United States District Court, D. Nevada
M. Navarro, Chief Judge.
before the Court is the Motion for Judgment on the Pleadings,
(ECF No. 117), filed by Defendant Officer Steve Williams
(“Defendant”). Pro se Plaintiff Larry Barber
(“Plaintiff”) filed a Response, (ECF No. 123), and
Defendant filed a Reply, (ECF No. 124). Plaintiff also filed
a Surreply, (ECF No. 125). For the reasons discussed below,
the Court GRANTS Defendant's Motion.
case arises out of Defendant's arrest of Plaintiff.
Specifically, on January 31, 2012, Plaintiff jay-walked
across a street and entered the lobby of a hotel. (Fourth Am.
Compl. at 3- 4, ECF No. 103). Plaintiff alleges that while on
patrol, Defendant and his partner witnessed Plaintiff
jay-walk and followed him into the lobby to speak to him.
(Id. at 4).
Defendant asked to speak to Plaintiff, Plaintiff asserts that
his back was turned, and Plaintiff turned around to face
Defendant with his hand in his pocket. (Id. at 4-5).
Defendant asked Plaintiff to step out of the lobby, to which
Plaintiff responded, “For what?” (Id. at
5). Plaintiff alleges that Defendant then ordered Plaintiff
to remove his hand from his pocket and exit the hotel.
(Id.). After further argument, Plaintiff contends
that he went to remove his hand from his pocket, but first
informed Defendant that there was a pocketknife in his
pocket. (Id. at 6). Plaintiff alleges that a
struggle occurred between Plaintiff and Defendant with the
pocketknife, and Defendant eventually shot Plaintiff multiple
times. (Id. at 7).
was charged with the exchange for attempted murder with use
of a deadly weapon, resisting a public officer, carrying a
concealed firearm or other deadly weapon, and assault with a
deadly weapon. (Ex. D to Mot. for J. on the Pleadings
(“MJP”), ECF No. 117). Ultimately, Plaintiff
accepted a guilty plea agreement for the charges of resisting
a public officer and assault with a deadly weapon. (Ex. H to
instant action, Plaintiff asserts a § 1983 claim against
Defendant for violating Plaintiff's Fourth Amendment
right “to be free from physically intrusive
governmental conduct, specifically, the use of excessive
force in the seizure of his person.” (Fourth Am. Compl.
at 4). Plaintiff seeks, inter alia,
“compensatory damages in the amount of ten million
dollars, ” “punitive damages in the amount of ten
million dollars, ” and “declaratory judgment that
[D]efendant used ‘excessive force.'”
(Id. at 14).
Rule of Civil Procedure 12(c) provides that “[a]fter
the pleadings are closed- but early enough not to delay
trial-a party may move for judgment on the pleadings.”
Fed.R.Civ.P. 12(c). “Judgment on the pleadings is
properly granted when, accepting all factual allegations in
the complaint as true, there is no issue of material fact in
dispute, and the moving party is entitled to judgment as a
matter of law.” Chavez v. United States, 683
F.3d 1102, 1108 (9th Cir. 2012). Accordingly,
“[a]nalysis under Rule 12(c) is substantially identical
to analysis under Rule 12(b)(6) because, under both rules, a
court must determine whether the facts alleged in the
complaint, taken as true, entitle the plaintiff to a legal
order to survive a motion to dismiss under Rule 12(b)(6), a
complaint must allege “sufficient factual matter,
accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). “A claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. The
Court, however, is not required to accept as true allegations
that are merely conclusory, unwarranted deductions of fact,
or unreasonable inferences. See Sprewell v. Golden State
Warriors, 266 F.3d 979, 988 (9th Cir. 2001). A formulaic
recitation of a cause of action with conclusory allegations
is not sufficient; a plaintiff must plead facts showing that
a violation is plausible, not just possible. Iqbal,
556 U.S. at 678 (citing Twombly, 550 U.S. at 555).
a district court may not consider any material beyond the
pleadings in ruling on a Rule 12(b)(6) motion . . . .
However, material which is properly submitted as part of the
complaint may be considered on a motion to dismiss.”
Hal Roach Studios, Inc. v. Richard Feiner & Co.,
896 F.2d 1542, 1555 n.19 (9th Cir. 1990). Similarly,
“documents whose contents are alleged in a complaint
and whose authenticity no party questions, but which are not
physically attached to the pleading, may be considered in
ruling on a Rule 12(b)(6) motion to dismiss” without
converting the motion to dismiss into a motion for summary
judgment. Branch v. Tunnell, 14 F.3d 449, 454 (9th
Cir. 1994). Under Federal Rule of Evidence 201, a court may
take judicial notice of “matters of public
record.” Mack v. S. Bay Beer Distrib., 798
F.2d 1279, 1282 (9th Cir. 1986). Otherwise, if the district
court considers materials outside of the pleadings, the
motion to dismiss is converted into a motion for summary
judgment. See Fed. R. Civ. P. 12(d); Arpin v.
Santa Clara Valley Transp. Agency, 261 F.3d 912, 925
(9th Cir. 2001).
Fourth Amended Complaint, (ECF No. 103), alleges a single
violation of Plaintiff's Fourth Amendment Right “to
be free from physically intrusive governmental conduct,
specifically, the use of excessive force in the seizure of
his person.” (Fourth Am. Compl. at 4). Defendant seeks
judgment on the pleadings “because Plaintiff's
action is barred by Heck v. Humphrey.” (MJP
1:19-20, ECF No. 117).
to Heck v. Humphrey, 512 U.S. 477 (1994), a §
1983 action that challenges the validity of a plaintiff's
criminal conviction or confinement is not cognizable unless
the plaintiff can prove that his or her sentence has been
reversed, expunged, declared invalid, or called into question
by the issuance of a writ of habeas corpus. Heck,
512 U.S. at 486-87. “Heck, in other words,
says that if a criminal conviction stands and is
fundamentally inconsistent with the unlawful behavior for
which section 1983 damages are sought, the 1983 action must
be dismissed.” Smithart v. Towery, 79 F.3d
951, 952 (9th Cir. ...