1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 MARLOW R. STALLING, Case No. 2:20-cv-01180-JAM-JDP (PC) 10 Plaintiff, FINDINGS AND RECOMMENDATIONS THAT DEFENDANT’S MOTION TO 11 v. DISMISS BE DENIED 12 A. STINSON, OBJECTIONS DUE WITHIN FOURTEEN DAYS 13 Defendant. ECF No. 16 14 15 16 Plaintiff is a state prisoner proceeding without counsel in this civil rights action brought 17 under 42 U.S.C. § 1983. He claims that defendant A. Stinson violated his Eighth Amendment 18 rights by using pepper-spray against him unprovoked. Defendant has filed a motion to dismiss, 19 arguing that this excessive force claim is barred by the favorable termination rule of Heck v. 20 Humphrey, 512 U.S. 477 (1977), and separately that plaintiff’s claim is based on a version of 21 events fundamentally inconsistent with the findings of a prison disciplinary hearing.1 22 Defendant’s motion should be denied. 23 Factual Background 24 Plaintiff alleges that on October 23, 2019, while he was attempting to get the attention of 25 an individual who had just delivered documents relating to his parole, defendant came to his cell 26 and pepper-sprayed him through the food port, hitting him in the face and back. ECF No. 1 at 3; 27 1 Plaintiff has filed an opposition, ECF No. 19, and defendant has filed a reply, ECF 28 No. 20. 1 ECF No. 16 at 3. Defendant then allegedly reopened the food port and sprayed him again, with 2 another can of pepper spray. Id. 3 Motion to Dismiss Standard 4 A motion to dismiss brought under Rule 12(b)(6) tests the legal sufficiency of a claim, and 5 the court will grant the motion if defendant shows that there is no cognizable legal theory of 6 liability or that plaintiff has alleged insufficient facts to support a cognizable theory. See 7 Conservation Force v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011). A court’s review is 8 generally limited to the operative pleading. See Daniels-Hall v. National Educ. Ass’n, 629 F.3d 9 992, 998 (9th Cir. 2010). A pleading is sufficient under Rule 8(a)(2) if it contains “a short and 10 plain statement of the claim showing that the pleader is entitled to relief” that gives “the 11 defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atlantic 12 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 13 The court construes a pro se litigant’s complaint liberally, see Haines v. Kerner, 404 U.S. 519, 14 520 (1972) (per curiam), and will only dismiss a pro se a complaint “if it appears beyond doubt 15 that the plaintiff can prove no set of facts in support of his claim which would entitle him to 16 relief,” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017) (quoting Nordstrom v. 17 Ryan, 762 F.3d 903, 908 (9th Cir. 2014)). 18 Analysis 19 A. Request for Judicial Notice 20 Defendant asks that I take judicial notice of Exhibits A-D attached to his motion. Exhibit 21 A is the incident report describing defendant’s deployment of pepper spray against plaintiff. ECF 22 No. 16-2 at 6-28. Exhibit B is an abstract of judgment reflecting plaintiff’s current prison 23 sentence. Id. at 31. Exhibit C is the Rules Violation Report (“RVR”) plaintiff was assessed 24 following defendant’s use of pepper-spray against him. Id. at 34-38. Exhibit D is a summary of 25 the disciplinary proceedings against plaintiff for the RVR contained in Exhibit C. Id. at 41-53. 26 “As a general rule, a district court may not consider any material beyond the pleadings in 27 ruling on a Rule 12(b)(6) motion . . . without converting the motion to dismiss into a motion for 28 summary judgment.” Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (citation and 1 internal quotation marks omitted). There are two exceptions: (1) a court may take judicial notice 2 of material that is either submitted as part of or necessarily relied upon by the complaint; or (2) a 3 court may take judicial notice of matters of public record. Id. at 688-89; Coto Settlement v. 4 Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010). 5 I will grant defendant’s request for judicial notice in part. As an initial matter, plaintiff 6 has not opposed it. One of the documents, the abstract of judgment at Exhibit B, is appropriate 7 for notice because it is a court record. See United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 8 1980). The other three documents are derived from prison administrative disciplinary 9 proceedings. Courts have held that such documents are appropriate for notice as to their 10 existence, see, e.g., Venson v. Jackson, No. 18-CV-2278-BAS (BLM), 2019 U.S. Dist. LEXIS 11 117529, at *11 (S.D. Cal. July 15, 2019), but not as to the factual accounts or findings contained 12 therein. See Lee, 250 F.3d at 690 (“On a Rule 12(b)(6) motion to dismiss, when a court takes 13 judicial notice of another court’s opinion, it may do so ‘not for the truth of the facts recited 14 therein, but for the existence of the opinion, which is not subject to reasonable dispute over its 15 authenticity.’”) (quoting Southern Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Group 16 Ltd., 181 F.3d 410, 426-27 (3rd Cir. 1999)). I take notice of the existence of these documents and 17 of their administrative outcome. I do not take notice of their factual accounts or findings that 18 contradict plaintiff’s allegations. 19 B. Motion to Dismiss 20 On November 27, 2019, plaintiff was found guilty of an RVR written by defendant. ECF 21 No. 1 at 42, 48. Plaintiff lost 60 days of credit. Id. at 49. Because of this, defendant argues that 22 the favorable termination rule set forth in Heck v. Humphrey, 512 U.S. 477 (1994), bars plaintiff’s 23 Eighth Amendment claim because “[p]laintiff has not vacated his conviction or received a 24 reinstatement of the 60 days of credits he lost as a result of the guilty finding.” Separately, 25 defendant maintains that the findings of the disciplinary hearing are fundamentally inconsistent 26 with plaintiff’s claim. ECF No. 16-1 at 8. Neither argument is convincing. 27 Habeas corpus is the sole remedy for a state prisoner who wishes to challenge his 28 confinement or its duration and seeks immediate or speedier release. Heck, 512 U.S. at 481; 1 Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); see also Wilkinson v. Dotson, 544 U.S. 74, 78 2 (2005) (“[A] prisoner in state custody cannot use a § 1983 action to challenge ‘the fact or duration 3 of his confinement.’” (citation omitted)).
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1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 MARLOW R. STALLING, Case No. 2:20-cv-01180-JAM-JDP (PC) 10 Plaintiff, FINDINGS AND RECOMMENDATIONS THAT DEFENDANT’S MOTION TO 11 v. DISMISS BE DENIED 12 A. STINSON, OBJECTIONS DUE WITHIN FOURTEEN DAYS 13 Defendant. ECF No. 16 14 15 16 Plaintiff is a state prisoner proceeding without counsel in this civil rights action brought 17 under 42 U.S.C. § 1983. He claims that defendant A. Stinson violated his Eighth Amendment 18 rights by using pepper-spray against him unprovoked. Defendant has filed a motion to dismiss, 19 arguing that this excessive force claim is barred by the favorable termination rule of Heck v. 20 Humphrey, 512 U.S. 477 (1977), and separately that plaintiff’s claim is based on a version of 21 events fundamentally inconsistent with the findings of a prison disciplinary hearing.1 22 Defendant’s motion should be denied. 23 Factual Background 24 Plaintiff alleges that on October 23, 2019, while he was attempting to get the attention of 25 an individual who had just delivered documents relating to his parole, defendant came to his cell 26 and pepper-sprayed him through the food port, hitting him in the face and back. ECF No. 1 at 3; 27 1 Plaintiff has filed an opposition, ECF No. 19, and defendant has filed a reply, ECF 28 No. 20. 1 ECF No. 16 at 3. Defendant then allegedly reopened the food port and sprayed him again, with 2 another can of pepper spray. Id. 3 Motion to Dismiss Standard 4 A motion to dismiss brought under Rule 12(b)(6) tests the legal sufficiency of a claim, and 5 the court will grant the motion if defendant shows that there is no cognizable legal theory of 6 liability or that plaintiff has alleged insufficient facts to support a cognizable theory. See 7 Conservation Force v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011). A court’s review is 8 generally limited to the operative pleading. See Daniels-Hall v. National Educ. Ass’n, 629 F.3d 9 992, 998 (9th Cir. 2010). A pleading is sufficient under Rule 8(a)(2) if it contains “a short and 10 plain statement of the claim showing that the pleader is entitled to relief” that gives “the 11 defendant fair notice of what the . . . claim is and the grounds upon which it rests.” Bell Atlantic 12 Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 13 The court construes a pro se litigant’s complaint liberally, see Haines v. Kerner, 404 U.S. 519, 14 520 (1972) (per curiam), and will only dismiss a pro se a complaint “if it appears beyond doubt 15 that the plaintiff can prove no set of facts in support of his claim which would entitle him to 16 relief,” Hayes v. Idaho Corr. Ctr., 849 F.3d 1204, 1208 (9th Cir. 2017) (quoting Nordstrom v. 17 Ryan, 762 F.3d 903, 908 (9th Cir. 2014)). 18 Analysis 19 A. Request for Judicial Notice 20 Defendant asks that I take judicial notice of Exhibits A-D attached to his motion. Exhibit 21 A is the incident report describing defendant’s deployment of pepper spray against plaintiff. ECF 22 No. 16-2 at 6-28. Exhibit B is an abstract of judgment reflecting plaintiff’s current prison 23 sentence. Id. at 31. Exhibit C is the Rules Violation Report (“RVR”) plaintiff was assessed 24 following defendant’s use of pepper-spray against him. Id. at 34-38. Exhibit D is a summary of 25 the disciplinary proceedings against plaintiff for the RVR contained in Exhibit C. Id. at 41-53. 26 “As a general rule, a district court may not consider any material beyond the pleadings in 27 ruling on a Rule 12(b)(6) motion . . . without converting the motion to dismiss into a motion for 28 summary judgment.” Lee v. City of Los Angeles, 250 F.3d 668, 689 (9th Cir. 2001) (citation and 1 internal quotation marks omitted). There are two exceptions: (1) a court may take judicial notice 2 of material that is either submitted as part of or necessarily relied upon by the complaint; or (2) a 3 court may take judicial notice of matters of public record. Id. at 688-89; Coto Settlement v. 4 Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010). 5 I will grant defendant’s request for judicial notice in part. As an initial matter, plaintiff 6 has not opposed it. One of the documents, the abstract of judgment at Exhibit B, is appropriate 7 for notice because it is a court record. See United States v. Wilson, 631 F.2d 118, 119 (9th Cir. 8 1980). The other three documents are derived from prison administrative disciplinary 9 proceedings. Courts have held that such documents are appropriate for notice as to their 10 existence, see, e.g., Venson v. Jackson, No. 18-CV-2278-BAS (BLM), 2019 U.S. Dist. LEXIS 11 117529, at *11 (S.D. Cal. July 15, 2019), but not as to the factual accounts or findings contained 12 therein. See Lee, 250 F.3d at 690 (“On a Rule 12(b)(6) motion to dismiss, when a court takes 13 judicial notice of another court’s opinion, it may do so ‘not for the truth of the facts recited 14 therein, but for the existence of the opinion, which is not subject to reasonable dispute over its 15 authenticity.’”) (quoting Southern Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Group 16 Ltd., 181 F.3d 410, 426-27 (3rd Cir. 1999)). I take notice of the existence of these documents and 17 of their administrative outcome. I do not take notice of their factual accounts or findings that 18 contradict plaintiff’s allegations. 19 B. Motion to Dismiss 20 On November 27, 2019, plaintiff was found guilty of an RVR written by defendant. ECF 21 No. 1 at 42, 48. Plaintiff lost 60 days of credit. Id. at 49. Because of this, defendant argues that 22 the favorable termination rule set forth in Heck v. Humphrey, 512 U.S. 477 (1994), bars plaintiff’s 23 Eighth Amendment claim because “[p]laintiff has not vacated his conviction or received a 24 reinstatement of the 60 days of credits he lost as a result of the guilty finding.” Separately, 25 defendant maintains that the findings of the disciplinary hearing are fundamentally inconsistent 26 with plaintiff’s claim. ECF No. 16-1 at 8. Neither argument is convincing. 27 Habeas corpus is the sole remedy for a state prisoner who wishes to challenge his 28 confinement or its duration and seeks immediate or speedier release. Heck, 512 U.S. at 481; 1 Preiser v. Rodriguez, 411 U.S. 475, 500 (1973); see also Wilkinson v. Dotson, 544 U.S. 74, 78 2 (2005) (“[A] prisoner in state custody cannot use a § 1983 action to challenge ‘the fact or duration 3 of his confinement.’” (citation omitted)). The rule in Heck has been applied in the prison 4 disciplinary context when the “defect complained of by [plaintiff] would, if established, 5 necessarily imply the invalidity of the deprivation of his good-time credits[,]” Edwards v. 6 Balisok, 520 U.S. 641, 646 (1997) (emphasis added); Nonnette v. Small, 316 F.3d 872, 875 (9th 7 Cir. 2002), and if the restoration of those credits “necessarily” would “affect the duration of time 8 to be served[.]” Muhammed v. Close, 540 U.S. 749, 754 (2004) (per curiam); see also Nettles v. 9 Grounds, 830 F.3d 922, 929 n.4 (9th Cir. 2016) (en banc) (“Heck applies only to administrative 10 determinations that ‘necessarily’ have an effect on ‘the duration of time to be served.’” (citations 11 omitted)), cert. denied, 137 S. Ct. 645 (2017). 12 The Ninth Circuit has declined to apply the Heck bar where success in a § 1983 action 13 would not necessarily affect the duration of the plaintiff’s sentence. In Nettles v. Grounds, an 14 indeterminately-sentenced life prisoner sought restoration of 30 days of lost good-time credits and 15 expungement of the associated rule violation report. 830 F.3d 922, 927 (9th Cir. 2016). The 16 Ninth Circuit held that the claim did not fall solely within the scope of habeas corpus because 17 success on the merits would not necessarily lead to an earlier release. Id. at 935. Importantly, the 18 court stated that it could not tell whether the restoration of time credits would affect the duration 19 of confinement because the prisoner had not yet been found suitable for parole, and if he was 20 eventually paroled, the length of his parole was unknown. Id. at 934-35. Courts have applied 21 Nettles to Section 1983 actions in determining whether plaintiffs’ claims are Heck-barred. See, 22 e.g., Delgado v. Gonzalez, 686 F. App’x 434, 435 (9th Cir. 2017) (reversing a decision that relied 23 on Balisok and not Nettles in determining that the plaintiff’s § 1983 claim was Heck-barred 24 despite not knowing whether the loss of good-time credit would necessarily affect the length of 25 sentence). 26 Nettles is instructive here. Defendant has the burden of demonstrating that Heck bars 27 Plaintiff’s § 1983 claim, see Sandford v. Motts, 258 F.3d 1117, 1119 (9th Cir. 2001) (“It was the 28 burden of the defendants to establish their [Heck] defense by showing what the basis was; they 1 failed to do so.”), and defendant has not met this burden. Neither the complaint nor defendant’s 2 motion alleges, and no judicially noticeable document proves, that the loss of time credits will 3 necessarily affect the duration of plaintiff’s confinement.2 Plaintiff is indeterminately sentenced, 4 and defendant has not stated or argued that plaintiff is suitable for parole or that the loss of these 5 credits necessarily will lead to a shorter confinement. 6 Separately, defendant asks me to dismiss plaintiff’s excessive force claim on the ground 7 that it is barred by Heck because the disciplinary findings are inconsistent with plaintiff’s 8 complaint.3 ECF No. 16-1 at 6. As stated above, I decline to take judicial notice of the factual 9 accounts and findings in the disciplinary documents that contradict plaintiff’s allegations. Thus, I 10 reject this argument. 11 It is RECOMMENDED that defendant’s motion to dismiss (ECF No. 16) be DENIED. 12 I submit these findings and recommendations to the district judge under 28 U.S.C. 13 § 636(b)(1)(B) and Rule 304 of the Local Rules of Practice for the United States District Court, 14 Eastern District of California. Within 14 days of the service of the findings and 15 recommendations, the parties may file written objections to the findings and recommendations 16 with the court and serve a copy on all parties. That document should be captioned “Objections to 17 Magistrate Judge’s Findings and Recommendations.” The district judge will review the findings 18 and recommendations under 28 U.S.C. § 636(b)(1)(C).
19 20 21 22 23
24 2 Plaintiff allegedly was receiving help for a “B.P.H.,” ECF No. 1 at 3, and defendant states that this was related to plaintiff’s parole, ECF No. 16-1 at 2. However, no other judicially 25 noticeable facts regarding the status of plaintiff’s parole are provided, and I cannot consider arguments that have not been made. 26 3 Plaintiff alleges that defendant, without warning, sprayed him with two cans of pepper 27 spray. ECF No. 1 at 3-5. The documents that defendant contends the court should look to instead indicate that defendant discharged a single continuous burst of pepper spray after giving plaintiff 28 multiple warnings to stop striking his head on the cell door window. ECF No. 16-2, Ex. D at 8. 1 > IT IS SO ORDERED. 3 ( | { Wine Dated: _ August 16, 2021 Q_—— 4 JEREMY D. PETERSON 5 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28