(PC) Brown v. Harris et al, No. 1:2012cv01472 - Document 52 (E.D. Cal. 2014)
Court Description: FINDINGS and RECOMMENDATIONS recommending that 22 Defendants' Rule 12(b)(6) Motion to Dismiss be DENIED re 1 Prisoner Civil Rights Complaint signed by Magistrate Judge Gary S. Austin on 6/9/2014. Referred to Judge O'Neill. Objections to F&R due within thirty (30) days. (Jessen, A)
Download PDF
<![CDATA[
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CORNELL BROWN, 12 Plaintiff, 13 14 1:12-cv-01472-LJO-GSA-PC FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT DEFENDANTS RULE 12(b)(6) MOTION TO DISMISS BE DENIED vs. R. HARRIS, et al., 15 (Doc. 22; also resolves Doc. 39.) Defendants. OBJECTIONS, IF ANY, DUE WITHIN THIRTY DAYS 16 17 18 19 I. BACKGROUND Cornell Brown (APlaintiff@) is a state prisoner proceeding pro se and in forma pauperis 20 with this civil rights action pursuant to 42 U.S.C. ' 1983. 21 Plaintiff s initial Complaint filed on September 10, 2012, against defendant Harris for 22 excessive force in violation of the Eighth Amendment, and defendant Nelson for failure to 23 protect Plaintiff in violation of the Eighth Amendment. (Doc. 1.) This case now proceeds on 24 On December 6, 2013, defendants Harris and Nelson (“Defendants”) filed an 25 unenumerated Rule 12(b) motion to dismiss this action for failure to exhaust administrative 26 remedies, and a Rule 12(b)(6) motion to dismiss for failure to state a claim on the ground that 27 Plaintiff s claims for relief under § 1983 are barred by Heck v. Humphrey, 512 U.S. 477 (1994) 28 and Edwards v. Balisok, 520 U.S. 641, 648 (1997). (Doc. 22.) On January 27, 2014, Plaintiff 1 1 filed an opposition to the motions. (Doc. 27.) On January 29, 2014, Defendants filed a notice 2 of errata concerning the motions to dismiss. (Doc. 28.) On February 3, 2014, Defendants filed 3 a reply to Plaintiff s opposition. (Doc. 29.) On February 14, 2014, Plaintiff filed a response to 4 Defendants notice of errata. (Doc. 30.) On April 30, 2014, Defendants filed a Request to 5 withdraw their exhaustion of remedies argument from the motion to dismiss, in light of the 6 Ninth Circuit s recent opinion in Albino v. Baca, 747 F.3d 1162 (9th Cir. 2014). (Doc. 41.) 7 On May 7, 2014, Plaintiff filed an amended opposition to the motions to dismiss. (Doc. 42.) 8 On May 8, 2014, the court granted Defendants Request to withdraw their exhaustion of 9 remedies argument from the motion to dismiss. (Doc. 43.) On June 6, 2014, Defendants filed 10 an opposition to Plaintiff s amended opposition. (Doc. 51.) Defendants Rule 12(b)(6) motion to dismiss on the ground that Plaintiff s claims for 11 12 relief under § 1983 are barred by Heck and Balisok is now before the court. (Doc. 22.) 13 II. PLAINTIFF’S ALLEGATIONS 14 Plaintiff is a state prisoner in the custody of the California Department of Corrections 15 and Rehabilitation (CDCR) at Pelican Bay State Prison in Crescent City, California. The 16 events at issue in the Complaint allegedly occurred at the California Correctional Institution 17 (CCI) in Tehachapi, California, when Plaintiff was incarcerated there. Plaintiff names as 18 defendants R. Harris and C. Nelson, Correctional Officers employed by the CDCR at CCI. 19 Plaintiff alleges that on April 12, 2012, at 0732 hours in the 4A Security Housing Unit 20 (SHU), he was escorted to the shower by Defendant Harris. Plaintiff alleges that Harris 21 “snatched him hard by the arm and stated in a low menacing voice that if you ever disrespect 22 me again, you are going to have serious problems.” (Complaint, Doc. 1 at 7:3-10.) Plaintiff 23 ignored the statement and did not speak. Plaintiff alleges that “after we both took a few more 24 steps, the Defendant intentionally stuck one of his legs in front of the Plaintiff s legs and then 25 the Defendant slammed the Plaintiff down on the cement floor. Plaintiff was in restraints with 26 his hands handcuffed behind his back, so Plaintiff was unable to break the fall.” (Id. at 7:17- 27 24.) Plaintiff alleges that he fell face first onto the cement. Plaintiff alleges that Harris used 28 both hands to strike Plaintiff with his baton, using “power blows.” (Id. at 7:27-8:1.) Plaintiff 2 1 begged Harris to stop. Harris responded by punching Plaintiff in the face with a closed fist. 2 Plaintiff alleges that Defendant C/O Nelson “had a smile on his face as he stood by and 3 watched R. Harris brutally assault the Plaintiff.” (Id. at 8:5-7.) 4 Plaintiff alleges that he continued to call for help, and Defendant Harris stated that he 5 knew what would shut Plaintiff up. Plaintiff alleges that “as the Plaintiff screamed for help, the 6 Defendant stuck the nozzle part of the pepper spray in the Plaintiff s mouth and continued to 7 spray the Plaintiff inside his mouth. This continued until the pepper spray container was 8 empty.” (Id. at 8:13-15.) Harris then dragged Plaintiff by his braided hair into the section. 9 Plaintiff alleges that at that point he vomited and then lost consciousness. Plaintiff alleges that 10 as a result, he suffered permanent damage in his right eye, blood clots in both legs, and had 11 “extensive” dental work performed. (Id. at 8:24.) 12 III. RULE 12(b)(6) MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM 13 A motion to dismiss pursuant to Rule 12(b)(6) operates to test the sufficiency of the 14 complaint. “A state prisoner cannot use a § 1983 action to challenge the „fact or duration of his 15 confinement, because such an action lies at the „core of habeas corpus. ” Simpson v. Thomas, 16 528 F.3d 685, 693 (9th Cir. 2008) (quoting Preiser v. Rodriguez, 411 U.S. 475, 489 (1973)). 17 Thus, where a § 1983 action seeking damages alleging constitutional violations that would 18 necessarily imply the invalidity of a conviction or sentence, the prisoner must first establish 19 that the underlying sentence or conviction has already been invalidated on appeal, by a habeas 20 petition, or terminated in his favor via some other similar proceeding. Heck, 512 U.S. at 438- 21 37. This “favorable termination” rule applies to prison disciplinary proceedings, if those 22 proceedings resulted in the loss of good-time or behavior credits. Balisok, 520 U.S. at 646-48 23 (holding that claim for monetary and declaratory relief challenging validity of procedures used 24 to deprive prisoner of good-time credits is not cognizable under § 1983); see also Wilkinson v. 25 Dotson, 544 U.S. 74, 81-82 (2005) (explaining that “a state prisoner s § 1983 action is barred 26 (absent prior invalidation) no matter the relief sought (damages or equitable relief), no matter 27 the target of the prisoner s suit (state conduct leading to conviction or internal prison 28 proceedings) if success in that action would necessarily demonstrate the invalidity of 3 1 confinement or its duration” (emphasis omitted)). Stated another way, a § 1983 claim is barred 2 if the “plaintiff could prevail only by negating „an element of the offense of which he has been 3 convicted. ” Cunningham v. Gates, 312 F.3d 1148, 1153-54 (9th Cir. 2002) (citing Heck, 512 4 U.S. at 487 n. 6). However, when the § 1983 claim does not necessarily implicate the 5 underlying disciplinary action (or criminal conviction), it may proceed. See Muhammad v. 6 Close, 540 U.S. 749, 754-55 (2004). Defendants’ Rule 12(b)(6) Motion 7 A. 8 Defendants argue that Plaintiff s claims for relief are barred by Heck and Balisok, 9 because success in this lawsuit would invalidate the prison disciplinary finding of Plaintiff s 10 guilt for resisting a peace officer and his resulting loss of credits concerning the same incident. 11 Evidence in Plaintiff s Complaint shows that on April 26, 2012, Plaintiff was found guilty of 12 resisting a peace officer and assessed ninety days loss of behavioral/work credits, based on the 13 April 12, 2012 incident at issue in this case. (Doc. 1 at 28.) Defendants argue that if Plaintiff 14 succeeds on his theory of liability in this case – that he was the victim of an attack by defendant 15 Harris and that defendant Nelson failed to protect him -- it would imply the invalidity of the 16 disciplinary determination and loss of custody credits, and therefore Plaintiff s claims are 17 barred in this § 1983 action. Plaintiff’s Opposition 18 B. 19 In Plaintiff s amended opposition, he argues that the motion to dismiss as barred by 20 Heck and Balisok should be denied because his loss of credits, imposed as the result of a guilty 21 finding for resisting staff, was fully restored. Defendants’ Reply to the Amended Opposition 22 C. 23 In their reply to the amended opposition, Defendants argue that Plaintiff s claims are 24 barred by Heck because the guilty finding against Plaintiff for resisting staff was not 25 overturned. Defendants assert that Plaintiff s evidence shows that his credits were restored not 26 because he overturned his disciplinary conviction, but rather, because he remained disciplinary 27 free for a statutorily specified amount of time. (Doc. 42 at 8-9.) Defendants argue that under 28 /// 4 1 Heck, Plaintiff was required to overturn the finding of guilt and resultant loss of good-time 2 credits through a habeas proceeding, before filing this § 1983 lawsuit. 3 D. 4 Uncontroverted evidence in Plaintiff s Complaint shows that after a disciplinary hearing 5 conducted on April 26, 2012, Plaintiff was found guilty of resisting a peace officer in violation 6 of Cal. Code Regs., tit. 15 § 3005(a), and assessed a ninety day loss of credits. (Complaint, 7 Doc. 1 at 32-33.) Discussion 8 In several cases, the Ninth Circuit has applied Heck s favorable termination requirement 9 to consider, and sometimes preclude, excessive force claims brought pursuant to 42 U.S.C. § 10 1983. For example, in Cunningham v. Gates, the Ninth Circuit found that § 1983 excessive 11 force claims filed by a prisoner who was convicted of felony murder and resisting arrest were 12 barred by Heck because his underlying conviction required proof of an “intentional provocative 13 act” which was defined as “not in self defense.” Cunningham, 312 F.3d at 1152. 14 that police had used unreasonable force while effecting the plaintiff s arrest, the court held, 15 would “call into question” the validity of factual disputes which had necessarily already been 16 resolved in the criminal action against him. Id. at 1154. However, in Smith v. City of Hemet, 17 394 F.3d 689 (9th Cir. 2005), the Ninth Circuit considered whether excessive force allegations 18 of a prisoner who pled guilty to resisting arrest pursuant to Cal. Penal Code § 148(a)(1) were 19 also barred by Heck and found that “Smith s § 1983 action was not barred . . . because the 20 excessive force may have been employed against him subsequent to the time he engaged in the 21 conduct that constituted the basis for his conviction.” Id. at 693. Under such circumstances, 22 the Ninth Circuit held Smith s § 1983 action “neither demonstrated nor necessarily implied the 23 invalidity of his conviction.” Id.; see, e.g., Guerrero v. Gates, 442 F.3d 697, 703 (9th Cir. 24 2003) (“Heck does not bar Guerrero's § 1983 excessive force claim ... because this claim does 25 not necessarily imply the invalidity of his conviction or sentence”); see also Sanford v. Motts, 26 258 F.3d 1117, 1120 (9th Cir. 2001) (“If the officer used excessive force subsequent to the time 27 Sanford interfered with the officer s duty, success in her section 1983 claim will not invalidate 28 her conviction. Heck is no bar”); Hooper v. County of San Diego, 629 F.3d 1127, 1134 (9th 5 A finding 1 Cir. 2011) (holding that a conviction for resisting arrest under Cal. Penal Code § 148(a)(1) does 2 not “bar a § 1983 claim for excessive force under Heck if the conviction and the § 1983 claim 3 are based on different actions during „one continuous transaction ”). 4 Here, unlike the defendants in Cunningham, Defendants have not shown that Plaintiff s 5 excessive force and failure to protect claims against them are necessarily inconsistent with his 6 adjudication of guilt for resisting a peace officer. Thus, this court cannot say that Plaintiff s 7 excessive force claims “necessarily imply the invalidity” of his conviction for resisting a peace 8 officer. Heck, 512 U.S. at 487. The factual context in which the force was used is disputed. 9 Thus, even though Plaintiff was found guilty of willfully resisting a peace officer, Defendants, 10 if Plaintiff s allegations are believed, nevertheless may be found liable for responding 11 “maliciously and sadistically” with the intent to cause him harm and “deliberately indifferent to 12 a substantial risk of serious harm” to Plaintiff. See Hudson v. McMillian, 503 U.S. at 1, 7 13 (1992); Simpson v. Thomas, No. 2:03-cv-0591 MCE GGH, 2009 WL 1327147 at *4 (E.D. Cal. 14 May 12, 2009) (success on the plaintiff s Eighth Amendment excessive force claim would not 15 necessarily invalidate his battery conviction pursuant to Cal. Code Regs., tit. 15 § 3005(c) 16 because “even if Defendant acted unlawfully by using excessive force, Plaintiff could still have 17 been guilty of battery”); accord Gipbsin v. Kernan, No. CIV S-07-0157 MCE EFB P, 2011 WL 18 533701 at *5-6 (E.D. Cal. 2011); Gabalis v. Plainer, No. CIV S-09-0253-CMK, 2010 WL 19 4880637 at *7 (E.D. Cal. 2010) (“It is possible for defendants to have used excessive force and 20 for plaintiff to have attempted to assault a correctional officer. Thus, success on plaintiff s civil 21 rights claims would not necessarily imply that the guilty finding and resulting loss of good-time 22 credits is invalid.”); Candler v. Woodford, No. C 04-5453 MMC, 2007 WL 3232435 at *7 23 (N.D. Cal. Nov. 1, 2007) (“Because defendants have not shown that a finding of their use of 24 excessive force would necessarily negate an element of the resisting a peace officer offense, the 25 Court cannot conclude that plaintiff s claims are barred under Heck”). Therefore, the court 26 finds that Plaintiff s claims for excessive force and failure to protect are not barred under Heck 27 and Balisok, and Defendants Rule 12(b)(6) motion to dismiss should be denied. 28 /// 6 1 2 3 IV. CONCLUSION AND RECOMMENDATIONS Based on the foregoing, IT IS HEREBY RECOMMENDED that Defendants Rule 12(b)(6) motion to dismiss for failure to state a claim, filed on December 6, 2013, be DENIED. 4 These Findings and Recommendations will be submitted to the United States District 5 Court Judge assigned to this action pursuant to the provisions of 28 U.S.C. ' 636 (b)(1). 6 Within thirty (30) days after being served with a copy of these Findings and 7 Recommendations, any party may file written objections with the Court and serve a copy on all 8 parties. Such a document should be captioned AObjections to Magistrate Judge=s Findings and 9 Recommendations.@ Any reply to the objections shall be served and filed within ten (10) days 10 after service of the objections. The parties are advised that failure to file objections within the 11 specified time may waive the right to appeal the order of the District Court. Martinez v. Ylst, 12 951 F.2d 1153 (9th Cir. 1991). 13 14 15 16 IT IS SO ORDERED. Dated: June 9, 2014 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 27 28 7
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
