Unpublished Disposition, 916 F.2d 716 (9th Cir. 1985)

MEMORANDUM^** 

Charles Elliott, a California prisoner, appeals pro se the district court's dismissal of his civil rights action. Because it does not clearly appear from the record that Elliott's fourth amendment claim regarding defendant Soares' and Miner's use of excessive force is barred by collateral estoppel, we reverse and remand as to this claim. We affirm the district court's dismissal of Elliott's other claims.

FACTS

Appellant Elliott filed a complaint in district court against defendants Union City, the Union City Police Chief, and members of the Union City Police Department for violations of his civil rights pursuant to 42 U.S.C. § 1983. Elliott's claims stem from his March 17, 1985 arrest on a misdemeanor trespassing charge (later dropped) during which Union City Police Officers allegedly used a taser "stun gun" to subdue him, and his subsequent conviction on two felony counts of battery on a police officer.

The facts as they appear from the opinion in Elliott's appeal of his state court criminal conviction are as follows. On the day of the alleged assault, appellant Elliott was living with his father and mother at their home in Union City. After an altercation concerning the use of a clothes dryer, Elliott's father called the police and requested that an officer be dispatched to his house because of a domestic dispute. Two female police officers, Officers Honebein and Smith, arrived in separate cars. Elliott's father told the officers that his son was violent and refused to pay rent or leave the house. He informed the officers that he wanted his son removed from the house.

Officers Smith and Honebein asked appellant Elliott to come out of his bedroom. He refused. Officer Honebein told Elliott's father that he would have to place his son under citizen's arrest before they could remove him. He agreed to do so, and officer Honebein went to get an arrest report for him to sign. Elliott then exited his bedroom and went into the kitchen, followed by officer Smith. He grabbed a piece of celery and picked up a knife and began to chop the celery. Officer Smith told him twice to put the knife down, but Elliott ignored her. After her third instruction, Elliott turned towards her with the knife, put the knife down, and went into the garage.

Officer Honebein and Elliott's father were in the garage. Officer Smith asked Elliott to step away from his father, and attempted to guide him away by taking his upper arm with her palm. Elliott jerked away, swinging his arms, and pushed Officer Smith. Officer Honebein, who was standing behind Elliott, tried to apply her Nova stun gun to Elliott's lower back. Elliott turned, kicked Officer Honebein in the stomach, and knocked the Nova out of her hand. He then hit Officer Smith several times on the head. Elliott was also hitting Officer Honebein at this time, going back and forth between the two officers. After the last blow to Officer Smith's head, she was able to radio for help. She then got her baton and jabbed Elliott in the stomach, but he grabbed the baton and would not release it. Officer Honebein drew her revolver and pointed it at Elliott, commanding him to release the baton. Elliott released the baton and exited the garage. The officers told him to stop but he did not. Elliott refused to follow the officers' instructions to kneel down and place his hands on his head. Other police officers then arrived (including defendants Soares and Miner), drew their guns, and told Elliott to put his hands on his head, but he refused. An officer fired his taser gun at Elliott, but with no effect. The officer fired again, Elliott started to walk away, but then fell down. Elliott was then handcuffed, his feet were secured, and he was taken to the police station. He was charged with battery upon Officers Smith and Honebein.

At his trial on the charges of battery against Officers Smith and Honebein, the court instructed the jury on appellants' right of self-defense.¹  The jury convicted Elliott, however, of two counts of battery against a police officer. Elliott's conviction was affirmed on appeal.

Elliott then filed the instant action in federal district court pursuant to 42 U.S.C. § 1983 based on the alleged use of excessive force by Union City police officers in their March 17, 1985 arrest. Elliott alleged violations of his eighth, fifth, fourteenth, sixth, and fourth amendment rights. The district court dismissed Elliott's eighth, fifth, fourteenth, and sixth amendment claims for failure to state a claim. While acknowledging that Elliott's fourth amendment charge stated a valid claim under section 1983, the district court dismissed it on the ground that it contained "a complete and obvious defense on its face." See Franklin v. Murphy, 745 F.2d 1221, 1228 (9th Cir. 1984). We affirm as to the dismissal of Elliott's eighth, fifth, fourteenth, and sixth amendment claims, but reverse and remand for reconsideration Elliott's fourth amendment claim.

Eighth Amendment Claim

Elliott's eighth amendment claim alleges cruel and unusual punishment by virtue of the police officers' use of excessive force in subduing him with the stun gun. However, because defendant's alleged actions occurred before Elliott was convicted of any crime, the eighth amendment does not apply. Bell v. Wolfish, 441 U.S. 520, 535, n. 16 (1979).

Fifth Amendment Claim

Elliott's fifth amendment claim is based on the use of testimony at his trial which was allegedly obtained in violation of his Miranda rights. However, damages are not available against defendant police officers for Miranda violations. Bennett v. Passic, 545 F.2d 1260, 1263 (10th Cir. 1976). Further, to the extent the alleged Miranda violation affects the validity of Elliott's conviction, his sole relief is in habeas corpus under 28 U.S.C. § 2254. Ybarra v. Reno Thunderbird Mobile Home Village 723 F.2d 675, 681-82 (9th Cir. 1984). As Elliott has filed a habeas petition, the district court stated that it would address the alleged Miranda violation in its consideration of that petition.

Fourteenth Amendment Claim

The district court properly dismissed Elliott's fourteenth amendment procedural due process claim. Elliott claims that the acts of defendants resulted in "appellant's being denied a fair trial and thereby being denied due process of law." The district court properly ruled that, as the fourteenth amendment claim goes to the validity of Elliott's conviction, his remedy lies in a habeas corpus action. See, e.g., Young v. Kenny, 887 F.2d 237, 238 (9th Cir. 1989).

Sixth Amendment Claim

The district court properly dismissed Elliott's claim that the allegedly perjured testimony of police officers deprived him of his sixth amendment right to a fair trial. Police officers are absolutely immune to a claim for damages resulting from perjured testimony at a criminal trial. Briscoe v. LaHue, 460 U.S. 325, 345 (1983).

Fourth Amendment Claim

Elliott's fourth amendment claim stems from the police officers' alleged use of excessive force in subduing Elliott with the taser gun. As the district court properly found, this charge states a valid claim under 42 U.S.C. § 1983. Robins v. Harum, 773 F.2d 1004, 1010 (9th Cir. 1985). However, the district court dismissed this claim on the ground that the litigation of this claim during Elliott's state court criminal trial collaterally estops him from relitigating the issue in federal court.

The Ninth Circuit follows state rules of issue preclusion. Ayers v. City of Richmond, 895 F.2d 1267 (9th Cir. 1990). In California, it is settled that a judgment of conviction in a criminal case may collaterally estop the defendant from relitigating in a subsequent civil action an issue necessarily decided in the criminal case. Allstate Ins. Co. v. Overton, 206 Cal. Rptr. 823, 160 Cal. App. 3d 843 (1984). The prerequisites for such collateral estoppel are (1) a final judgment on the merits in the first action, (2) identity or privity among the parties in the first action and those against whom the estoppel is asserted, and (3) identity of the issue presented in the second action with one necessarily decided in the first. Id. at 826, 160 Cal. App. 3d at 847. However, if the prior criminal action did not necessarily decide the very issue disputed in the second suit, collateral estoppel does not apply. Id.

Elliott contends that the issue of excessive force by defendants Miner and Soares was never litigated in his criminal trial, since they arrived on the scene after the battery for which he was prosecuted had taken place. Therefore, he argues, that although the jury, in rejecting his self-defense claim, necessarily considered any pre-battery use of force by Officers Smith and Honebein, they did not consider the post-battery use of force by defendants Miner and Soares. Specifically, Elliott alleges that after he was handcuffed and while he was being carried to the patrol car, defendant Miner continually inflicted upon him a 50,000 volt electrical shock from the taser gun. He further alleges that while he was still handcuffed, he was placed face down in the street and defendant Soares administered another 50,000 volt electrical shock with a Nova stun gun.

We agree with Elliott. We see no indication, on the record before us, that the use of force by defendants Soares and Miner was necessarily decided when the jury rejected Elliott's claim of self-defense to charges of battery on Officers Smith and Honebein. Because Officers Soares and Miners arrived on the scene after the alleged battery against Officers Smith and Honebein, their actions were not relevant to the battery charge nor to Elliott's claim of self-defense. The jury's rejection of Elliott's self-defense claim indicates only the jury's determination that neither Officer Smith nor Officer Honebein's actions prior to the altercation constituted an excessive use of force. It does not indicate any determination as to the post-altercation use of force by defendants Soares and Miner after their arrival on the scene and while Elliott was handcuffed.

Because the record indicates that the issue of Soares' and Miner's use of force was not necessarily decided in Elliott's criminal case, collateral estoppel does not apply to Elliott's fourth amendment claim against defendants Soares and Miner. We therefore reverse and remand this claim to the district court for consideration.

Appointment of Counsel

The district court did not abuse its discretion in denying Elliott's motion for request of counsel. This circuit has held that counsel may be designated under 28 U.S.C. § 1915(d) only in "exceptional circumstances." Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). A finding of exceptional circumstances requires evaluating both "the likelihood of success on the merits [a]nd the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved." Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Both factors must be evaluated together before reaching a decision on request of counsel under section 1915(d). Wilborn v. Escalderon, 789 F.2d at 1331. Because the issues presented are not so complex that Elliott has been unable to articulate his position adequately, he fails to meet one of the requirements for appointment of counsel. The district court therefore did not abuse its discretion in denying Elliott's Sec. 1915(d) motion.

Conclusion

We reverse the district court's dismissal of Elliott's fourth amendment claim against defendants Miner and Soares and remand it.²  We affirm the district court as to all other claims.

AFFIRMED IN PART, REVERSED AND REMANDED IN PART.