs, and for the reasons set forth below, the 2 undersigned has determined that Heck does not bar plaintiff’s claim, and will therefore 3 recommend that this matter proceed to trial. 4 I. Procedural History 5 Plaintiff initiated this action by filing the original complaint which was docketed on 6 January 6, 2020. (ECF No. 1.) The undersigned screened and dismissed the original complaint 7 for failure to state a claim. (ECF No. 11.) Plaintiff filed a first amended complaint. (ECF No. 8 14.) Upon screening, the undersigned determined the amended complaint stated a cognizable 9 excessive force claim against defendants Mossinger, Gill, Savage, Goforth, Lewis, and Andujo. 10 (ECF No. 15 at 5.) The undersigned further determined that the complaint did not contain any 11 additional cognizable claims. (Id. at 4-5.) Plaintiff was given the option to proceed immediately 12 with his excessive force claim or file an amended complaint. (Id. at 5, 7.) Plaintiff elected to 13 proceed immediately, voluntarily dismissing all other claims. (ECF No. 16.) 14 Defendants were served (ECF No. 22), and this action was referred to the court’s post- 15 screening ADR (Alternative Dispute Resolution) Project (ECF No. 23). Defendants moved to opt 16 out of the ADR Project. (ECF No. 24.) The motion was granted, and defendants were directed to 17 file an answer. (ECF No. 25.) Defendants filed an answer (ECF No. 27), and the undersigned 18 issued a discovery and scheduling order (“DSO”) (ECF No. 28). Pursuant to the deadlines set 19 forth in the DSO, discovery was to be completed by July 30, 2021, and dispositive motions were 20 to be filed on or before October 22, 2021. (ECF No. 28 at 6.) 21 Neither party filed a motion for summary judgment nor requested additional time to file a 22 motion for summary judgment before October 22, 2021. Several months after expiration of the 23 dispositive motion deadline, the undersigned issued a show cause order directing the parties to 24 show cause why this action should not be set for trial. (ECF No. 39.) Defendants filed a response 25 requesting additional time to file a motion for judgment on the pleadings because plaintiff’s claim 26 is barred by Heck. (ECF No. 39.) Plaintiff filed an objection to the response indicating he was 27 opposed to allowing defendants another opportunity to request dismissal. (ECF No. 41.) 28 //// 1 The undersigned denied defendants’ request for additional time to file a motion for 2 judgment on the pleadings because they failed to show good cause sufficient to warrant 3 modification of the dispositive motion deadline. (ECF No. 42.) However, in light of the issue 4 raised in defendants’ response to the show cause order, the undersigned directed the parties to file 5 briefing on whether Heck is a jurisdictional bar to adjudication of the merits of plaintiff’s claim. 6 (ECF No. 44.) Defendants filed a response addressing the issue. (ECF No. 46.) Plaintiff filed a 7 motion for stay, which was denied. (ECF Nos. 50, 54.) 8 II. Allegations in the Amended Complaint 9 Plaintiff alleges that on January 21, 2018, correctional officer Mossinger kicked his cell 10 door and yelled for him to wake up to take his medication. (ECF No. 14 at 5.) Plaintiff told 11 Mossinger he did not need the medication because it was only Tylenol. Plaintiff further alleges 12 that Mossinger snuck into the cell, when plaintiff realized Mossinger was in the cell he began to 13 panic and blacked out. (Id.) When plaintiff woke up he had been pulled from his bed, dragged to 14 the door, and officers Gill and Savage were on top of him strangling him with their radio cords. 15 (Id.) He further states that officers Mossinger and Goforth were kicking him in the ribs, offices 16 Lewis was hitting him on the side of his head with a metal baton, and officers Andjuo was 17 standing on his ankles. (Id.) 18 III. Defendants’ Response 19 In their response, defendants argue that plaintiff’s “excessive force claim and criminal 20 conviction arise out of the same January 21, 2018 incident; are not divisible from one another; 21 and directly and irreconcilably conflict.” (ECF No. 46 at 6.) Thus, if plaintiff were to succeed on 22 his excessive force claim, it would necessarily imply the invalidity of his criminal conviction. 23 Accordingly, they argue that plaintiff’s claim is barred and should be dismissed. 24 Exhibits filed along with defendants’ response indicates that plaintiff plead guilty to 25 violation of California Penal Code § 4501.5, battery on a nonconfined person by a prisoner, and 26 admitted a prior strike allegation. (ECF No. 46-1 at 24.) Plaintiff was also found guilty of a rules 27 violation report (“RVR”). (ECF No. 46-3 at 21.) The facts supporting the guilty finding indicate 28 that after refusing his medication, plaintiff ran toward the door while officers Mossinger and 1 Andujo were exiting plaintiff’s cell. (Id. at 18.) The RVR further states that plaintiff failed to 2 comply with orders, continued to attempt to exit the cell, and used his walker as a weapon to 3 strike Mossinger on his shoulder. (Id.) Officer Lewis used a baton to strike plaintiff before and 4 after plaintiff struck Mossinger with his walker. (Id.) Officers ultimately put plaintiff on the 5 ground and restrained him. (Id.) 6 IV. Legal Standards 7 The United States Supreme Court held in Heck v. Humphrey, 512 U.S. 477 (1994) that a 8 plaintiff may not prevail on a § 1983 claim if doing so “would necessarily imply the invalidity” of 9 plaintiff's conviction arising out of the same underlying facts as those at issue in the civil action 10 “unless the plaintiff can demonstrate that the conviction or sentence has already been 11 invalidated.” Id. at 487. Thus, “Heck says that ‘if a criminal conviction arising out of the same 12 facts stands and is fundamentally inconsistent with the unlawful behavior for which section 1983 13 damages are sought, the 1983 action must be dismissed.’” Smith v. City of Hemet, 394 F.3d 689, 14 695 (9th Cir. 2005) (quoting Smithart v.
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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 FOR THE EASTERN DISTRICT OF CALIFORNIA 9 10 JOSHUA DAVIS BLAND, No. 2:20-cv-0051 DAD DB P 11 Plaintiff, 12 v. FINDINGS AND RECOMMENDATIONS 13 JON A. MESSINGER, et al., 14 Defendants. 15 16 Plaintiff is a state prisoner proceeding pro se with a civil rights action pursuant to 42 17 U.S.C. § 1983. Plaintiff claims defendants used excessive force against him in violation of his 18 rights under the Eighth Amendment during an incident that occurred on January 21, 2018. 19 Neither party filed a dispositive motion prior to the deadline. In response to a show cause 20 order, defendants indicated that plaintiff’s excessive force claim was barred by Heck v. 21 Humphrey, 512 U.S. 477, 486-87 (1994) (holding a prisoner may not pursue a § 1983 action to 22 recover damages for “harm caused by actions whose unlawfulness would render [his] conviction 23 or sentence invalid” unless the conviction has been overturned, expunged, declared invalid, or 24 otherwise called into question via issuance of a writ of habeas corpus by a federal court), based 25 on plaintiff’s state court conviction for battery based on the same January 21, 2018 incident that is 26 the basis for plaintiff’s excessive force claim. (ECF No. 39.) Thereafter, the undersigned 27 directed the parties to submit supplemental briefing on whether the Supreme Court’s decision in 28 Heck serves as a jurisdictional bar preventing this court from addressing the merits of plaintiff’s 1 claim. (ECF No. 44.) Upon review of the parties’ briefs, and for the reasons set forth below, the 2 undersigned has determined that Heck does not bar plaintiff’s claim, and will therefore 3 recommend that this matter proceed to trial. 4 I. Procedural History 5 Plaintiff initiated this action by filing the original complaint which was docketed on 6 January 6, 2020. (ECF No. 1.) The undersigned screened and dismissed the original complaint 7 for failure to state a claim. (ECF No. 11.) Plaintiff filed a first amended complaint. (ECF No. 8 14.) Upon screening, the undersigned determined the amended complaint stated a cognizable 9 excessive force claim against defendants Mossinger, Gill, Savage, Goforth, Lewis, and Andujo. 10 (ECF No. 15 at 5.) The undersigned further determined that the complaint did not contain any 11 additional cognizable claims. (Id. at 4-5.) Plaintiff was given the option to proceed immediately 12 with his excessive force claim or file an amended complaint. (Id. at 5, 7.) Plaintiff elected to 13 proceed immediately, voluntarily dismissing all other claims. (ECF No. 16.) 14 Defendants were served (ECF No. 22), and this action was referred to the court’s post- 15 screening ADR (Alternative Dispute Resolution) Project (ECF No. 23). Defendants moved to opt 16 out of the ADR Project. (ECF No. 24.) The motion was granted, and defendants were directed to 17 file an answer. (ECF No. 25.) Defendants filed an answer (ECF No. 27), and the undersigned 18 issued a discovery and scheduling order (“DSO”) (ECF No. 28). Pursuant to the deadlines set 19 forth in the DSO, discovery was to be completed by July 30, 2021, and dispositive motions were 20 to be filed on or before October 22, 2021. (ECF No. 28 at 6.) 21 Neither party filed a motion for summary judgment nor requested additional time to file a 22 motion for summary judgment before October 22, 2021. Several months after expiration of the 23 dispositive motion deadline, the undersigned issued a show cause order directing the parties to 24 show cause why this action should not be set for trial. (ECF No. 39.) Defendants filed a response 25 requesting additional time to file a motion for judgment on the pleadings because plaintiff’s claim 26 is barred by Heck. (ECF No. 39.) Plaintiff filed an objection to the response indicating he was 27 opposed to allowing defendants another opportunity to request dismissal. (ECF No. 41.) 28 //// 1 The undersigned denied defendants’ request for additional time to file a motion for 2 judgment on the pleadings because they failed to show good cause sufficient to warrant 3 modification of the dispositive motion deadline. (ECF No. 42.) However, in light of the issue 4 raised in defendants’ response to the show cause order, the undersigned directed the parties to file 5 briefing on whether Heck is a jurisdictional bar to adjudication of the merits of plaintiff’s claim. 6 (ECF No. 44.) Defendants filed a response addressing the issue. (ECF No. 46.) Plaintiff filed a 7 motion for stay, which was denied. (ECF Nos. 50, 54.) 8 II. Allegations in the Amended Complaint 9 Plaintiff alleges that on January 21, 2018, correctional officer Mossinger kicked his cell 10 door and yelled for him to wake up to take his medication. (ECF No. 14 at 5.) Plaintiff told 11 Mossinger he did not need the medication because it was only Tylenol. Plaintiff further alleges 12 that Mossinger snuck into the cell, when plaintiff realized Mossinger was in the cell he began to 13 panic and blacked out. (Id.) When plaintiff woke up he had been pulled from his bed, dragged to 14 the door, and officers Gill and Savage were on top of him strangling him with their radio cords. 15 (Id.) He further states that officers Mossinger and Goforth were kicking him in the ribs, offices 16 Lewis was hitting him on the side of his head with a metal baton, and officers Andjuo was 17 standing on his ankles. (Id.) 18 III. Defendants’ Response 19 In their response, defendants argue that plaintiff’s “excessive force claim and criminal 20 conviction arise out of the same January 21, 2018 incident; are not divisible from one another; 21 and directly and irreconcilably conflict.” (ECF No. 46 at 6.) Thus, if plaintiff were to succeed on 22 his excessive force claim, it would necessarily imply the invalidity of his criminal conviction. 23 Accordingly, they argue that plaintiff’s claim is barred and should be dismissed. 24 Exhibits filed along with defendants’ response indicates that plaintiff plead guilty to 25 violation of California Penal Code § 4501.5, battery on a nonconfined person by a prisoner, and 26 admitted a prior strike allegation. (ECF No. 46-1 at 24.) Plaintiff was also found guilty of a rules 27 violation report (“RVR”). (ECF No. 46-3 at 21.) The facts supporting the guilty finding indicate 28 that after refusing his medication, plaintiff ran toward the door while officers Mossinger and 1 Andujo were exiting plaintiff’s cell. (Id. at 18.) The RVR further states that plaintiff failed to 2 comply with orders, continued to attempt to exit the cell, and used his walker as a weapon to 3 strike Mossinger on his shoulder. (Id.) Officer Lewis used a baton to strike plaintiff before and 4 after plaintiff struck Mossinger with his walker. (Id.) Officers ultimately put plaintiff on the 5 ground and restrained him. (Id.) 6 IV. Legal Standards 7 The United States Supreme Court held in Heck v. Humphrey, 512 U.S. 477 (1994) that a 8 plaintiff may not prevail on a § 1983 claim if doing so “would necessarily imply the invalidity” of 9 plaintiff's conviction arising out of the same underlying facts as those at issue in the civil action 10 “unless the plaintiff can demonstrate that the conviction or sentence has already been 11 invalidated.” Id. at 487. Thus, “Heck says that ‘if a criminal conviction arising out of the same 12 facts stands and is fundamentally inconsistent with the unlawful behavior for which section 1983 13 damages are sought, the 1983 action must be dismissed.’” Smith v. City of Hemet, 394 F.3d 689, 14 695 (9th Cir. 2005) (quoting Smithart v. Towery, 79 F.3d 951, 952 (9th Cir. 1996)). 15 “Consequently, ‘the relevant question is whether success in a subsequent § 1983 suit would 16 ‘necessarily imply’ or ‘demonstrate’ the invalidity of the earlier conviction or sentence....” Beets 17 v. County of Los Angeles, 669 F.3d 1038, 1042 (9th Cir. 2012) (quoting Smithart, 79 F.3d at 18 951). It is the defendant's burden to show that a plaintiff's claim is barred by Heck. See Sanford 19 v. Motts, 258 F.3d 1117, 1119 (9th Cir. 2001). 20 “To decide whether success on a section 1983 claim would necessarily imply the 21 invalidity of a conviction, we must determine which acts formed the basis for the conviction.” 22 Lemos v. County of Sonoma, 40 F.4th 1002, 1006 (9th Cir. 2022) (emphasis in original). “When 23 the conviction is based on a guilty plea, we look at the record to see which acts formed the basis 24 for the plea.” Id. (citing Smith v. City of Hemet, 394 F.3d 689, 696-97 (9th Cir. 2005) (en banc) 25 and Sanford v. Motts, 258 F.3d 1117, 1119-20 (9th Cir. 2001)). 26 V. Is Plaintiff’s Claim Heck Barred? 27 Defendants argue that plaintiff’s claim is Heck barred and should be dismissed. The 28 undersigned will recommend that this action proceed to trial because (1) the Ninth Circuit has 1 indicated that Heck is not jurisdictional and (2) it is possible that excessive force was used before 2 or after the conduct that led to plaintiff’s conviction for battery on a nonconfined person by a 3 prisoner. 4 A. Ninth Circuit Guidance Indicates Heck is not Jurisdictional 5 Neither party’s response to the show cause order directly discusses whether Heck is a 6 jurisdictional barrier to adjudication of the merits of plaintiff’s claims. 7 “[T]he Heck decision contains no jurisdictional language.” Vuyanich v. Smithton 8 Borough, 5 F.4th 379, 389 (3d Cir. 2021). “The First and Eleventh Circuits have described 9 Heck’s favorable termination requirement as both ‘jurisdictional’ and as an ‘element’ of a claim 10 for damages arising from a conviction or sentence under § 1983.” Garrett v. Murphy, 17 F.4th 11 419, 427 (3d Cir. 2021). The Seventh Circuit characterized Heck’s favorable-termination 12 requirement as an affirmative defense subject to “waiver,” analogous to an exhaustion 13 requirement. Polzin v. Gage, 636 F.3d 834, 838 (7th Cir. 2011). 14 While discussing whether cases dismissed pursuant to Heck “categorically count as 15 dismissals for failure to state a claim,” the Ninth Circuit stated that “compliance with Heck most 16 closely resembles the mandatory administrative exhaustion of PLRA claims, which constitutes an 17 affirmative defense and not a pleading requirement.” Washington v. Los Angeles Cnty. Sheriff’s 18 Dept., 833 F.3d 1048, 1056 (9th Cir. 2016). In light of such guidance, the undersigned declines 19 to find that it is without jurisdiction due to plaintiff’s state court conviction or that the Heck bar is 20 not subject to waiver. Accordingly, Heck does not serve as a jurisdictional bar preventing this 21 court from addressing the merits of plaintiff’s claim. Jiron v. City of Lakewood, 392 F.3d 410, 22 413 n.1 (10th Cir. 2004) (noting Heck is not jurisdiction and addressing the merits of claim 23 plaintiff conceded was Heck barred). 24 B. Heck does not Necessarily Bar Plaintiff’s Claim 25 Defendants argue that plaintiff’s excessive force claim and criminal conviction for 26 violation of California Penal Code § 4501.5 arise out of the same incident, are not divisible, and 27 irreconcilably conflict. (ECF No. 46 at 6.) Defendants have also included the results of the RVR 28 finding plaintiff guilty of battery. (ECF No. 46-3.) 1 Plaintiff pled guilty to battery of a nonconfined person by a prisoner in the Lassen County 2 Superior Court. (ECF No. 46-1 at 24.) During the plea hearing, the parties stipulated that “on or 3 about January 21, 2018, [plaintiff] violated California Penal Code Section 4501.5 as a felony in 4 the State of California, battery on a non-confined person by a prisoner.” (ECF No. 46-1 at 52.) 5 The complaint alleged that plaintiff “unlawfully, while confined in California State Prison, 6 commit a battery upon a non-confined person. (ECF No. 46-1 at 11.) 7 It is possible that officers used excessive force before the actions that resulted in the guilty 8 finding or that officers used excessive force in response to plaintiff’s actions. See Stevenson v. 9 Holland, No. 1:16-cv-1831 AWI JLT, 2020 WL 264422, at *15 (E.D. Cal. Jan. 17, 2020) 10 (Plaintiff was found guilty of “Battery on a Peace Officer with Serious Injury” but court declined 11 to find that plaintiff’s excessive force claim was Heck barred because “even if Plaintiff battered 12 [defendant] by shouldering and kicking him and fractured [defendant’s] hand, Plaintiff can 13 advance the cognizable legal theory that the force applied by the prison officers in response was 14 excessive and unnecessary and applied maliciously and sadistically for the purpose of causing 15 harm to Plaintiff”); Mann v. Garcia, No. 1:21-cv-0764 AWI EPG (PC), 2022 WL 412013, at *4 16 (E.D. Cal.) (“Correctional officers may be liable for excessive force against an inmate who 17 commits battery . . . .”). 18 That plaintiff was found guilty of violating prison rules also does not foreclose his ability 19 to pursue an excessive force claim. Puckett v. Zamora, No. 1:12-cv0948 DLB PC, 2015 WL 20 757330, at *4 (E.D. Cal. Feb. 23, 2015) (finding plaintiff’s excessive force claims were not Heck 21 barred due to RVR “because the guilty finding concerned only the initial takedown and the 22 necessity of the force used by [the defendant] in responding to Plaintiff’s provocation.”); Stallling 23 v. Stinson, No. 2:20-cv-1180 JAM JDP (PC), 2021 WL 3630470, at *3 (E.D. Cal. Aug. 17, 2021) 24 (finding plaintiff’s excessive force claim was not Heck barred because the court found the RVR 25 guilty finding was not inconsistent with the allegations in plaintiff’s complaint). 26 Here, the account of the events in the RVR indicate that officers used force after plaintiff 27 failed to comply with orders and attempted to exit his cell. (ECF No. 46-3 at 18.) When plaintiff 28 failed to comply, officers used force in an attempt to subdue plaintiff. (Id.) Plaintiff then used his 1 walker to strike officer Mossinger. Officers continued to attempt to subdue plaintiff with 2 negative results. Officer Goforth pushed plaintiff back into his cell, put plaintiff in a prone 3 position, and restrained him. (Id.) 4 In the operative complaint, plaintiff alleged that on January 21, 2018, officer Mossinger 5 kicked his cell door and yelled for him to wake up and take his medication. (ECF No. 14 at 5.) 6 Plaintiff told Mossinger he did not need the medication because it was only Tylenol. Mossinger 7 snuck into the cell and pointed to a letter plaintiff was trying to write. When plaintiff realized 8 Mossinger was in his cell he began to panic and blacked out. (Id.) When he woke up he had been 9 pulled out of bed and dragged to the door where officers Gill and Savage were on top of him 10 strangling him with their radio cords. He further alleges that officers Mossinger and Goforth 11 were kicking him in the ribs, officer Lewis was hitting him on the side of his head with a metal 12 baton, and officer Andujo was standing on his ankles. (Id.) 13 Comparison of the two accounts do not foreclose the possibility that officers used more 14 force than necessary following plaintiff’s conduct that led to both the RVR guilty finding and 15 state court conviction. See Lemos v. County of Sonoma, 40 F.4th 1002, 1008 (9th Cir. 2022) 16 (“Even though the civil action and the criminal conviction both arose from ‘one continuous chain 17 of events, two isolated factual contexts would exist, the first giving rise to criminal liability on the 18 part of the criminal defendant, and the second giving rise to civil liability on the part of the 19 arresting officer.’”) (citations omitted); Geray v. Morrison, No. 20-cv-02580-JST, 2020 WL 20 9066041, at *2 (N.D. Cal. Sept. 24, 2020) (“Heck does not apply to bar claims arising out of 21 conduct that occurred before or after the specific conduct underlying the criminal charge.”); 22 Mann v. Garcia, 1:21-cv-0764 AWI EPG (PC), 2022 WL 412013, at *4 (E.D. Cal. Feb. 10, 2022) 23 (“[B]attery charges against Plaintiff concern whether Plaintiff committed certain acts of battery 24 against correctional officers . . . . Correctional officers may be liable for excessive force against 25 an inmate who commits battery against correctional officers.”). 26 Accordingly, the undersigned finds that Heck is not absolute bar to plaintiff’s excessive 27 force claim. 28 //// 1 CONCLUSION 2 For the reasons set forth above, IT IS HEREBY RECOMMENDED that this action 3 | proceed to trial. 4 These findings and recommendations are submitted to the United States District Judge 5 | assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-eight 6 | (28) days after being served with these findings and recommendations, any party may file written 7 | objections with the court and serve a copy on all parties. Such a document should be captioned 8 | “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the 9 | objections shall be served and filed within fourteen (14) days after service of the objections. The 10 | parties are advised that failure to file objections within the specified time may waive the right to 11 | appeal the District Court’s order. Martinez v. YIst, 951 F.2d 1153 (9th Cir. 1991). 12 | Dated: August 7, 2023 13 14 15 ORAH BARNES UNITED STATES MAGISTRATE JUDGE 16 17 18 DB:12 19 | DB/DB Prisoner Inbox/Civil Rights/S/blan0051.Heck 20 21 22 23 24 25 26 27 28