REPORT AND RECOMMENDATION

BRIAN A. TSUCHIDA, Magistrate Judge.

Pursuant to Fed. R. Civ. P. 12(b)(6), defendants Michael Breiner, Shawn Mikkelsen, and Ricky Hubl move for dismissal of Plaintiff Adan Ibrahim Yusuf's 42 U.S.C. § 1983 complaint based on the Heck doctrine. See Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). Mr. Yusuf has failed to file papers in opposition to the motion. The undersigned recommends that the complaint be dismissed without prejudice.

FACTS

In his sworn complaint, Mr. Yusuf alleges that on March 25, 2016, the defendants assaulted him and used excessive force when he was being placed into a holding cell after a court hearing at the Maleng Regional Justice Center in Kent. Dkt. 13 at 3 (Statement of Claim); Dkt. 12 at 1:22-2:3. Mr. Yusuf states that he was minding his own business and just trying to keep a cell door open "gently" with his foot when Officer Breiner inexplicably grabbed Mr. Yusuf, began "almost choking" him, pulled him out of the cell, pushed him onto the floor and then began punching Mr. Yusuf in the nose, while he was in a "choke hold." Dkt. 13 at 3. Mr. Yusuf also alleges that Officer Mikkleson and other correction officers knocked him to the floor, kicked his neck, smashed his face on the ground, and that Sgt. Huble "Tased" him twice. Id. Mr. Yusuf repeatedly asserts that he was never resisting the officers and that Officer Breiner intentionally assaulted him when he "wasn't resisting and [he] was on the floor. Id. at 3-4. Mr. Yusuf contends that this assault and use of excessive force violated his Eighth Amendment rights. Id. at 5-6.

King County Superior Court records reflect, however, that Mr. Yusuf pleaded guilty to misdemeanor assault and harassment of Officer Breiner, arising out of the March 25, 2016 incident. Dkt. 20-1, Declaration of Endel Kolde, Exhibit A at 111. The Court takes judicial notice of court filings and other matters of public record, especially when the court pleadings reflect prior litigation involving the same party, without converting a Fed. R. Civ. P. 12(b)(6) motion to dismiss into a summary judgment. See Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006); Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001)2.

The certification for determination of probable cause supporting the filing of Assault Fourth Degree and Harassment charges against plaintiff include facts that are fundamentally inconsistent with the alleged unlawful behavior for which Mr. Yusuf seeks section 1983 damages. See Dkt. 20-1, Declaration of Endel Kolde, Ex. A at 19-21. The officers asserted that Mr. Yusuf kicked a cell door as he was being placed in a holding cell after court. Id. at 19. When he refused to step out of the cell, Officer Breiner grabbed Mr. Yusuf's uniform sleeve and directed him to exit the cell. Mr. Yusuf then swung at Officer Breiner with a closed fist and continued punching him in the chest and abdomen. Officer Breiner pulled Mr. Yusuf out of the cell and onto the floor with Mr. Yusuf landing on top of him. Other officers, including Sergeant Hubl and Officer Mikklesen, arrived to assist Officer Breiner and Mr. Yusuf continued to resist attempts to control him and attempted to punch and kick the officers. Id. After warning Mr. Yusuf, Sgt. Hubl deployed a Taser against Mr. Yusuf. Id. at 19-20. When Mr. Yusuf continued to resist, Sgt. Hubl deployed the Taser again. Id. at 20. Some of the officers eventually handcuffed Mr. Yusuf and transported him to Harborview Medical Center for treatment. Id.

Immediately after the incident, Mr. Yusuf threatened to kill all the cops and corrections officers when he got out of jail. Later, at Harborview, he stated, "There are two possible outcome to this incident, either King County, Washington State pay me for my injuries or I'm going to put a bullet in Officer Breiner's head." Id. It is further noted in the Certification for Determination of Probable Cause, that Mr. Yusuf committed custodial assault and that the threats he made were in response to actions and decisions made by Officer Michael Breiner during the performance of Officer Breiner's official duties. Dkt. 20-1 at 21.

At the time of the March 25, 2016 incident, Mr. Yusuf was awaiting trial on felony charges involving the stabbing of Anzor Lomanov in 2014. On May 20, 2016, in a plea deal that encompassed his underlying felony counts, Mr. Yusuf also pleaded guilty to misdemeanor assault and harassment of Officer Breiner, arising out of the March 25, 2016 incident. Dkt. 20-1, Exhibit A at 4-12; 13-16. In his Statement of Defendant on Plea of Guilty, Mr. Yusuf stated:

Id. at 11.

Mr. Yusuf was sentenced for the misdemeanor assault and harassment crimes on June 17, 2016. Id., Ex. B. There is no evidence in the record that these convictions have been overturned.

DISCUSSION

Defendants contend that Mr. Yusuf's 42 U.S.C. § 1983 complaint is barred by the Heck preclusion doctrine. Dkt. 20 at 4. Under the doctrine, "if a criminal conviction arising out of the same facts stands and is fundamentally inconsistent with the unlawful behavior for which section 1983 damages are sought, the 1983 action must be dismissed." Smith v. City of Hemet, 394 F.3d 689, 695 (9th Cir. 2005) (quoting Smithart v. Towery, 79 F.3d 951, 952 (9th Cir. 1996)); see Heck v. Humphrey, 512 U.S. 477, 489-87 (1994). Consequently, a claim for excessive force by a police officer may be barred where the plaintiff was previously convicted of assaulting that police officer within the same time period as the alleged excessive force. See Beets v. Cty. of Los Angeles, 669 F.3d 1038, 1045 (9th Cir. 2012).

The Heck preclusion doctrine also covers the claims of non-convicted individuals, whose civil rights claims clash with another's undisturbed criminal conviction. Beets v. Cty. of Los Angeles, 669 F.3d 1038, 1046 (9th Cir. 2012). If the plaintiff must prove facts that are fundamentally inconsistent with a conviction, Heck bars the claim.

The Court finds that the Heck doctrine applies here. Mr. Yusuf pleaded guilty to Assault in the Fourth Degree (of Officer Breiner), in violation of Wash. Rev. Code § 9A.36.041 and Harassment (of Officer Breiner), in violation of Wash. Rev. Code § 9A.46.020(1) involving the altercation that occurred on March 25, 2016. Dkt. 20-1 (Kolde Decl.) at 28. Accordingly, a judgment in Mr. Yusuf's favor in this case — where he claims that Officer Breiner and other officers assaulted him and used excessive force during the March 25, 2016 altercation, would necessarily imply the invalidity of his criminal convictions. See Garcia v. Lewis, No. 12-CV-3104-TOR, 2014 WL 1648470, at *3 (E.D. Wash. Apr. 23, 2014) (Heck doctrine barred plaintiff from bringing § 1983 claim for assault stemming from same facts as gave rise to his prior conviction for custodial assault in violation of Wash. Rev. Code § 9A.36.100(1)(b)); Germain v. City of Seattle, C13-1239 RAJ, 2016 WL 3017704 at 3 (W.D. Wash. May 25, 2016) (Heck doctrine barred the excessive force and assault claims against an arresting police officer where the plaintiff had previously pleaded guilty to assaulting the officer while she was acting in her official capacity). See also, Curry v. Baca, 371 F. App'x 733, 733-34 (9th Cir. 2010) (Heck bar applies where officers' use of force was part of a single act for which jury had found plaintiff bore responsibility).

Mr. Yusuf's claims arose out of the same conduct for which he has been convicted. However, in his sworn complaint, Mr. Yusuf alleges unilateral use of force, where Officer Breiner and the other officers allegedly attacked Mr. Yusuf for no reason even though he offered no resistance and did not fight back. This version of the events of March 25, 2016 is fundamentally inconsistent with Mr. Yusuf's plea to the assault of Officer Breiner. Based on the foregoing standards and viewing the allegations of Mr. Yusuf's complaint in the light most favorable to him, the undersigned concludes that Mr. Yusuf cannot pursue a § 1983 action because he has not demonstrated that his conviction or sentence has been invalidated. A judgment in favor of Mr. Yusuf in this case — i.e., that Officer Breiner and other offices assaulted him would necessarily imply the invalidity of his convictions for assaulting and harassing Officer Breiner. Such a claim is barred by Heck.

Accordingly, the Court recommends that Defendants' motion to dismiss (Dkt. 20) be GRANTED and this lawsuit be dismissed without prejudice. Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir.1995) (per curiam) (Heck-barred claims must be dismissed without prejudice so that the plaintiff may "reassert his claims if he ever succeeds in invalidating his conviction.").

OBJECTIONS AND APPEAL

This Report and Recommendation is not an appealable order. Therefore a notice of appeal seeking review in the Court of Appeals for the Ninth Circuit should not be filed until the assigned District Judge enters a judgment in the case. Objections, however, may be filed and served upon all parties no later than Thursday, January 5, 2017. The Clerk should note the matter for Monday, January 9, 2017, as ready for the District Judge's consideration if no objection is filed. If objections are filed, any response is due within 14 days after being served with the objections. A party filing an objection must note the matter for the Court's consideration 14 days from the date the objection is filed and served. The matter will then be ready for the Court's consideration on the date the response is due. Objections and responses shall not exceed 12 pages. The failure to timely object may affect the right to appeal.