Cobin v. Phoenix, City of ( 2020 )

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 Joshua Cobin, ) No. CV-19-04392-PHX-SPL ) 9 ) 10 Plaintiff, ) ORDER vs. ) ) 11 ) City of Phoenix, et al., ) 12 ) 13 Defendants. ) ) 14 ) 15 16 Before the Court is Defendant Christopher Turiano’s (“Turiano”) Motion to Dismiss 17 (“Motion”) (Doc. 17), which is fully briefed. For the reasons that follow, the motion will 18 be granted with prejudice. 19 I. Background 20 Plaintiff Joshua Cobin (“Cobin”) initiated this action on June 6, 2019. The 21 complaint initially named the City of Phoenix and other Defendants, bringing four claims 22 for relief. Plaintiff filed a first amended complaint (“FAC”) on July 26, 2019 which 23 contains one claim for relief against Defendant Christopher Turiano alone, and does not 24 mention any other previously named Defendant. (Doc. 16) 25 In the FAC, Plaintiff alleges that on the evening of August 22, 2017, he was 26 participating in a peaceful protest during President Trump’s visit at the Phoenix 27 Convention Center. (Doc. 16 at 3, ¶¶ 5-6) At one point during the evening, Plaintiff alleges 28 that members of the Phoenix Police Department wearing riot gear started marching toward 1 the crowd without proffering any order to disperse or leave the area. (Doc. 16 at 3, ¶ 7) 2 Shortly thereafter, Plaintiff alleges that the police officers began shooting less-lethal 3 ammunitions and tear gas toward the protesters. (Doc. 16 at 3-4, ¶¶ 8,11) Plaintiff, wearing 4 a gas mask, kicked back a gas cannister away from the crowd and in the police officers’ 5 direction. (Doc. 16 at 3-4, ¶ 11) Defendant Turiano then shot a less-lethal ammunition, 6 more commonly known as a “pepper ball round,” toward Plaintiff, hitting him the genital 7 area. (Doc 16 at 4 ¶¶ 14-16) Plaintiff drove himself to a hospital emergency room following 8 the encounter where he was treated for exposure to chemical agents from the tear gas and 9 for the pain and bruising caused by the “pepper ball round.” (Doc. 16 at 4-5, ¶ 17) 10 Following the incident, Plaintiff took to social media and identified himself as the 11 individual who was broadcasted on television kicking back gas cannisters at the police and 12 being shot by a police officer during the protest. (Doc. 17 Ex. 1) This led to Plaintiff’s 13 arrest and indictment for two counts of aggravated assault and one count of unlawful 14 assembly. (Doc. 17 Exs. 2, 3) Plaintiff pled guilty to a reduced charge of disorderly 15 conduct, a class 1 misdemeanor, in violation of Arizona Revised Statutes (“A.R.S”) §§ 13- 16 2904, 13-2901, 13-707, and 13-802. (Doc. 17 Ex. 4) Plaintiff alleges that Defendant 17 Turiano used excessive force in violation of Plaintiff’s Fourth and Fourteenth Amendment 18 rights when firing a “pepper ball round” which resulted in physical and reputational 19 damages. 20 II. Standard of Review 21 Rule 8(a)(2) requires a “short and plain statement of the claim showing that the 22 pleader is entitled to relief,” so that the defendant has “fair notice of what the … claim is 23 and the grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) 24 (internal quotations omitted). Also, a complaint must contain sufficient factual matter, 25 which, if accepted as true, states a claim to relief that is “plausible on its face.” Ashcroft v. 26 Iqbal, 556 U.S. 662, 678 (2009). Facial plausibility exists if the pleader pleads factual 27 content that allows the court to draw the reasonable inference that the defendant is liable 28 for the misconduct alleged. Id. Plausibility does not equal “probability,” but plausibility 1 requires more than a sheer possibility that a defendant acted unlawfully. Id. “Where a 2 complaint pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops 3 short of the line between possibility and plausibility of entitlement to relief.’” Id. (citing 4 Twombly, 550 U.S. at 557). 5 Although a complaint attacked for failure to state a claim does not need detailed 6 factual allegations, the pleader’s obligation to provide the grounds for relief requires “more 7 than labels and conclusions, and a formulaic recitation of the elements of a cause of action 8 will not do.” Twombly, 550 U.S. at 555 (internal citations omitted). Rule 8(a)(2) “requires 9 a ‘showing,’ rather than a blanket assertion, of entitlement to relief. Without some factual 10 allegation in the complaint, it is hard to see how a claimant could satisfy the requirement 11 of providing not only ‘fair notice’ of the nature of the claim, but also ‘grounds’ on which 12 the claim rests.” Id. (citing 5 C. Wright & A. Miller, Federal Practice and Procedure § 13 1202, pp. 94, 95 (3d ed. 2004)). Thus, Rule 8’s pleading standard demands more than “an 14 unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 556 U.S. at 678 15 (citing Twombly, 550 U.S. at 555). 16 In deciding a motion to dismiss the Court must construe the facts alleged in the 17 complaint in the light most favorable to the drafter of the complaint and must accept all 18 well-pleaded factual allegations as true. OSU Student Alliance v. Ray, 699 F.3d 1053, 1061 19 (9th Cir. 2012); Shwarz v. United States, 234 F.3d 428, 435 (9th Cir. 2000). Nonetheless, 20 the Court does not have to accept as true a legal conclusion couched as a factual allegation. 21 Papasan v. Allain, 478 U.S. 265, 286 (1986). 22 Furthermore, a motion to dismiss under Rule 12(b)(6) must rely solely on the 23 contents of the pleadings. See Fed. R. Civ. P. 12(d). A court may, however, consider 24 “matters of judicial notice” without converting a motion to dismiss into one for summary 25 judgment. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). Furthermore, a court 26 need not accept as true “allegations that contradict matters properly subject to judicial 27 notice” or “allegations that are merely conclusory, unwarranted deductions of fact, or 28 unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 1 2008) (internal quotation marks and citations omitted). 2 A court may take judicial notice of documents referenced in the complaint, as well 3 as matters in the public record. Lee v. City of Los Angeles, 250 F.3d 668, 688–89 (9th Cir. 4 2001), overruled on other grounds by Galbraith v. Cty. of Santa Clara, 307 F.3d 1119, 5 1125–26 (9th Cir. 2002). In addition, the Court may take judicial notice of matters that are 6 either “generally known within the trial court’s territorial jurisdiction” or “can be 7 accurately and readily determined from sources whose accuracy cannot reasonably be 8 questioned.” Fed. R. Evid. 201(b). Public records, including judgments and other court 9 documents, are proper subjects of judicial notice. See, e.g., United States v. Black, 482 F.3d 10 1035, 1041 (9th Cir. 2007). However, “[j]ust because the document itself is susceptible to 11 judicial notice does not mean that every assertion of fact within that document is judicially 12 noticeable for its truth.” Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 999 (9th Cir. 13 2018). 14 III. Analysis 15 A. Facts Considered and Judicial Notice 16 The Court first addresses the issue of judicial notice and the facts it considered in 17 ruling on the Motion. Defendant does not clearly state what grounds the Motion is based 18 on, but the Court reads the Motion as one made under Rule 12(b)(6) for failure to state a 19 claim upon which relief can be granted and applies the corresponding standard of review. 20 Plaintiff does not dispute that he pled guilty to disorderly conduct in violation of A.R.S. §§ 21 13-2904, 13-2901, 13-707, and 13-802. Although Plaintiff’s plea agreement was not 22 attached to or referenced in the FAC, it was attached to the Motion to Dismiss (Doc. 17- 23 5), and the Court can properly take judicial notice of records and judgments in other courts. 24 Black, 482 F.3d at 1041. 25 B. The Application of the Heck Doctrine 26 The Court next addresses the argument on the application of the Heck doctrine and 27 finds it dispositive of the Motion. In Heck v. Humphrey, the Supreme Court held that 28 in order to recover damages . . . for other harm caused by actions whose unlawfulness 1 would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the 2 conviction or sentence has been reversed on direct appeal, expunged by executive order, 3 declared invalid by a state tribunal authorized to make such determination, or called into 4 question by a federal court’s issuance of a writ of habeas corpus, 28 U.S.C. § 2254. 5 512 U.S. 477, 486-87 (1994). The Court noted in dicta that an example of a § 1983 action 6 whose successful prosecution would necessarily imply that plaintiff’s conviction was 7 wrongful would be one where a defendant is sentenced for the crime of resisting arrest, 8 “defined as intentionally preventing a peace officer from effecting a lawful arrest . . . . 9 [t]hen brings a § 1983 action against the arresting officer seeking damages for a violation 10 of his constitutional rights to be free from unreasonable seizures.” Id. at 486 n.6. The Court 11 concluded that the plaintiff would have to negate one of the elements of the offense of 12 which he was convicted to prevail in the § 1983 action and that, as a result, such action 13 could not survive dismissal. Id. 14 Additionally, in Smith v. City of Hemet, the Ninth Circuit reasoned that under Heck, 15 a plaintiff convicted in state court could bring, and maintain, a subsequent § 1983 action 16 for use of excessive force if such use occurred subsequent to the conduct on which his 17 conviction was based. 394 F.3d 689, 698 (9th Cir. 2005) (en banc) (emphasis in original). 18 See also Musselman v. Meelhuysen, 773 Fed. Appx. 417, 418-19 (9th Cir. 2019) (quoting 19 Beets v. County of Los Angeles and Smith in reasoning that if the use of force by police 20 took place after the plaintiff’s criminal activity had ended, then the § 1983 action for use 21 of excessive force could proceed and should not be dismissed under Heck); Beets v. County 22 of Los Angeles, 669 F.3d 1038, 1044-45 (9th Cir. 2012) (citing Smith in support of the 23 reasoning that a § 1983 action for use of excessive force cannot survive if the alleged 24 excessive use of force arose during the course of plaintiff’s criminal activity and brought 25 such activity to an end). 26 Finally, in determining if the Heck doctrine requires dismissal of Plaintiff’s § 1983 27 action for use of excessive force, the Court must determine if it can ascertain the factual 28 basis for the guilty plea to the state court offense. In Smith, the Ninth Circuit cited Sanford 1 v. Motts, 258 F.3d 1117 (9th Cir. 2001) in trying to ascertain what the factual basis for Mr. 2 Smith’s guilty plea was. Smith, 394 F.3d at 698. The Court was unable to ascertain whether 3 Mr. Smith had pled guilty based on actions that impeded the officers’ investigation prior 4 to his arrest or his subsequent resistance to their physical attempt to arrest him, or both. Id. 5 The Court concluded that because it could not determine the factual basis for the plea, his 6 § 1983 action “[did] not necessarily imply the invalidity of his conviction and therefore 7 [was] not barred by Heck.” Id. at 699 (emphasis in original). See also Sanford, 258 F.3d at 8 1119-20 (9th Cir. 2001) (holding that because there were a variety of accusations against 9 the plaintiff which could have formed the basis for the conviction and because the 10 challenged conduct was not necessarily the predicate for his plea, Sanford’s § 1983 suit did 11 not necessarily imply the invalidity of the conviction) (emphasis in original). 12 In this case, Plaintiff argues that there was no finding as to which sub-section in 13 A.R.S. § 13-2904 he pled guilty to. (Doc. 18 at 8) As a result, Plaintiff argues that the 14 various statements contained in the plea agreement and the sentencing order cannot 15 therefore be noticed for their truth by the Court and that the Court can only take notice of 16 a plea agreement to disorderly conduct. (Doc. 18 at 8) The Court finds this argument 17 unpersuasive. The Court can take judicial notice of the language of a state criminal statute 18 because such statutes are “generally known within the trial court’s territorial jurisdiction” 19 and “can be accurately and readily determined from sources whose accuracy cannot 20 reasonably be questioned.” Fed. R. Evid. 201(b). The text of a criminal statute fits such 21 definition and the parties are not disputing the text of the statutes referenced in the plea 22 agreement and sentencing order. In this instance, the plea agreement and sentencing order 23 specifically listed A.R.S. § 13-2901 as part of the committed offense. That section is a 24 definition section and contains two definitions: one for “marijuana” and one for “public.” 25 A.R.S. § 13-2901. The only applicable definition to Plaintiff’s guilty plea in relation to 26 A.R.S. § 13-2904 is the one of “public.” Turning to A.R.S. § 13-2904, and its six sub- 27 sections, this Court notes that only one of such sub-sections uses the word “public,” sub- 28 section (5). See A.R.S. § 13-2904(5) (“Refuses to obey a lawful order to disperse to 1 maintain public safety in dangerous proximity to fire, a hazard, or any other emergency.”) 2 Accordingly, the Court finds there is no possible doubt that Plaintiff pled guilty to violating 3 A.R.S. § 13-2904(5).1 The facts alleged by Plaintiff that he did not receive a lawful order 4 to disperse and did not disobey such order are directly contradictory to his plea agreement 5 and violate the Heck doctrine. 6 Indeed, the only possible basis for Plaintiff’s guilty plea is that he disobeyed a lawful 7 order to disperse in violation of A.R.S. §§ 13-2901 and 13-2904. This is not like Smith or 8 Sanford where a court could not determine the factual basis for the plea. 9 Plaintiff’s refusal to obey a lawful order to disperse was the cause of Officer 10 Turiano’s actions to fire a “pepper ball round” and such action brought Plaintiff’s criminal 11 activity to an end. Indeed, Plaintiff himself admitted that the round inflicted great pain and 12 that he drove himself to the hospital emergency room soon thereafter. (Doc. 16 at 4-5, ¶ 13 17) This is clearly within the scenario contemplated by Smith, Beets, and Musselman where 14 a § 1983 action for use of excessive force must be dismissed because of the lack of any 15 temporal gap between the criminal activity and the actions which allegedly violated 16 Plaintiff’s constitutional rights. Plaintiff further relies on Musselman and Byrd to argue that 17 Heck does not bar his excessive force claim. The Court finds both cases to be 18 distinguishable. 19 In Musselman, Plaintiff pled guilty to placing a police officer in reasonable 20 apprehension of imminent physical injury and later brought a § 1983 action alleging use of 21 excessive force during his arrest. Musselman, 773 Fed. Appx. 417, 418. The court clearly 22 agreed with the District Court that any theory based on his alleged peaceful and cooperative 23 behavior were barred by Heck because they contradicted his guilty plea. Id. The court then 24 held that any theory of liability alleging use of excessive force after the conduct that formed 25 the basis for the conviction would not be barred by Heck. Id. This is not the case here. 26 1 The Court also notes that Plaintiff has not made any argument challenging his plea 27 agreement based on a lack of understanding of the offense, and its elements, he pled guilty to. The Court is also not aware of any other proceedings challenging the validity of the plea 28 agreement. 1 Plaintiff’s refusal to obey a lawful order to disperse is the factual basis for his guilty plea 2 and Plaintiff is now arguing that he never received such an order and did not refuse to 3 disperse. 4 In Byrd, Byrd pled guilty to conspiracy to commit possession of a dangerous drug 5 and later brought a § 1983 action alleging illegal search and use of excessive force by police 6 officers. Byrd v. City of Phoenix, 885 F.3d 369, 640-41 (9th Cir. 2018). The court held that 7 the civil suit could proceed because it “concerns allegations that the police illegally 8 searched his person and used excessive force on him—after they discovered the drugs, for 9 all we know—which has nothing to do with the evidentiary basis for his conspiracy 10 conviction.” Id. at 645. The court also quoted Beets for the proposition that “an allegation 11 of excessive force by a police officer would not be barred by Heck if it were distinct 12 temporally or spatially from the factual basis for the person’s conviction.” Id. This case is 13 clearly distinguishable from Byrd because the factual basis for Plaintiff’s guilty plea is not 14 distinct either temporally or spatially from the factual basis for his claim of use of excessive 15 force. 16 Finally, Plaintiff’s assertions in the FAC directly challenge the factual basis for his 17 guilty plea, in violation of Heck. Plaintiff asserts in the FAC that the police never gave 18 notice to the protestors of an unlawful assembly or order to disperse. (Doc. 16 at 3, ¶ 7) 19 This is precisely, and unequivocally, what Plaintiff pled guilty to: “refusing to obey a 20 lawful order to disperse issued to maintain public safety.” (Doc. 17 Ex. 4) One of the 21 elements of the statute is that the order to disperse was “lawful.” A.R.S. § 13-2904. If 22 Plaintiff succeeded on his § 1983 action on the facts asserted, it would necessarily 23 invalidate and call into question his guilty plea, in violation of Heck. Furthermore, even 24 under the standard of review of the FAC under Rule 12(b)(6), the Court cannot accept those 25 factual allegations as true when they directly contradict Plaintiff’s guilty plea. Taking the 26 allegations that Plaintiff never received an order to disperse and did not refuse such an 27 order out of the FAC because they are barred under Heck and In re Gilead, the Court is left 28 with a complaint which does not meet the pleading standard sufficient to survive 1| Defendant’s Motion to Dismiss. 2 Therefore, the FAC must be dismissed with prejudice.” 3 IT IS ORDERED that Defendant Turiano’s Motion to Dismiss (Doc. 17) is 4| granted. The First Amended Complaint is dismissed with prejudice in its entirety. 5 IT IS FURTHER ORDERED that the Clerk of Court shall terminate this action and enter judgment accordingly. 7 Dated this 19th day of February, 2020. 8 9 xX LK a2 □□ 10 Honorable Steven P. Légan United States District Judge 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 206, 00 17 Because this Court finds that the application of the Heck doctrine supports granting Defendant’s Motion to Dismiss, it does not address other arguments made by the parties, 28 such as the application of the qualified immunity doctrine or the merits of the excessive force claim.