Free Motion to Dismiss Case - District Court of Arizona - Arizona

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John T. Masterson, Bar #007447 Jennifer L. Holsman, Bar #022787 J ONES, S KELTON & H OCHULI, P.L.C. 2901 North Central Avenue Suite 800 Phoenix, Arizona 85012 Telephone: (602) 263-7310 Facsimile: (602) 651-7507 E-Mail: [email protected] [email protected] Attorneys for Defendants Rogers and Barr IN THE UNITED STATES DISTRICT COURT

9 FOR THE DISTRICT OF ARIZONA 10 Max Albert Raya, 11 Plaintiff, 12 v. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 This Motion is supported by the following Memorandum of Points and Authorities and the pleadings filed with the Court. Motion to Dismiss Plaintiff's Amended Complaint because Plaintiff's civil rights claim is premature under the United States Supreme Court decision in Heck v. Humphrey, 512 U.S. 477, 114 S. Ct. 2364 (1994). Defendants, Officer Jeremy Barr and Officer Richard Rogers, through counsel undersigned, and pursuant to Rule 12(b)(6), F ED. R. C IV. P., submit this Jeremy Barr, Richard Rogers, Joseph M. Arpaio, Maricopa County, Board of Supervisors, Phoenix Police Department, et al., Defendants. DEFENDANTS' MOTION TO DISMISS NO. 04-92-PHX-FJM (JI)

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MEMO RANDUM OF POINTS AND AUTHORITIES FACTUAL BACKGROUND On December 7, 2003, Plaintiff Raya was arrested for multiple offenses ranging from assault upon a police officer, resisting arrest, endangerment and escape. Plaintiff was later indicted by a grand jury on December 15, 2003, for the following offenses: (1) Aggravated assault, a class 6 felony; (2) Assault, a class 1 misdemeanor;

8 9 10 11 12 13 14 15 16 resisting arrest. (See Superior Court of Arizona May 12, 2004 plea agreement, attached 17 18 19 20 21 22 23 24 25 26
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(3) escape in the first degree, a class 4 felony; (4) aggravated assault on a police officer, a class 6 felony; (5) aggravated assault on a police officer, a class 6 felony; and (6) resisting arrest, a class 6 felony. (See Grand Jury Indictment, attached hereto as Exhibit 1). 1 Plaintiff ultimately entered a guilty plea for: (1) domestic violence assault; (2) escape; (3) aggravated assault on a police officer (Officer Barr); and (4)

hereto as Exhibit 2). Plaintiff was later sentenced pursuant to the guilty plea and is presently incarcerated in Florence, Arizona.

In deciding a Motion to Dismiss, the court is permitted to take judicial notice of facts outside the pleadings. See Sears, Roebuck & Co. v. Metropolitan Engravers, Ltd., 245 F.2d 67, 70 (9th Cir. 1956). A court may look to public records without converting a Motion to Dismiss to a Motion for Summary Judgment. See Mack v. South Bay Beer Distributors, Inc., 798 F.2d 1279 (9th Cir. 1986), citing Phillips v. Bureau of Prisons, 591 F.2d 966, 969 (D.C. 1979). 2

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On March 22, 2004, Plaintiff filed this excessive force claim against City of Phoenix Police Officers Jeremy Barr and Richard Rogers. 2 Both Officer Barr and Officer Rogers were involved with Plaintiff's arrest on December 7, 2003. Plaintiff alleges that during his arrest, excessive force was used upon him. (See Plaintiff's Complaint). Because Plaintiff's excessive force claim is barred by Heck v. Humphrey, Defendants respectfully request that Plaintiff's First Amended Complaint be dismissed in its entirety. II. LEGAL ARGUMENT A. Plaintiff's § 1983 Claims Are Barred By Heck v. Humphrey.

On June 24, 1994, the United States Supreme Court held that a §1983 plaintiff seeking to challenge the lawfulness of his conviction or duration of confinement must first establish that a conviction or sentence has been reversed, expunged, invalidated, or impugned by the grant of a writ of habeas corpus. Heck v. Humphrey, 114 S. Ct. 2364, 2372-73 (1994). The Court specifically stated: We hold that, in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state Plaintiff filed his initial Complaint against the Defendants on January 14, 2005. Plaintiff filed his First Amended Complaint on March 22, 2004. 3
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tribunal authorized to make such a determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Thus, when a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. But if the district court determines that the plaintiff's actions, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit.

Heck, 2373-73 (emphasis added) (footnotes omitted). The Heck court added that the statute of limitations would pose no obstacle to the § 1983 claim while state remedies were being pursued because the § 1983 claim does not accrue unless and until the criminal proceedings have terminated in the plaintiff's favor. Id. at 2374. Here, Plaintiff's Complaint alleges a violation of civil rights under § 1983. Under the clear mandate of Heck, a § 1983 claim bearing a relationship to a conviction or sentence that has not been invalidated is not cognizable. In this case, Plaintiff pled guilty to assaulting Defendant Officer Barr and resisting arrest, both of which require a finding that excessive force was not used against the criminal defendant. If the Court were to enter a judgment in Plaintiff's favor, finding that

24 25 26 4 Case 2:04-cv-00092-NVW Document 29 Filed 08/19/2005 Page 4 of 8 excessive force had indeed been used upon Plaintiff during his arrest, under Heck the

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Court's judgment would clearly "imply the invalidity of [Plaintiff's] conviction or sentence." A. Resisting Arrest Conviction.

In Arizona, a criminal suspect cannot be convicted for resisting arrest, where the arresting officer uses excessive force. Arizona law provides a complete justification to those who resist arrest in "excessive force" situations. See A.R.S. § 13-

8 9 10 11 12 13 14 15 16 excessive force. 17 18 19 20 21 22 23 24 25 26 5 Case 2:04-cv-00092-NVW Document 29 Filed 08/19/2005 Page 5 of 8 resisting arrest claim barred his § 1983 excessive force claim because a necessary condition to a valid conviction under California law is that the officer "was engaged in the lawful performance of his duty." Id. at *3. Any use of excessive force the court reasoned, would render that officer's performance "unlawful." Thus, the district court Sister courts within the Ninth Circuit have similarly and uniformly held that "resisting arrest" convictions bar excessive force claims. For example, in Green v. Dunburgh, 2002 WL 1067812 (N.D. Cal.), the district court held that the plaintiff's is the lack of excessive force. Id. In other words, Arizona's justification statute is only available if the resistance to arrest is "in response to excessive force by the officer." Id. Thus, a necessary condition to being convicted for resisting arrest is lack of 404(B)(2) (noting that the justification defense is unavailable when force is used or threatened, to resist unlawful arrest, unless in response to excessive force used by the officer). Thus a necessary condition to being convicted for resisting arrest in Arizona

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ruled that "a determination that [the arresting officer] used excessive force...would impermissibly imply that the element of being engaged in the lawful performance of his duty is not satisfied and that the conviction...is invalid." Id. This logic applies equally, if not more strongly, in Arizona. In order for a "resisting arrest" conviction to be valid, it must be established that the officer is acting pursuant to his "official authority." A.R.S. § 13-2508. An officer has no "authority" to act unlawfully. A necessary element to being convicted for resisting arrest is therefore that the officer was acting "lawfully." Because an excessive force claim would necessarily call into question the validity of the officer's "lawfulness," this claim would also necessarily call into question the underlying conviction for resisting arrest. For this reason, Heck bars Plaintiff's § 1983 claim against Officers Barr and Rogers. B. Aggravated Assault Conviction.

17 18 19 20 21 22 23 24 25 26 6 Case 2:04-cv-00092-NVW Document 29 Filed 08/19/2005 Page 6 of 8 criminal defendant was not "justified" in using force against his victim, Officer Barr. Instead, the Court found that it was Plaintiff, not either of the officers in this case, that used excessive force against the Plaintiff. Not the other way around. Pursuant to A.R.S. § 13-1203, a person commits aggravated assault by intentionally, recklessly or knowingly causing injury to another. Just as in a "resisting arrest" situation, the judge in Plaintiff's criminal case made a determination that the

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Because a finding of excessive force by the officers in this case would necessarily imply the invalidity of Plaintiff's valid and unchallenged conviction for aggravated assault, Heck bars Plaintiff's § 1983 claim. III. CONCLUSION Based on the foregoing, Defendants submit this Motion to Dismiss Plaintiff's First Amended Complaint because Plaintiff's civil rights claim is premature under the United States Supreme Court decision in Heck v. Humphrey. RESPECTFULLY SUBMITTED this _____ day of August 2005.

J ONES, S KELTON & H OCHULI, P.L.C.

By s/Jennifer L. Holsman John T. Masterson Jennifer L. Holsman 2901 North Central Avenue Suite 800 Phoenix, Arizona 85012 Attorneys for Defendants Rogers and Barr

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COPY of the foregoing mailed this day of June 2005, to:

Max Raya #185879 ASPC - Florence /Central P.O. Box 8200 Florence, AZ 85232 Plaintiff pro per

s/Kamika A. Brown

1495566_1

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Case 2:04-cv-00092-NVW