The opinion of the court was delivered by: Claudia Wilken United States District Judge
ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS, DISMISSING ACTION AND TERMINATING ALL PENDING MOTIONS (Docket nos. 5, 6)
Plaintiff Michael A. Al'Faro is a prisoner of the State of California who is confined at San Quentin State Prison. He has filed this civil rights actions under 42 U.S.C. § 1983 in which he seeks leave to proceed in forma pauperis. Venue is proper in this district as the acts complained of occurred in Monterey County.
Plaintiff claims that officers of the Gilroy Police Department used excessive force against him during the course of his arrest. Thereafter, Plaintiff pled nolo contendere to charges of resisting arrest. He seeks monetary damages.
A federal court must conduct a preliminary screening in any case in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or seek monetary relief from a defendant who is immune from such relief. Id. § 1915A(b)(1), (2).
To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of State law. West v. Atkins, 487 U.S. 42, 48 (1988). "'[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Terracom v. Valley National Bank, 49 F.3d 555, 558 (9th Cir. 1995) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). Pro se pleadings must be liberally construed. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988).
Plaintiff seeks damages for the alleged violation of his constitutional rights in connection with his arrest. 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 42 U.S.C. § 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, 486-487 (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.
When a State prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. Id. The court should not stay any § 1983 claim for damages implicating the validity of a criminal conviction or sentence until criminal proceedings are completed. Edwards v. Balisok, 520 U.S. 641, 649 (1997). Heck makes it clear that a § 1983 "cause of action for damages attributable to an unconstitutional conviction or sentence does not accrue until the conviction or sentence has been invalidated." Heck, 512 U.S. at 489-90 (footnote omitted). Any such claim is not cognizable and therefore should be dismissed. See Edwards, 520 U.S. at 649; Butterfield v. Bail, 120 F.3d 1023, 1025 (9th Cir. 1997) (claim barred by Heck may be dismissed under Rule 12(b)(6)); Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995) (claim barred by Heck may be dismissed sua sponte without prejudice under 28 U.S.C. § 1915).
Plaintiff alleges that excessive force was used against him during his arrest and also that he was charged with, and ended up pleading nolo contendere to, resisting arrest. In California, a conviction for resisting arrest pursuant to California Penal Code § 148 may be lawfully obtained only if the officers do not use excessive force in the course of making that arrest. Smith v. City of Hemet, 394 F.3d 689, 696 (9th Cir. 2005) (en banc). Thus, if a plaintiff has a § 148 conviction based on acts of resistance during the course of arrest, Heck bars claims that the police officers used excessive force during the course of that arrest. Id. at 697. Because Plaintiff's excessive force claim would, if meritorious, imply the invalidity of his State arrest, detention and ...