ORDER GRANTING MOTION FOR JUDGMENT ON THE PLEADINGS

Re: Dkt. No. 26

KANDIS A. WESTMORE, Magistrate Judge.

The City of San Pablo moves for judgment on the pleadings against Argelio Lozano. The Court has reviewed the papers filed by the parties, considered the arguments advanced by counsel, and the relevant legal authority. For the reasons set forth below, the motion is GRANTED.

I. BACKGROUND

A. Factual background

1. The April 25, 2010 incident1

On April 25, 2010, San Pablo Police Department officers were in foot pursuit of Argelio Lozano ("Plaintiff"), who was suspected of automobile theft. (Am. Compl. ¶ 6, Dkt. No. 1.) A police canine unit officer ordered him to stop and get down on the ground. (Id. ¶ 6.) Plaintiff complied, got down on the ground, and put his hands behind his head. (Id. ¶ 7.) At that point, the police canine ran toward Plaintiff, who was not resisting arrest, and bit his right underarm, puncturing an artery. (Id.)

Plaintiff requested medical attention and was taken to a hospital. (Id. ¶¶ 8, 9.) En route, he "expired due to a loss of blood and was resuscitated." (Id. ¶ 9.) Plaintiff underwent emergency surgery and remained in critical condition after suffering organ failure as a result of blood loss due to the dog bite. (Id. ¶ 11.) His right arm, right hand, and fingers are now "almost completely disabled and permanently disfigured." (Id. ¶ 12.) Plaintiff claims that, at the time of the incident, he did not use any force or do anything that would have warranted any use of force against him. (Id. ¶ 11.)

2. The state court criminal proceedings

On July 8, 2010, the Contra Costa County District Attorney filed criminal charges against Plaintiff for (1) unlawfully driving or taking a vehicle in violation of California Vehicle Code section 10851(a) ("Count 1"), (2) receiving stolen property (motor vehicles/vessels/construction equipment) in violation of California Penal Code section 496(d) ("Count 2"), (3) evading an officer in violation of California Vehicle Code section 2800.1 ("Count 3"), (4) hit-run driving in violation of California Vehicle Code section 20002(a) ("Count 4"), and (5) resisting, obstructing, or delaying a peace officer in violation of California Penal Code section 148(a)(1) ("Count 5"). (Req. Judicial Notice ("RJN"), Ex. A, Criminal Information, Dkt. No. 27.)2

At trial, San Pablo Police Officer Sprague testified that he was on patrol on the afternoon of April 25, 2010 when he saw a white Acura. (RJN, Ex. B, Trial Tr. 49:18-23, 52:18-53:3.) He ran the vehicle's license plate number and learned that the car had been reported stolen. (Id. at 53:10-22.) He followed the Acura into a parking lot. (Id. at 54:10-55:16.) The officer then activated the overhead lights on his vehicle, opened his driver's side door, stepped out of his car, drew his service weapon, pointed it at the driver of the vehicle, and ordered him to shut the engine off. (Id. at 56:24-28, 57:21-26.) The vehicle continued to travel through the parking lot. (Id. at 59:3-7.) As the vehicle was still moving, the driver's side door opened, and the driver, who the officer identified as Plaintiff, exited the vehicle and fled on foot. (Id. at 57:4-17, 62:21-64:7.)

San Pablo Police Officer Galios also testified at Plaintiff's trial. (Id. at 128:1-173:18.) He was also on duty on April 25, 2010 when he was dispatched to assist with the incident involving Plaintiff. (Id. at 131:20-132:20.) He saw someone, who the officer identified as Plaintiff, matching the suspect's description, and parked his cruiser. (Id. at 135:17-22, 136:3-7, 137:4-13.) With his police canine at his side, he approached Plaintiff. (Id. at 138:4-9.) When Plaintiff made eye contact with Officer Galios, the officer ordered Plaintiff not to run and warned that he would release the dog. (Id. at 138:12-15.) Plaintiff "immediately bolted." (Id. at 139:6-11.) Officer Galios then pursued Plaintiff on foot, with his police canine at his side. (Id. at 139:15-18.) Officer Galios had fallen behind Plaintiff, and as Plaintiff was going through a fence, Officer Galios released the police canine. (Id. at 142:10-12.) The police canine ran straight towards Plaintiff as he was running into a backyard. (Id. at 143:14-17.) The dog bit Plaintiff's shoulder and forced him to the ground. (Id. at 143:17-19.) Once Officer Galios released the dog, another officer arrived, and Plaintiff was handcuffed. (Id. at 144:19-24.)

At the close of the evidence, the state court gave the following jury instructions with respect to Count 5:

(RJN, Ex. B, Trial Tr. at 270:20-273:16 (emphasis added).)

After a three day trial, the jury convicted Plaintiff of Counts 2, 3, 4, and 5 on September 15, 2010. (RJN, Ex. D, Jury Verdict.) Plaintiff was sentenced to four years in state prison. (RJN, Ex. E, Sentence.) Plaintiff appealed the conviction, which the Court of Appeal affirmed on January 23, 2013. (RJN, Ex. F, Court of Appeal Decision.)

B. Procedural background

On February 27, 2014, Plaintiff filed his complaint, in which he alleged violations of the Fourth and Fourteenth Amendments based on the use of excessive force during his arrest. (Id. ¶ 14.) He also asserted that such use of force stems from an established policy, practice, or custom and that the City knew that canine units "have operated and continue to operate in such a way as to deprive numerous individuals of their constitutional rights. . . ." (Id. ¶ 15.) On April 1, 2014, the City moved to dismiss the complaint for failure to state a claim upon which relief can be granted. (Def.'s Mot. to Dismiss, Dkt. No. 10.) The Court granted the motion on May 9, 2014. (May 9, 2014 Order, Dkt. No. 17.)

On May 13, 2014, Plaintiff filed his amended complaint, asserting a Fourth Amendment claim for excessive force against an unnamed defendant officer4 pursuant to 42 U.S.C. § 1983, and a Monell claim against the City. (Am. Compl. ¶¶ 18, 19, Dkt. No. 21.) The City filed its answer on May 29, 2014. (Answer, Dkt. No. 23.) Its motion for judgment on the pleadings, and an accompanying request for judicial notice, followed on July 3, 2014. (Def.'s Mot., Dkt. No. 26.) Plaintiff opposes the motion, but he has not filed an opposition to Defendant's request for judicial notice. (Pl.'s Opp'n, Dkt. No. 29.) On August 21, 2014, the Court held a hearing on the motion.

II. LEGAL STANDARD

Federal Rule of Civil Procedure 12(c) allows a party to move for judgment on the pleadings after the pleadings are closed but early enough not to delay trial. Judgment on the pleadings is proper "when there is no issue of material fact in dispute, and the moving party is entitled to judgment as a matter of law." Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009).

A "motion for judgment on the pleadings faces the same test as a motion under Rule 12(b)(6)." McGlinchy v. Shell Chemical Co., 845 F.2d 802, 810 (9th Cir. 1988). In determining whether a moving party has satisfied this standard, the court treats the opposing party's allegations as true, and construes them in the light most favorable to that party. General Conference Corp. of Seventh-Day Adventists v. Seventh-Day Adventists Congregational Church, 887 F.2d 228, 230 (9th Cir. 1989) (citation omitted). Nonetheless, "[c]onclusory allegations of law and unwarranted inferences are insufficient to avoid" dismissal. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009).

In ruling on the motion, the court may consider exhibits attached to the pleadings, Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987), and facts which may be judicially noticed, Mullis v. United States Bankr. Ct., 828 F.2d 1385, 1388 (9th Cir. 1987). When a court grants a Rule 12(c) motion, leave to amend should be freely given if it is possible that further factual allegations will cure any defect. See Somers v. Apple, Inc., 729 F.3d 953, 960 (9th Cir. 2013).

III. DISCUSSION

The City moves for judgment on the pleadings on the ground that Heck v. Humphrey, 512 U.S. 477 (1994) bars Plaintiff's § 1983 excessive force claim because it implies the invalidity of his conviction for violating California Penal Code section 148(a), a conviction which has not been reversed, expunged, declared invalid, or called into question by a writ of habeas corpus. (Def.'s Mot. at 7.) In opposition, Plaintiff argues that Heck does not bar his excessive force claim. (Pl.'s Opp'n at 3.) He contends that his conviction and his claim are based on different actions occurring during one continuous transaction, thus eluding Heck.5 (Id. at 3, 4.) The record lends no support to this contention.

A. Heck mandates dismissal of this action.

In Heck, the Supreme Court limited a plaintiff's ability to bring a claim under § 1983 when it calls the lawfulness of a criminal conviction into question. 512 U.S. at 487. There, the petitioner commenced a § 1983 action, in which he alleged that state law enforcement engaged in an unlawful investigation, destroyed evidence, and used unlawful voice identification procedures in his criminal trial. Id. at 479. At the time he commenced the action, the appeal of his criminal conviction was pending. Id. The Court, in deciding whether a state prisoner may challenge the constitutionality of a conviction in a suit for damages under § 1983, held that a state prisoner's damages claim, which necessarily implied the invalidity of his conviction, could not be maintained under § 1983 absent a showing "that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." Id. at 486-87. Under Heck, a damages claim that challenges the validity of a criminal conviction that "has not been so invalidated is not cognizable under § 1983." Id. at 487.

As Plaintiff's conviction for violating section 148(a) has not been reversed, expunged, declared invalid, or called into question by the issuance of a writ of habeas corpus, he cannot pursue his § 1983 excessive force claim if it is based on theories that "necessarily imply the invalidity of his convictions or sentences." See Heck, 512 U.S. at 487. "In evaluating whether claims are barred by Heck, an important touchstone is whether a § 1983 plaintiff could prevail only by negating `an element of the offense of which he has been convicted.'" Cunningham v. Gates, 312 F.3d 1148, 1154 (9th Cir. 2002) (citing Heck, 512 U.S. at 487 n.6)).

The Supreme Court has recognized that a plaintiff convicted of resisting arrest would have to negate an element of the offense in order to prevail on a § 1983 excessive force claim against the arresting officer. Heck, 512 U.S. at 487 n.6. Ninth Circuit case law, however, illustrates that Heck does not bar all cases involving seemingly contradictory claims of resisting arrest and excessive force.

In Hooper v. County of San Diego, 629 F.3d 1127 (9th Cir. 2011), the Ninth Circuit held that Heck does not operate as a bar to recovery where a conviction under California Penal Code section 148(a)(1) and a § 1983 excessive force claim "are based on different actions during `one continuous transaction.'" Id. at 1134. In that case, the plaintiff had been detained by private security at a drug store. Id. at 1129. A deputy sheriff arrived at the scene, cited the plaintiff, and informed her that he was going to search her car. Id.

During that search, the deputy discovered what he believed to be methamphetamine. Id. When he approached the plaintiff, she jerked her hand away. Id. The deputy eventually subdued the plaintiff. Id. According to her, she struggled briefly with the deputy after they were on the ground, and she stopped resisting when the deputy instructed her to do so. Id. At some point, the deputy called upon his police canine. Id. The dog bit the plaintiff's head, lost its hold, then bit and held the plaintiff's head. Id. The dog released its bite when backup arrived. Id.

Plaintiff pled guilty to resisting a peace officer under California Penal Code section 148(a)(1), and brought suit under § 1983 for excessive force. Id. In that action, she did not dispute the lawfulness of her arrest, nor that she resisted arrest when she jerked her hand away. Id. The defendants moved for summary judgment and prevailed. Id. The district court held that Heck barred the plaintiff's excessive force claims. Id.

On appeal, the Ninth Circuit reversed. Id. at 1134. Applying the California Supreme Court's decision in Yount v. City of Sacramento,6 43 Cal.4th 885 (2008), it determined that:

Hooper, 629 F.3d at 1132. The Ninth Circuit thus concluded that "a conviction under California Penal Code § 148(a)(1) does not bar a § 1983 claim for excessive force under Heck when the conviction and the § 1983 claim are based on different actions during "one continuous transaction.'" Id. at 1134. It held that if the plaintiff were to prevail on her § 1983 excessive force claim, based on the use of the police dog, it would not negate the lawfulness of the initial arrest attempt, or negate the unlawfulness of her attempt to resist it when she jerked her hand away from the deputy. Id. at 1133. The Ninth Circuit clarified that two factual contexts can exist during one continuous transaction such that a successful § 1983 claim and a conviction for resisting arrest may coexist without running afoul of Heck. Id. at 1332.

Here, Plaintiff attempts to analogize the instant case to Hooper, but those efforts fail. Unlike Hooper, Plaintiff cannot divorce the conduct giving rise to his excessive force claim from the conduct giving rise to his conviction. As Officer Galios testified, Plaintiff was in the act of fleeing when the police canine subdued him. (RJN, Ex. B., Trial Tr. 140:10-143:14-17.)

In addition, the state court's jury instructions establish that the jury determined that Officer Galios was justified in deploying the police canine. Those instructions included the following:

(RJN, Ex. B, Trial Tr. 272:1-5 (emphasis added).) With these instructions in mind, the jury found Plaintiff guilty of violating California Penal Code section 148(a). (RJN, Ex. D, Verdict at 2.)

In light of this, the Court finds Defendant's reliance on a subsequent Ninth Circuit decision, Beets v. County of Los Angeles, 669 F.3d 1038, 1040 (9th Cir. 2012), more appropriate. In that case, two parents filed a § 1983 action, alleging that a sheriff's deputy used excessive force when he shot and killed their son. Id. Their son's accomplice had been convicted on several counts, including aiding and abetting in the assault on a peace officer with a deadly weapon. Id. The district court dismissed the action because Heck precluded the plaintiffs from attempting to show that the sheriff's deputy used excessive force. Id.

The Ninth Circuit affirmed. Id. It determined that there was no break between the assault on their deputy and the police response, but that the deputy's actions and the crime were "part of a single act for which the jury found that [the accomplice] bears responsibility." Id. at 1045. The Court of Appeals reasoned that because the jury that convicted his accomplice had already determined that the deputy acted within the scope of his employment and did not use excessive force, a civil judgment in favor of the plaintiffs would tend to undermine the accomplice's conviction. Id. The Ninth Circuit also noted: "a jury's verdict necessarily determines the lawfulness of the officers' actions throughout the whole course of the defendant's conduct, and any action alleging the use of excessive force would necessarily imply the invalidity of his conviction." Id. at 1045 (internal quotations, modifications, and citations omitted).

The jury verdict in the state court proceedings brings this case squarely in line with Beets. The jury's verdict resolves the issue Plaintiff attempts to relitigate here: whether Officer Galios acted lawfully when he deployed the police canine. Plaintiff's attempt to artfully plead facts that, if true, would be contrary to those upon which the state court jury convicted him fails. While Plaintiff believes that he can artfully plead such facts and thereby elude Heck, a judgment in favor of Plaintiff in this case would necessarily imply the invalidity of his conviction. It would require a determination that the conduct complained of in this case constituted excessive force though the state court jury has already found that such conduct was lawful. Consequently, Heck mandates dismissal of this action, both as to the City and as to any unnamed defendant officer.

IV. CONCLUSION

For the reasons set forth above, the City's motion for judgment on the pleadings is GRANTED.

IT IS SO ORDERED.