MASA NATHANIEL WARDEN, No. 2:19-cv-00431 MCE AC PS Plaintiff, v. FINDINGS AND RECOMMENDATIONS B. COWAN; W. WILLIAMS; and N. WEAVER, Defendants. Plaintiff, a state prisoner, is proceeding in this action pro se and in forma pauperis and the case was accordingly referred to the undersigned by Local Rule 302(c)(21). Defendants have moved for summary judgment. ECF No. 43. Plaintiff filed an opposition to the motion, ECF No. 48, and defendants replied. ECF No. 49. Plaintiff filed an unauthorized surreply. ECF No. 50. Based on the analysis below, defendants’ motion should be GRANTED in part, as to defendant W. Williams only, and otherwise DENIED. I. Complaint and Procedural Background This case proceeds on the basis of the First Amended Complaint (“FAC”), ECF No. 13. On screening pursuant to the in forma pauperis statute, the undersigned found that the FAC stated a Fourth Amendment claim for use of excessive force against Redding Police Officers B. Cowan, N. Weaver, and W. Williams. ECF No. 17. Plaintiff was given the opportunity to amend the complaint or to proceed only on those claims and against those defendants identified by the court. Id. Plaintiff chose to move forward with the FAC as limited by the screening order, and defendants filed an answer. ECF No. 33. Plaintiff alleges that on July 23, 2018, one of the officers—he states that he is unsure which one—shot him once while he had his arms in the air and was screaming that he was not armed. He fell to the ground, and all three officers “acting in cohort” proceeded “in unison” to shoot him 17 times. Id. at 3, 5. Correctional records attached to the FAC indicate that the shooting occurred in connection with plaintiff’s arrest. Id. at 10. According to comments in the prison records, which were based on Redding Police Department reports, officers responded after plaintiff punched an individual, burglarized a residence, and started challenging people to fight. Id. “When officer’s [sic] arrived [plaintiff] was uncooperative and showed behaviors indicative that he had a gun and was going to shoot officers which lead to Officers shooting [him] multiple times. It was discovered [plaintiff] did not have a gun. [Plaintiff] was subsequently transported to a medical facility for treatment.” Id. Plaintiff alleges that he was shot because he is black. Id. at 6. He states that he was unarmed and posed no immediate threat; and that, due to the number of recent shootings of other black people by white police officers, he was trying to make it clear that he was unarmed at the time he was shot. Id. at 3, 6. He alleges that as a result of the shooting, he is now “permanently disabled” and has to use a wheelchair and a walker to get around; he also suffers daily pain from multiple bullets that remain in his body. Id. at 3-4. Discovery in this case has concluded, and the instant motion for summary judgment was filed on July 24, 2020. ECF No. 43. II. Standard for Summary Judgment Summary judgment is appropriate when the moving party “shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). Under summary judgment practice, “[t]he moving party initially bears the burden of proving the absence of a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). The moving party may accomplish this by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials” or by showing that such materials “do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P. 56(c)(1). Summary judgment should be entered, “after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322. “[A] complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Id. at 323. In such a circumstance, summary judgment should “be granted so long as whatever is before the district court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 56(c), is satisfied.” Id. If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(c). The opposing party must demonstrate that the fact in contention is material, i.e., a fact “that might affect the outcome of the suit under the governing law,” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., “the evidence is such that a reasonable jury could return a verdict for the nonmoving party,” Anderson, 477 U.S. at 248. In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that “‘the claimed factual dispute be shown to require a jury or judge to resolve the parties’ differing versions of the truth at trial.’” T.W. Elec. Service, Inc., 809 F.2d at 630 (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89 (1968)). Thus, the “purpose of summary judgment is to pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.” Matsushita, 475 U.S. at 587 (citation and internal quotation marks omitted). “In evaluating the evidence to determine whether there is a genuine issue of fact, [the court] draw[s] all inferences supported by the evidence in favor of the non-moving party.” Walls v. Cent. Costa County Transit Auth., 653 F.3d 963, 966 (9th Cir. 2011) (citation omitted). It is the opposing party’s obligation to produce a factual predicate from which the inference may be drawn. See Richards v. Neilsen Freight Lines, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita, 475 U.S. at 586 (citations omitted). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.’” Id. at 587 (quoting First Nat’l Bank, 391 U.S. at 289). III. Statement of Undisputed Facts Unless otherwise specified, the following facts are either expressly undisputed by the parties or have been determined by the court, upon a full review of the record, to be undisputed by competent evidence. Defendants’ statement of undisputed facts is located at ECF No. 43-2, and is supported by multiple declarations, medical reports dated December 31, 2018 (ECF No. 43-8 at 8-9), a transcript form plaintiff’s felony plea and sentencing dated August 21, 2018 (id. at 127-40), and independent report from the Shasta County Office of the District Attorney dated May 23, 2019 (id. at 142-47). See ECF Nos. 43-3 through 43-8. Plaintiff did not submit a statement of undisputed facts or specifically contest defendants’ statement of undisputed facts, though he did attach various police and investigation reports to his opposition. ECF No. 48. This case involves an incident that took place on July 23, 2018, in Redding, California. Plaintiff Masa Warden injected himself with drugs and had crystal methamphetamine in his system on that date. Deposition of Masa Nathanael Warden, taken April 28, 2020 (“Warden Depo.”) (ECF No. 43-7) at 27:5-26, 28:1-6). Early in the morning, plaintiff jumped into the pool at Shasta High School and swam fully clothed, leaving the pool area in his wet clothes with a pair of blue goggles on his forehead, and a white towel around his waist. Warden Depo. 57:19-25, 59:1-19, 65:1-10, 68:16-24. When plaintiff was leaving the school, he was confronted by John Decker, with whom a fight ensued involving plaintiff punching Mr. Decker multiple times and threatening to kill him. Warden Depo. 60:2-25, 61:15-23, 62:1-8, 65:20-25, 66:6-11. Decker called 9-1-1 and reported the attack, advising the dispatcher that the suspect was a black male adult, short hair, approximately 5’9” to 5’10” tall, wearing a gray or white shirt, khaki pants, and a pair of blue swimming goggles on his head. Meanwhile, plaintiff fled the scene. Warden Depo. 61:5-8, 62:16-18; Declaration of Will Williams (“Williams Decl.”) ¶4; Declaration of Bryan Cowan (“Cowan Decl.”) ¶4; Declaration of Nick Weaver (“Weaver Decl.”) ¶4. Following the altercation with Decker, a witness observed a black male adult behind Shasta High School between the football and baseball fields, heading toward Mary Street, who was approximately 6’0” tall and wearing a short sleeve shirt and khaki pants. ECF 13:9-10 (First Amended Complaint, Exhibit A- Classification Committee Chrono); Warden Depo. 62:19-23, 69:5-10, 16-23, 70:5-14; Williams Decl. ¶¶4-5. Redding Police Officer Brian Moore responded to Shasta High School around 6:00 a.m. on July 23, 2018 to interview Decker regarding the assault, while Corporal Will Williams conducted a search of the Sacramento River Trail and “old rail trail” areas looking for the suspect. Williams Decl. ¶¶ 5-9. Around 7:38 a.m., Shasta High School employee Ryan Brown called 9-1-1 and reported that, while searching for the suspect in the area around the high school on a Kubota tractor, they spotted a man matching plaintiff’s description entering the backyard of a private residence at 310 Overhill Drive. ECF No. 45-5 at 6. Dispatchers notified officers over the police radio that the suspect of the Shasta High School incident that morning had been seen entering the backyard of a residence at 310 Overhill Drive, but officers were unable to locate plaintiff when they responded and conducted a search of the premises. ECF No. 43-5 (“Sheldon Report”) at 2. Around 8:29 a.m., Nueme Wells called 9-1-1 and reported that her surveillance cameras showed an adult intruder had come through the gate at her 4-plex residence located at 250 Overhill Drive around 6:00 a.m. that morning, had left a backpack on her porch, and was seen on tape watching a female tenant/neighbor leave her apartment. ECF 13 at 9-10; Sheldon Report at 2. Dispatchers notified officers via police radio of the intruder reported by Wells, and advised that the description was a black adult male. Williams Decl. ¶¶10-11. Corporal Williams heard the transmission and radioed Officer Moore stating that the backpack left behind could have been left by the same suspect responsible for the attack on John Decker at Shasta High School that morning, and Officer Moore was dispatched to investigate. Williams Decl. ¶¶l0-11. At or around 8:38 AM, Nueme Wells called 9-1-1 again and reported that one of her tenants at the 4-plex, Cheri Lovejoy, had been burglarized that morning, and swim goggles were left on the bed. Sheldon Report at 2. Officer Moore arrived at 250 Overhill Drive and conducted a burglary report. Id. Plaintiff fled to the Sacramento River Trail, where he began exercising, running sprints, and went for a swim, fully clothed, in the Sacramento River. Warden Depo. 29:20-25, 30:4-6. Around 9:00 a.m., a call for service was relayed from the Sacramento River Trail indicating a male wearing a blue shirt and light-colored pants had been acting strangely on the Sacramento River Trail, appeared to be on drugs, was acting agitated, talking to himself and asking people if they wanted to fight. Williams Decl. ¶12. Around 9:15 a.m., Officer Moore advised over the radio that the suspect wanted for the attack on John Decker at Shasta High School was also wanted for trespass and burglary of a residence at 250 Overhill Drive based on surveillance footage that had been obtained by police at both crime scenes. Id. at ¶13. Officer Moore further advised that the suspect was likely also the same person who was causing problems along the Sacramento River Trail. Id. Officer Little, who was the school resource officer for Shasta High School, obtained video surveillance footage of the Decker attack and positively identified plaintiff walking up from Overhill Drive from the Sacramento River Trail access point toward Mary Street. Williams Decl. ¶14. Corporal Williams was 2-4 blocks away from the area at the time and quickly dispatched to the location in his clearly marked Redding Police Department SUV. Id. at ¶15. While Corporal Williams was on his way to attempt contact with the plaintiff on Mary Street, Officer Moore advised over the radio that the plaintiff was wanted and arrestable for battery of a school employee, residential “cat” burglary, and harassing citizens along the Sacramento River Trail. Williams Decl. ¶¶16-17. Corporal Williams found plaintiff on the 700 block of Mary Street near Freedom High School and radioed that he had located plaintiff. Williams Decl. ¶18. Corporal Williams parked his SUV in the roadway and exited his vehicle wearing a full Redding Police Department uniform. ¶¶19-20. Officer Williams identified himself as police and asked to talk to plaintiff, with his hand on his gun in the low ready position. Williams Decl. ¶20. Plaintiff began walking hurriedly toward Williams waving his arms and throwing unknown items that he had in his hands. Williams Decl. ¶¶21-23. Because plaintiff’s clothes were wet, he was holding them up with both hands. Warden Depo. 78:1-25, 79:1-25. When Corporal Williams saw plaintiff reach for his waistband, he radioed that the suspect had a gun in his waistband. Williams Decl. ¶¶23-25. Officers Cowan and Weaver, who were already a few blocks from Corporal Williams’ location, heard dispatch advise that plaintiff had a gun in his waistband and began responding Code 3 with lights and sirens toward Corporal Williams. Cowan Decl. ¶¶16-17; Weaver Decl. ¶¶15-16. Officer Williams was giving plaintiff commands to stop and to show his hands, which plaintiff ignored and instead continued moving his body. Warden Depo. 81:4-25, 100:21-23, 101:1-21; Williams Decl. ¶¶26-30. Plaintiff saw that Corporal Williams had his gun out, and turned his shoulder to hide his chest while holding his waistband to keep his pants from falling down. Warden Depo. 81:1-25; Williams Decl. ¶¶29-30. Corporal Williams fired one round from his department issued duty weapon at plaintiff, and plaintiff immediately fell hard to the ground. Warden Depo. 81:24-25, 82:1-15; Williams Decl. ¶¶30-32. The bullet from Corporal Williams’ weapon did not actually hit plaintiff. Warden Depo. 81:25, 82:1-5. Immediately after firing his weapon, Corporal Williams made multiple calls over the police radio that shots had been fired and there was one down and medical was requested. Warden Depo. 82:16; Williams Decl. ¶¶ 33, 34; Waver Decl. ¶17. Officers Cowan and Weaver arrived on the scene nearly simultaneously and within seconds of Corporal Williams’ “shots fired” radio call. Williams Decl. ¶35; Cowan Decl. ¶19; Weaver Decl. ¶18. Officers Cowan and Weaver, each dressed in full Redding Police Department uniforms, responded to the scene in their marked Redding Police Department patrol vehicles, finding plaintiff lying on the ground, partly on his back and partly on his side, while being given commands not to move. Cowan Decl. ¶¶19- 20; Weaver Decl. ¶¶19-20. Corporal Williams told Officers Cowan and Weaver that plaintiff had a gun his waistband and had been shot once. Williams Decl. at ¶36; Cowan Decl. ¶20; Weaver Decl. ¶20. The officers continued giving plaintiff commands to not move, and to show his hands. Williams Decl. ¶¶37-38; Cowan Decl. ¶¶21-22; Weaver Decl. ¶¶19, 21-22. Plaintiff made a movement with his upper body. Warden Depo. 83:1-25, 84:1-25; Williams Decl. ¶¶39-40; Cowan Decl. ¶¶21-22, 24-26; Weaver Decl. ¶¶19, 21-22. Cowan and Weaver simultaneously fired their department-issued duty weapons at the plaintiff. Williams Decl. ¶¶39-40; Cowan Decl. ¶¶24-29; Weaver Decl. ¶¶21-27. Officer Cowan and officer Weaver each fired several rounds at plaintiff. Cowan Decl. ¶28; Weaver Decl. ¶26; Sheldon Report at 7. Immediately after Officers Cowan and Weaver discharged their weapons, a radio call was made that additional shots had been fired and medical aid was requested. Williams Decl. ¶¶41-42; Cowan Decl. ¶¶30-31; Weaver Decl. ¶¶28-29. A fourth police unit arrived on scene within seconds of the second “shots fired” radio call, at which time plaintiff was placed under arrest and emergency first-aid was rendered until the paramedics arrived. Warden Depo. 97:13-25, 98:1-8, 102:21-25, 103:1-7, 106:2-10. Plaintiff was transported from the scene to Mercy Medical Center in Redding, where he remained for about three weeks and was treated for his injuries. Warden Depo. 106:2-10. Plaintiff was placed under arrest at Mercy Medical Center on August 11, 2018, following his discharge from the hospital, and was booked into the Shasta County Jail. Warden Depo. 106:5- 22, 108:6-9. Plaintiff was charged with one count of obstructing or resisting arrest, a felony, in violation of Cal. Penal Code § 69 for his interaction with Corporal Williams; two counts of resisting, obstructing, or delaying an officer, a misdemeanor, in violation of Penal Code § 148(a)(l) for his interactions with Officers Cowan and Weaver; one count of criminal threats, a felony, a violation of Penal Code § 422 for the threats he made against John Decker; one count of first-degree residential burglary, a felony, in violation of Penal Code § 459 for the burglary of Cheri Lovejoy’s residence; one count of assault with force likely to cause great bodily injury, a felony, a violation of Penal Code § 245(a)(4) for the attack on John Decker; and one count of battery on a school employee, a misdemeanor, in violation of Penal Code § 243.6, also for the attack on John Decker. Sheldon Decl. Exhibit A; Warden Depo. Exhibit F (SCSC Case No. 18- 05051); Warden Depo Exhibit E (SCSC Case No. 18-05052). On August 21, 2018, during his first appearance in Shasta County Superior Court, while represented by a public defender, plaintiff plead no contest to felony resisting arrest with respect to Corporal Williams in violation of Penal Code § 69, as well as felony criminal threats in violation of Penal Code § 422, and felony first-degree residential burglary in violation of Penal Code § 459. Warden Depo. 109:8-10, 110:10-15, 111:17-25, 112:1-13, 113:1-14, 117:3-15, Exhibit E, Exhibit F, Exhibit G. Plaintiff and his attorney stipulated on the record that the factual basis upon which he entered his plea of no contest to resisting arrest in violation of Penal Code § 69 was the Summary of Events prepared by Det. Julie Soksoda of the Shasta County Sheriff’s Office, attached to the Criminal Complaint in Shasta County Superior Court Case No. 18-05051. Declaration of Patrick L. Deedon, ¶14 and Exhibit 13 (Sentencing Transcript, ECF No. 43-8 at 133-35). Plaintiff and his attorney stipulated on the record that the factual basis upon which he entered his pleas of no contest to criminal threats in violation of Penal Code § 422 and no contest to first-degree residential burglary in violation of Penal Code § 459 was the Investigative Narrative, Declaration for Arrest Warrant, and Affidavit in Support of Ramey Warrant prepared by Investigator Jonathan Sheldon of the Redding Police Department, as well as the Arrest Warrant issued pursuant thereto by the Hon. Stephen Baker of the Shasta County Superior Court, all of which were attached to the Criminal Complaint in Shasta County Superior Court Case No. 18-05052. Id. The Shasta County District Attorney’s Office investigated the officer-involved shooting which forms the basis of plaintiff’s FAC and declined to prosecute any of the defendants, finding that all three officers were justified in their actions and that the shooting was lawful. Id. at ¶15 and Exhibit 14 (District Attorneys’ Report). //// //// IV. Analysis A. Claims Against Officer Williams are Heck-Barred Defendants contend that plaintiff’s claims against Corporal Williams are barred by Heck v. Humphrey, 512 U.S. 477 (1994). ECF No. 43-1 at 12-13. Under Heck, a prisoner may not proceed on a claim for damages under § 1983 if a judgment favoring plaintiff “would necessarily imply the invalidity of his conviction or sentence.” Heck, 512 U.S. at 487. In such a case, plaintiff is foreclosed from proceeding absent proof that the conviction or sentence has been reversed, expunged or invalidated. Id. at 486–487. However, “if the district court determines that the plaintiff’s action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed ....” Id. at 487. As an illustration of the rule’s application, the Heck Court explained that an individual convicted of resisting arrest, defined as intentionally preventing a peace officer from effecting a lawful arrest, would be barred from bringing a claim for damages for unlawful arrest. Id. at 487 n.6. That result is compelled by the fact that plaintiff, in order to prevail on his § 1983 claim, would have to negate an element of his conviction offense: the lawfulness of the arrest. Id. When a plaintiff bringing an excessive use of force claim has been convicted of resisting arrest, application of the Heck bar turns on the relationship between the arrest that has been determined lawful in the criminal case and the use of force alleged to have violated plaintiff’s rights. For example, an “allegation of excessive force by a police officer would not be barred by Heck if it were distinct temporally or spatially from the factual basis for the person’s conviction.” Beets v. County of Los Angeles, 669 F.3d 1038, 1042 (9th Cir. 2012); see also Sanford v. Motts, 258 F.3d 1117, 1120 (9th Cir. 2001) (“[e]xcessive force used after an arrest is made does not destroy the lawfulness of the arrest”). Similarly, Heck does not bar an excessive force claim based on allegations that the force used was unreasonable in relation to the degree of resistance to arrest. Hooper v. County of San Diego, 629 F.3d 1127, 1133 (9th Cir. 2011). Such a claim, if proven, would not imply the invalidity of a conviction for resisting arrest. Id. In sum, Heck does not bar claims against police for excessive force arising from conduct independent of the facts giving rise to a plaintiff’s prior conviction. Smith v. City of Hemet, 394 F.3d 689, 698 (9th Cir. 2005)–99 (9th Cir.) (en banc), cert. denied, 545 U.S. 1128 (2005). In contrast, a § 1983 action must be dismissed if the criminal conviction stands and arises “out of the same facts ... and is fundamentally inconsistent with the unlawful behavior for which section 1983 damages are sought ....” Beets, 669 F.3d at 1042 (internal citations and quotation marks omitted) (barring plaintiff's § 1983 claim for excessive force when decedent killed by officer but accomplice convicted of aiding and abetting assault on peace officer). Where the alleged wrongful conduct that serves as the basis of the § 1983 claim is very “closely interrelated” with the act for which plaintiff was convicted, the claim is Heck-barred. Cunningham v. Gates, 312 F.3d 1148, 1154 (9th Cir. 2002), as amended on denial of reh’g (Jan. 14, 2003) (applying Heck bar where there was no break between the plaintiff’s provocative act of firing on the police and the police response that he claimed was excessive). The application of Heck, as the foregoing authorities demonstrate, is a highly fact- dependent inquiry that turns on the precise factual basis for the conviction. In the case at bar, plaintiff pled no contest to a charge of violating Cal. Penal Code § 69 (resisting or obstructing an officer), and was convicted. A conviction under Cal. Penal Code § 69, which makes it a crime to resist, obstruct, or delay a peace officer in the performance of his or her duties, “can be valid even if, during a single continuous chain of events, some of the officer’s conduct was unlawful,” because the conviction itself “requires only that some lawful police conduct was resisted, delayed, or obstructed during that continuous chain of events.” Hooper, 629 F.3d at 1131 (citing Yount v. City of Sacramento, 43 Cal. 4th 885 (2008)). The conduct on which a no contest plea to such a charge is based may coexist with conduct supporting a Section 1983 claim insofar as “two isolated factual contexts exist.” Id. at 1132. When a case involves a plea of no contest, as it does here, the question of whether the Heck bar applies turns on exactly what facts the plea was based on; the facts that establish the foundational basis for the plea cannot be undermined by the §1983 claim. See Winder v. McMahon, 345 F. Supp. 3d 1197, 1203 (C.D. Cal. 2018). The court previously construed plaintiff’s FAC as alleging an excessive force claim under the Fourth Amendment. ECF No.15 at 4-5. The Fourth Amendment analysis requires balancing the “nature and quality of the intrusion” on a person’s liberty with the “countervailing governmental interests at stake” to determine whether the use of force was objectively reasonable under the circumstances. Graham v. Connor, 490 U.S. 386, 396 (1989). “[T]he ‘reasonableness’ inquiry in an excessive force case is an objective one: The question is whether the officers’ actions are ‘objectively reasonable’ in light of the facts and circumstances confronting them[.]” Id. at 397 (citations omitted); see Rodriguez v. City of Los Angeles, 891 F.3d 776, 797 (9th Cir. 2018) (“We determine whether the Fourth Amendment has been violated by assessing the objective reasonableness of the force used, balancing the degree of intrusion against the government’s interest.”). Based on a comparative review of plaintiff’s plea and his §1983 claims, the undersigned concludes that the claim against Corporal Williams is Heck-barred. In relevant part, plaintiff’s plea stipulated that he was “uncooperative” with Williams, that he made movements “with his hand as if he was preparing to draw an unknown type of weapon from his waistband area,” that Williams gave him “multiple commands to show his hands and to get out his hands out of his pocket,” but that he “continued to make movements to the area of his waistband,” and that Williams “fired one round, causing [plaintiff] to fall to the ground.” ECF No. 43-8 at 134-35 (Sentencing Hearing Transcript), ECF No. 43-7 at 127-28 (Criminal Complaint Summary of Events). The actions plaintiff stipulated to in his plea, particularly the use of his hands to appear as if he was drawing a weapon, make it impossible to separate plaintiff’s conduct giving rise to his conviction and Corporal Williams’ use of force in discharging his weapon at plaintiff. The factual basis supporting the conviction and the factual basis of the excessive use of force claim are inextricably intertwined. Having stipulated to these facts as the basis for his conviction, plaintiff cannot now challenge Corporal Williams’ use of force in these events in a §1983 action; such a challenge necessarily goes to the validity of the conviction and is barred by Heck. Plaintiff does not allege that his conviction has been vacated or overturned. Thus, this claim cannot proceed. B. Officers Weaver and Cowan are Not Entitled to Summary Judgment on the Merits Defendants argue that plaintiff’s remaining Fourth Amendment unlawful force claims against Officers Weaver and Cowan fail on the merits and that they are entitled to summary judgment. ECF No. 43-1 at 14-20. “An objectively unreasonable use of force is constitutionally excessive and violates the Fourth Amendment’s prohibition against unreasonable seizures.” Torres v. City of Madera, 648 F.3d 1119, 1123–24 (9th Cir. 2011). The Fourth Amendment requires police officers making an arrest to use only an amount of force that is objectively reasonable in light of the circumstances facing them. Tennessee v. Garner, 471 U.S. 1, 7–8 (1985). Excessive force cases often turn on credibility determinations, and “[the excessive force inquiry] ‘nearly always requires a jury to sift through disputed factual contentions, and to draw inferences therefrom.’” Smith, 394 F.3d at 701 (alteration in original) (quoting Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002)). Therefore, “‘summary judgment or judgment as a matter of law in excessive force cases should be granted sparingly.’” Id. The Ninth Circuit has “held repeatedly that the reasonableness of force used is ordinarily a question of fact for the jury.” Liston v. County of Riverside, 120 F.3d 965, 976 n.10 (9th Cir. 1997), as amended (Oct. 9, 1997) (citations omitted). In evaluating a claim of excessive force, a court must balance the “nature and quality of the intrusion” against the “countervailing government interests at stake.” Graham v. Connor, 490 U.S. 386, 396 (1989) (citations omitted). Factors to be considered in assessing the government interests include, but are not limited to, “the severity of the crime at issue, whether the suspect poses an immediate threat to the safety of the officers or others, and whether he is actively resisting arrest or attempting to evade arrest by flight.” Graham, 490 U.S. at 396. In this case, the facts related to Officers Weaver and Cowan’s use of force are disputed, and the undisputed facts are not clearly favorable to the officers. On summary judgment the undisputed facts must be viewed in the light most favorable to plaintiff. Walls, 653 F.3d at 966. Here, those facts include that both Officers Weaver and Cowan discharged multiple rounds of bullets at an unarmed black man while he was on the ground and (as far as they knew) had already been shot. Cowan Decl. ¶¶ 22, 28; Weaver Decl. ¶¶ 19, 26. These facts do not support judgment for the defendants as a matter of law. Even so, the disputed facts in this case make summary judgment inappropriate. For example, plaintiff testified that, despite the officers’ claims that he was reaching toward pockets, the pants he was wearing did not have pockets. Warden Decl. 104:15-22. Plaintiff testified that while the officers were yelling to put his hands out, he told them his hands were already out. Id. Plaintiff testified that he said “I don’t have a weapon. I don’t have a weapon. I don’t have a weapon.” Id. He testified that when he was on the ground he pushed up just to keep telling them that he did not have a weapon, “and then they shot me, and then they start laughing at the end.” Id., 105:1-4. The officers do not agree to these assertions as undisputed facts, and thus central facts surrounding the incident, which go directly to the reasonableness of the officers’ use of force, are in dispute. Accordingly, summary judgment cannot issue. C. Qualified Immunity Does Not Defeat Plaintiff’s Claims Against Weaver and Cowan Defendants argue that qualified immunity protects Officers Weaver and Cowan because they believed their lives were at risk when they fired their weapons at plaintiff. ECF No. 43-1 at 20-23. Government officials are immune “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). “Qualified immunity balances two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223, 231 (2009). Ideally, qualified immunity is determined at the earliest possible stage in litigation to avoid unnecessary burden and expense. Hunter v. Bryant, 502 U.S. 224, 227 (1991) (per curiam). The Supreme Court has established a two-step inquiry for determining whether qualified immunity applies. Saucier v. Katz, 533 U.S. 194, 201 (2001) (overruled in part by Pearson, 555 U.S. 223). First, a court must ask, “[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?” Id. Second, if the answer to the first inquiry is “yes,” the court must ask whether the constitutional right was “clearly established.” Id. This second inquiry is to be undertaken in the specific context of the case. Id. In Pearson v. Callahan, the Supreme Court removed any requirement that the Saucier test be applied in a rigid order, holding “[t]he judges of the district courts and the courts of appeals should be permitted to exercise their sound discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first in light of the circumstances in the particular case at hand.” Pearson, 555 U.S. at 236. “The plaintiff bears the burden of proof that the right allegedly violated was clearly established.” Tarabochia v. Adkins, 766 F.3d 1115, 1125 (9th Cir. 2014) (internal quotation marks omitted). “To meet this standard the very action in question need not have previously been held unlawful.” Id. (internal quotation marks omitted). This is especially the case in the context of alleged Fourth Amendment violations, where the constitutional standard of “reasonableness” requires a fact-specific inquiry. Mattos v. Agarano, 661 F.3d 433, 442 (9th Cir. 2011) (en banc). The court must determine “whether a reasonable officer would have had fair notice that the action was unlawful[.]” Tarabochia, 766 F.3d at 1125 (internal quotation marks and brackets omitted). At its base, “[t]he qualified immunity doctrine rests on a balance between, on the one hand, society’s interest in promoting public officials’ observance of citizens’ constitutional rights and, on the other, society’s interest in assuring that public officials carry out their duties and thereby advance the public good.” Beier v. City of Lewiston, 354 F.3d 1058, 1071 (9th Cir. 2004). Here, defendants argue that “while it is clearly established that ‘a police officer may not seize an unarmed, nondangerous suspect by shooting him,’ there is no case law to support a finding that an officer violates the Fourth Amendment if he uses deadly force to seize a dangerous suspect who posed a threat of serious physical harm.” ECF No. 43-1 at 21, quoting Tennessee, 471 U.S. at 11. This argument is a nonstarter, because plaintiff alleges that he did not pose a threat of serious harm because he was unarmed and lying on the ground at the time Officers Cowan and Weaver fired their weapons. Indeed, it is undisputed that plaintiff was already on the ground when Officers Cowan and Weaver shot him multiple times, as discussed above. Defendants’ argument does not accurately reflect the facts of this case. The Ninth Circuit has repeatedly recognized that excessive force cases often turn on credibility determinations, and that the excessive force inquiry “nearly always requires a jury to sift through disputed factual contentions, and to draw inferences therefrom.” Santos v. Gates, 287 F.3d 846, 853 (9th Cir. 2002). Where, as here, facts relevant to the reasonableness of force used wOASe SLD VOMIT IVINS Ne UIC VO LOPE □□□ AV VI tN
are disputed, the case cannot be resolved at summary judgment on qualified immunity grounds. See Liston, 120 F.3d at 975; Santos, 287 F.3d at 853. Accordingly, qualified immunity is not a proper ground for summary judgment here. Conclusion Accordingly, for the reasons explained above, IT IS RECOMMENDED that defendants’ motion for summary judgment (ECF No. 43-1) be GRANTED as to Corporal Williams only, and DENIED as to remaining the remaining defendants, Officers Cowan and Weaver. These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty-one days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Id.; see also Local Rule 304(b). Such a document should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the objections shall be filed with the court and served on all parties within fourteen days after service of the objections. Local Rule 304(d). Failure to file objections within the specified time may waive the right to appeal the District Court’s order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153, 1156-57 (9th Cir. 1991). DATED: September 17, 2020 ~ Cte. UNITED STATES MAGISTRATE JUDGE 16