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STEWART v. CITY OF SAN JOSE

United States District Court, Northern District of California


April 14, 2003

MARCUS ALLEN STEWART, PLAINTIFF(S),
v.
CITY OF SAN JOSE, ET AL., DEFENDANT(S).

The opinion of the court was delivered by: Charles R. Breyer, United States District Judge

ORDER (Doc # 44)
Per order filed on January 7, 2003, the court denied defendants' motion for summary judgment as to plaintiffs Fourth Amendment claim for damages for use of excessive force during the course of his arrest against defendants San Jose Police Officers Kurt Lundquest, Manuel Guerrero and Robert Fisher, and granted the motion as to all other defendants and claims.

Defendants Lundquest, Guerrero and Fisher subsequently moved for summary judgment on the ground that plaintiffs actions during the course of his arrest resulted in his conviction for resisting an officer in the performance of his duties in violation of California Penal Code section 69, and that the conviction bars plaintiffs remaining Fourth Amendment claim for damages for use of excessive force during arrest under the rationale of Heck v. Humphrey, 512 U.S. 477 (1994). Plaintiff did not file an opposition.

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 tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus. Heck v. Humphrey, 512 U.S. 477, 486-87 (1994). A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983. Id. at 487.

Defendants' motion for summary judgment (doc # 44) is GRANTED as to Officer Guerrero because it is undisputed that plaintiffs actions during the course of his arrest resulted in his conviction for resisting Officer Guerrero in the performance of his duties in violation of California Penal Code section 69, and that the conviction has not yet been invalidated. See. e.g., Green v. Dunburgh, No. C 01-2437 CRB (PR), 2002 WL 1067812, at *3 (N.D. Cal. May 24, 2002) (claim for damages against police officer for use of excessive force during course of arrest barred by Heck because determination that the officer used excessive force would impermissibly imply that plaintiffs conviction for resisting the officer under California Penal Code section 69 is invalid). The motion is DENIED as to Officers Lundquest and Fisher, however, because plaintiff was not convicted of resisting those officers under section 69. See id. at *4 (plaintiffs excessive force claim against second officer not barred by Heck because plaintiff was not convicted under section 69 of resisting second officer in the performance of his duty).

Plaintiffs remaining Fourth Amendment claim for damages against Officers Lundquest and Fisher is nonetheless DISMISSED without prejudice under the Civil Local Rule 3-11 because the court has not received any communication from plaintiff indicating a current address since the court's January 7, 2003 mail to plaintiff was returned to the court as undeliverable on January 17, 2003. See Civil L. R. 3-11(b) (court may dismiss action without prejudice when mail directed to attorney or pro se party by the court is returned to the court as undeliverable and the court fails to receive within 60 days of this return a written communication from the attorney or pro se party indicating a current address).

The clerk shall enter judgment in accordance with this order (i.e., enter judgment in favor of all defendants except for plaintiffs excessive force claim against Officers Lundquest and Fisher, which is dismissed without prejudice) and close the file.

S0 ORDERED.

20030414

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