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Radwan v. County of Orange

August 18, 2010


The opinion of the court was delivered by: Andrew J. Guilford United States District Judge


Plaintiff Joshua Rashid Radwan ("Plaintiff") asserts civil rights and related claims arising from his interactions with law enforcement officers. Defendants James Fouste ("Fouste"), Sean Hilliard ("Hilliard"), Matthew Prince, ("Prince"), Mark Kunar ("Kunar"), Mark Hergesheimer ("Hergesheimer"), Ira Essoe ("Essoe"), Michael Padilla ("Padilla"), Manuel Garcia ("Garcia"), Cyril Foster ("Foster"), David Hernandez ("Hernandez"), and Jarrett Kurimay ("Kurimay") (collectively "Individual Defendants") filed a "Motion for Summary Judgment and/or in the Alternative Summary Adjudication" ("Individuals' Motion"). Defendants County of Orange ("County") and Michael Carona ("Carona") also filed a "Motion for Summary Judgment and/or in the Alternative Summary Adjudication" ("County's Motion").

The Court GRANTS IN PART and DENIES IN PART the Individual Defendants' Motion and GRANTS the County's Motion.


Much of the evidence is disputed. As it must for this Motion, the Court views the evidence in the light most favorable to Plaintiff. The following largely reflects the Plaintiff's version of the facts.

Plaintiff and his girlfriend Cassandra Fults ("Fults") were next to Plaintiff's Range Rover in a parking lot off of Paseo de Colinas. (Plaintiff's Second Amended Statement of Material Facts in Dispute ("PSMF") ¶¶ 3-4.) All was not well. "Fults was crying hysterically," and Plaintiff kicked his tire while talking to her. (PSMF ¶ 5-6.) Around the same time, some of the officer Defendants heard a dispatch call "requesting deputies respond to the area of Paseo de Colinas . . . regarding a report that a person was being kicked by another person next to a Range Rover." (PSMF ¶ 7.)

Fouste arrived at Paseo de Colinas to find Plaintiff and Fults next to Plaintiff's Range Rover. (PSMF ¶¶ 8-9.) He then interacted with Plaintiff and ended up searching Plaintiff's pockets. (Declaration of James Fouste ("Fouste Decl.) ¶¶ 8-11.) The search revealed marijuana and pepper spray. (PSMF ¶¶ 11, 17.)

Around the time Fouste searched Plaintiff, Deputies Hillard, Prince, and Kunar arrived at the scene. (PSMF ¶¶ 14-15, 19.) Prince searched Plaintiff's Range Rover and found three knives and a bit more marijuana. (PSMF ¶¶ 23-24.)

After the search, things got physical. Among other things, Plaintiff was roughly put into tight handcuffs and leg irons, (Declaration of Joshua Rashid Radwan ("Radwan Decl.") ¶¶ 46, 50), his face was shoved into the hood of a car, (Radwan Decl. ¶ 63), an officer repeatedly kicked the chains of Plaintiff's leg restraints, (Radwan Decl. ¶ 63), and Plaintiff was taken to the ground and shot with a Taser, (Radwan Decl. ¶¶ 67-69). Defendants claim that Plaintiff was resisting.

The officers also discovered (through a computer database) that Plaintiff was subject to a protective order, though there was some confusion about what, precisely, the protective order said. (PSMF ¶¶ 32-33.) Regardless, the Deputies decided to take Plaintiff to jail and book him for violating the protective order by possessing the knives. (PSMF ¶ 37.)

At the jail, things again got physical. Two officers pulled Plaintiff from a patrol car. (Radwan Decl. ¶ 81.) Plaintiff had great difficulty walking because the leg restraints hurt him, and the officers refused to loosen Plaintiff's leg irons despite Plaintiff yelling in pain. (Radwan Decl. ¶¶ 83-85.) After Plaintiff could walk no more, two officers grabbed Plaintiff by his upper arms and one grabbed him by the chain of his leg restraints to carry Plaintiff into the jail. (Radwan Decl. ¶ 88.)

Things didn't get much better from there. One officer stood and stepped on Plaintiff's leg chains. (Radwan Decl. ¶ 89.) Some officers carried Plaintiff upside down by holding his arms backwards behind him and holding the chain of his leg restraints. (Radwan Decl. ¶¶ 92-94.) They took Plaintiff to a medical observation cell and pinned him and twisted his limbs. (Radwan Decl. ¶¶ 95-101.)

Based on these facts and many others, Plaintiff filed this lawsuit asserting fourteen claims. Plaintiff calls them "causes of action," but in federal court they're usually called "claims for relief." Plaintiff contends the Individual Defendants violated his constitutional rights under the First and Fourth Amendments and also committed certain torts and statutory violations. Plaintiff also contends that the County and Carona should be liable for the Individual Defendants' actions.

Defendants filed these Motions asking the Court to dismiss Plaintiff's claims. Because the parties' papers were somewhat confusing, the Court ordered the parties to submit a chart of the particular claims under attack by Defendants and Plaintiff's responses. (Doc. 139.) The parties submitted their charts. (Docs. 140-142.) The charts clarified some issues. But Defendants also raised new arguments in their chart that were not raised in their moving papers. The chart was designed to clarify the issues, not create new ones. Further, Plaintiff did not have an adequate time to prepare evidence and argument in response to arguments raised for the first time in Defendants' chart. Thus, the Court will not consider such arguments here.


The parties assert numerous evidentiary objections. "In motions for summary judgment with numerous objections, it is often unnecessary and impractical for a court to methodically scrutinize each objection and give a full analysis of each argument raised." Doe v. Starbucks, Inc., No. 08-0582 AG (CWx), 2009 U.S. Dist. LEXIS 118878, at *2, 2009 WL 5183773, at *1 (C.D. Cal. Dec. 18, 2009). Thus, the Court will address only objections to evidence that is central to the issues discussed in this Order. Where the Court relies on evidence under objection, the applicable objections are OVERRULED.


Summary judgment is appropriate only where the record, read in the light most favorable to the non-moving party, indicates that "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Material facts are those necessary to the proof or defense of a claim, as determined by reference to substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual issue is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. In deciding a motion for summary judgment, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255.

The burden initially is on the moving party to demonstrate an absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. If, and only if, the moving party meets its burden, then the non-moving party must produce enough evidence to rebut the moving party's claim and create a genuine issue of material fact. Id. at 322-23. If the non-moving party meets this burden, then the motion will be denied. Nissan Fire & Marine Ins. Co. v. Fritz Co., Inc., 210 F.3d 1099, 1103 (9th Cir. 2000).

"If summary judgment is not rendered on the whole action, the court should, to the extent practicable, determine what material facts are not genuinely at issue." Fed. R. Civ. P. 56(d)(1). The court "should then issue an order specifying what facts -- including items of damages or other relief -- are not genuinely at issue. The facts so specified must be treated as established in the action." Id.



Plaintiff's first claim is under 42 U.S.C. § 1983 ("Section 1983") based on a violation of the Fourth Amendment right to be free from unlawful searches and seizures. Plaintiff's search and seizure claim is based on multiple separate incidents, each of which Plaintiff contends is independently sufficient to show a constitutional violation. The Individual Defendants make two main arguments that the search and seizure claim should be dismissed. For some of the incidents, the Individual Defendants argue that Plaintiff's search and seizure claim is barred by the Heck v. Humphrey, 512 U.S. 477 (1994). For all of the incidents, the Individual Defendants argue that the officers were protected by qualified immunity.

1.1 The Initial Investigatory Detention of Plaintiff

The first incident at issue is Fouste's search and seizure of Plaintiff during the initial investigatory detention of Plaintiff. Plaintiff contends that he was detained without reasonable suspicion. The Individual Defendants argue that Plaintiff's unreasonable search and seizure claim regarding this incident should be dismissed both under Heck and on grounds of qualified immunity. The Court agrees.

1.1.1 Heck

Heck addressed the extent a plaintiff may assert a Section 1983 claim when resolution of the claim would involve issues that would impact a conviction of the plaintiff. Heck stated, 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. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983.

512 U.S. at 486-87 (emphasis in original) (citation and footnote omitted). Under Heck and its progeny, a Section 1983 claim "that would call into question the lawfulness of a plaintiff's conviction or confinement is not cognizable . . . until and unless the plaintiff can prove that his conviction or sentence has been reversed on direct appeal." Harvey v. Waldron, 210 F.3d 1008, 1014-16 (9th Cir. 2000) (citing Heck, 512 U.S. at 486-87), overruled on other grounds by Wallace v. Kato, 549 U.S. 384 (2007), as stated in Kucharski v. Leveille, 526 F. Supp. 2d 768, 774 (E.D. Mich. 2007).

Heck then explained the role of district courts in applying the Heck rule:

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. But if the district court determines that the plaintiff's action, even if successful, will not demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit.

512 U.S. at 487 (footnotes omitted).

So how does Heck apply here? Plaintiff was eventually convicted of possessing marijuana, and that conviction is still "outstanding." Thus, Heck bars any claim that, if successful, would imply that his conviction is invalid. The Individual Defendants argue that, "under Heck, Plaintiff has no § 1983 claim for unreasonable search or seizure for Fouste's initial investigatory detention" of Plaintiff. (Mot. 6:21-23.)

This argument is persuasive. If the initial detention of Plaintiff was invalid, the officers would never have discovered the marijuana in his pocket or the marijuana and knives in the car.

Plaintiff contends that the marijuana and knives would have been inevitably discovered. Strangely, Plaintiff places this argument largely in a footnote*fn1 that is then bolded*fn2 . Plaintiff is correct that because of the existence of "doctrines like independent source and inevitable discovery," some successful Fourth Amendment claims "would not necessarily imply that the plaintiff's conviction was unlawful . . . ." Heck, 512 U.S. at 487 n.7 (emphasis in original). Thus, Fourth Amendment claims may proceed despite Heck if the evidence at issue would have been found for some reason beyond the allegedly unlawful conduct, such as an independent tipster or alternate basis to search or arrest the plaintiff. See Harper v. Jackson, 293 Fed. Appx. 389, 392 (6th Cir. 2008). But here, concerning Plaintiff's initial detention, Plaintiff identifies no possible way that the marijuana or knives would've been independently discovered absent the allegedly illegal initial detention.

Plaintiff also argues that Fourth Amendment claims for unlawful searches categorically do not imply that a conviction is invalid, citing Snodderly v. R.U.F.F. Drug Enforcement Task Force, 239 F.3d 892, 897 (7th Cir. 2001). But the Ninth Circuit has expressly rejected the Snodderly rule, and declined to find that all search and seizure claims may proceed despite Heck. Harvey, 210 F.3d at 1015. See also Gibson v. Superintendent of N.J. Dep't of Law & Pub. Safety-Division of State Police, 411 F.3d 427, 449 (3d Cir. 2005) ("Footnote seven of Heck clearly states that an action may lie with respect to an unreasonable search, not that it shall or will lie. The use of the permissive word 'may' endorses the use of a fact-based approach because it precludes the automatic exemption of all Fourth Amendment claims from the Heck deferred accrual rule.") (citation omitted). Thus, this argument fails.

Plaintiff also argues that Heck cannot bar Plaintiff's claim because Plaintiff had his conviction set aside under California Penal Code § 1203.4. This argument fails too. "While a 1203.4 petition [to set aside conviction] does act to relieve a defendant from most penalties and disabilities resulting from the offense, it does not nullify the conviction. Rather, the final judgment of a conviction is a fact; and its effect cannot be nullified even by a 1203.4 set aside." Engel v. Barry, NO. CIV. S 03-2403 MCE KJM, 2005 U.S. Dist. LEXIS 33308, at *8-9 (C.D. Cal. Dec. 15, 2005) (citation omitted); Campos v. City of Merced, --- F.Supp.2d ----, 2010 WL 1729798, at * 15 (E.D. Cal. 2010) ("Whether or not Plaintiff's petition was granted, Heck will act to bar Plaintiff's claims regarding his arrest or the probable cause related thereto, but it will not preclude him from arguing that the police used excessive force.") (footnote omitted). See also People v. Vasquez, 25 Cal. 4th 1225, 1231 (2001) (Section 1203.4 "does not expunge or erase a person's felony conviction from the record, but only restores to the person certain civil rights lost as a result of the conviction").

In sum, success on Plaintiff's Fourth Amendment claim based on his initial detention would necessarily imply the invalidity of Plaintiff's conviction. Thus, Heck bars Plaintiff's claim based on that incident.

1.1.2 Qualified Immunity

The Individual Defendants argue that, even assuming Heck does not apply, Plaintiff's unreasonable search and seizure claim based on Plaintiff's initial detention should be dismissed based on qualified immunity. They argue that "Defendants are entitled to qualified immunity as their conduct did not violate Plaintiff's Fourth Amendment rights," or at least "a reasonable officer could conclude their conduct was reasonable." (Reply 6:21-23.) The Court agrees.

"A private right of action pursuant to 42 U.S.C. § 1983 exists against law enforcement officers who, acting under the color of authority, violate federal constitutional or statutory rights of an individual." Motley v. Parks, 432 F.3d 1072, 1077 (9th Cir. 2005) (citing Wilson v. Layne, 526 U.S. 603, 609 (1999)). The defense of qualified immunity, however, shields an officer from trial when the officer reasonably misapprehends the law governing the circumstances confronted, even if the officer's conduct was constitutionally deficient. Id. (citing Brosseau v. Haugen, 543 U.S. 194 (2004) (per curiam)). "Qualified immunity balances two important interests-the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably." Pearson v. Callahan, 129 S.Ct. 808, 815 (2009).

To rule on qualified immunity of a government official, a court must consider (1) whether the facts alleged, taken in the light most favorable to the party asserting the injury, show that the official's conduct would have violated a constitutional right, and (2) whether the law governing the official's conduct was clearly established. Id. at 816. Before Pearson, courts were required to consider, in order, first whether there was a constitutional violation, and second whether the law was clearly established. See Saucier v. Katz, 533 U.S. 194 (2001), overruled by Pearson, 129 S.Ct. 808. Pearson overruled Katz and held that courts could consider the requirements in either order. 129 S.Ct. at 821.

A court must also consider whether, under that law, a reasonable official could have believed his conduct was lawful. Jeffers v. Gomez, 267 F.3d 895, 910 (9th Cir. 2001) (citing Browning v. Vernon, 44 F.3d 818, 822 (9th Cir. 1995)). The reasonableness inquiry "gives ample room for mistaken judgments by protecting all but the plainly incompetent or those who knowingly violate the law." Hunter v. Bryant, 502 U.S. 224, 229 (1991) (per curiam). This accommodation for reasonable error exists because "officials should not err always on the side of caution" out of fear of legal liability. Davis v. Scherer, 468 U.S. 183, 196 (1984).

Defendants are entitled to qualified immunity for the initial detention of Plaintiff. "The Fourth Amendment prohibits 'unreasonable searches and seizures' by the Government, and its protections extend to brief investigatory stops of persons . . . ." United States v. Arvizu, 534 U.S. 266, 273 (2002) (citing Terry v. Ohio, 392 U.S. 1, 9 (1968)). Generally, police must have probable cause before detaining a person. See Florida v. Royer, 460 U.S. 491, 498 (1983) (plurality opinion). But there is a "limited exception" to the general rule requiring probable cause. Gallegos v. City of Los Angeles, 308 F.3d 987, 990 (9th Cir. 2002). "Under Terry and its progeny, the Fourth Amendment allows police to conduct a brief, investigatory search or seizure, so long as they have a reasonable, articulable suspicion that justifies their actions." Id. "The reasonable suspicion standard 'is a less demanding standard than probable cause,' and merely requires 'a minimal level of objective justification.'" Id. (quoting Illinois v. Wardlow, 528 U.S. 119, 123 (2000)).

Here, Fouste had reasonable, articulable suspicion justifying his initial detention of Plaintiff. Fouste was told by a 911 operator that a man was kicking another person next to a Range Rover by Paseo De Colinas. (PSF ¶ 7; Plaintiff's Exhibit M.) Fouste responded to the call and found Plaintiff and Fults at Paseo De Colinas by Plaintiff's Range Rover, with Fults crying loudly. (PSF ¶¶ 8-9, 16.) Under the circumstances, Fouste had reasonable suspicion that Plaintiff committed an assault on Fults, which justified detaining Plaintiff. See Gallegos, 308 F.3d at 990.

Plaintiff argues that the 911 call is insufficient to establish reasonable suspicion, citing Florida v. J.L., 529 U.S. 513 (2003), to support his argument. Florida v. J.L. held that an anonymous tip identifying an individual as carrying a gun, without more, did not provide reasonable suspicion justifying an investigatory detention under Terry (also known as a "Terry stop and frisk"). See id. at 268; United States v. Terry-Crespo, 356 F.3d 1170 (9th Cir. 2004) (discussing Florida v. J.L.). The Court reasoned that the tip was unreliable as a "bare report of an unknown, unaccountable informant who neither explained how he knew about the gun nor supplied any basis for believing he had inside information about J.L." Id. at 271.

The reliability problems found in Florida v. J.L. are not present here. Rather, this case is more like Terry-Crespo, where the Ninth Circuit found that a partially corroborated 911 call was sufficient to support reasonable suspicion. Among other things, the Terry-Crespo court found that 911 calls are generally "entitled to greater reliability than a tip concerning general criminality because the police must take 911 emergency calls seriously and respond with dispatch." 356 F.3d at 1176. See also United States v. Holloway, 290 F.3d 1131, 1139 (11th Cir. 2002), cert. denied 537 U.S. 1161 (2003) (finding that 911 calls "are distinctive in that they concern contemporaneous emergency events, not general criminal behavior") (quoted in TerryCrespo). "Calls to 911 . . . involve exigent situations that may limit the police's ability to gather identifying information." Terry-Crespo, 356 F.3d at 1176. Further, 911 calls have greater reliability than other anonymous tips because "[m]erely calling 911 and having a recorded telephone conversation risks the possibility that the police could trace the call or identify [the caller] by his voice." Id.

Here, like in Terry-Crespo, the 911 call was sufficiently reliable to support reasonable, articulable suspicion that Plaintiff had committed a crime. Further, the circumstances described in the 911 call were partially corroborated when Fouste found Plaintiff and Fults next to Plaintiff's Range Rover by Paseo De Colinas. Under the circumstances, the initial detention of Plaintiff was not unreasonable.

Plaintiff points out a discrepancy between the tipster's 911 call and the 911 operator's dispatch call to Fouste and other officers. (Opp'n to Individual Defendants' Mot. 4:9-5:9.) The original 911 call reported only that a man was "yelling and kicking, and there's someone next to the ground" next to a Range Rover near Paseo de Colinas. (Plaintiff's Exhibit M.) The dispatch call, however, stated that the 911 call reported a man kicking another person. (Id.)

This discrepancy does not change the existence of reasonable suspicion. Plaintiff fails to explain how it detracts from the justification Fouste had for initially detaining Plaintiff. Under the circumstances, Fouste had the requisite "'minimal level of objective justification'" to justify detaining Plaintiff. See Gallegos, 308 F.3d at 990 (quoting Wardlow, 528 U.S. at 123).

Thus, the initial detention of Plaintiff was not unreasonable, and thus not a violation of Plaintiff's Fourth Amendment right to be free of unreasonable searches and seizures. Further, even if Fouste lacked reasonable suspicion justifying his initial detention of Plaintiff, Fouste would still be entitled to qualified immunity because the constitutional violation was not clearly established. On the one hand, Florida v. J.L. states that a bare anonymous tip, without more, is insufficient for reasonable suspicion. But on the other hand, Terry-Crespo suggests that a corroborated 911 call is sufficient for reasonable suspicion. Given the circumstances of this case and the uncertainty of the case law, any constitutional violation was not clearly established, and a reasonable officer could have concluded that Fouste's initial detention of Plaintiff was constitutional.

1.1.3 Conclusion

Summary adjudication is GRANTED as to Plaintiff's Fourth Amendment claim based on his initial detention.

1.2 The Search of Plaintiff

The second incident at issue is the search of Plaintiff, where Fouste discovered marijuana and pepper spray in Plaintiff's pocket. Plaintiff claims that Fouste performed a full search on Plaintiff without probable cause. The Individual Defendants again argue that this claim should be dismissed both under Heck and on grounds of qualified immunity. The Individual Defendants' argument concerning Heck is persuasive.

1.2.1 Give 'Em Heck

If Plaintiff succeeds on his claim that the initial search was unconstitutional, it would demonstrate the invalidity of his conviction for possession of marijuana. See Heck, 512 U.S. at 486-87. Fouste searched Plaintiff, and found marijuana and pepper spray in his pocket. Plaintiff was arrested, and the police then searched his vehicle as a search incident to arrest, and found more marijuana and some knives. Plaintiff was then convicted of possession of marijuana. Plaintiff now asserts a claim for unreasonable search and seizure based on Fouste's initial detention and search of Plaintiff. But if the initial detention and search were unconstitutional, the marijuana would not have been discovered, and Plaintiff would not have been convicted of possession of marijuana. Thus, success on Plaintiff's unreasonable search claim based on Fouste's search would imply that Plaintiff's conviction is invalid. See Heck, 512 U.S. at 486-87.

Plaintiff argues that success on his claim would not imply his conviction's invalidity because the marijuana and knives would have been inevitably discovered even without the search and seizure. Plaintiff's argument fails. Recall that if the marijuana would have been inevitably discovered despite the allegedly unconstitutional search and seizure, Heck does not bar Plaintiff's claim. Heck, 512 U.S. at 487 n.7 (emphasis in original). Here, Plaintiff fails to persuade the Court that the marijuana would inevitably have been discovered.

This conclusion requires a brief discussion of the inevitable discovery doctrine. In its normal operation during a criminal prosecution, "the inevitable discovery doctrine permits the admission of illegally obtained evidence when 'the prosecution can establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means[.]'" United States v. Manzo-Jurado, 457 F.3d 928, 940 (9th Cir. 2006) (quoting Nix v. Williams, 467 U.S. 431, 444 (1984)). The requisite level of proof is different when the inevitable discovery doctrine is used to overcome Heck as a bar to a Section 1983 claim. Heck only bars claims that "would necessarily imply the invalidity of [a] conviction . . . ." Heck, 512 U.S. at 487 (emphasis added). So as long as there is a reasonable possibility that the evidence at issue would be inevitably discovered, success on a Fourth Amendment claim would not necessarily imply the invalidity of the conviction, and the Section 1983 claim may proceed.

Plaintiff fails to show there is any reasonable possibility that the marijuana would have been independently discovered. Plaintiff argues that, "Fouste would have assuredly asked the plaintiff his name, and upon running the same, would have discovered the protective order, that would have led to the arrest for the alleged violation of the same, which would have inevitably led to the discovery of the pot." (Opp'n to Individual Defendants' Mot. 16, n.23 (emphasis removed).) The Individual Defendants persuasively explain the flaws of this argument:

Without discovering the marijuana in the first place, the Deputies would have had no justification for searching Plaintiff's Range Rover -- there would have been no probable cause that drugs were in the car to justify an automobile search . . . and there would not have been an arrest for possession of marijuana that would have justified a search incident to arrest . . . . Without searching the car, the Deputies would not have discovered Plaintiff's knives. Accordingly, the Deputies would not have had probable cause to believe Plaintiff had violated the terms of his protective order [and thus there] would not have been a search incident to arrest to turn up the marijuana.

(Reply to Individual Defendants' Mot. 1:19-2:2.)

Accordingly, success on Plaintiff's claim that Fouste unreasonably searched him would necessarily imply the invalidity of Plaintiff's conviction. Heck bars this claim.

1.2.2 Qualified Immunity

Because Heck bars Plaintiff's unreasonable search and seizure claim based on the search of Plaintiff, the Court need not address whether the Individual Defendants have qualified immunity on that claim. But the issue of whether the search was unreasonable is relevant to the Court's analysis of other issues, and a brief discussion will assist the parties at oral argument. Thus, the Court finds the following.

Admissible evidence viewed in the light most favorable to Plaintiff shows that there are disputed issues of fact concerning whether Fouste's search of Plaintiff was reasonable. The Individual Defendants admit that Fouste did not do a Terry pat down of Plaintiff, but rather did a full blown search of Plaintiff. There is a genuine issue of fact whether, at the time Fouste searched Plaintiff, he had probable cause to do so.

The Individual Defendants argue that probable cause existed because Fouste smelled marijuana on Plaintiff. Defendants offer evidence that, after Plaintiff approached, "Fouste smelled the odor of unburned marijuana on [Plaintiff's] possession." (Fouste Decl. ¶ 8.) Fouste declares that he smelled marijuana on Plaintiff, he told Plaintiff that he smelled the marijuana, and then he searched Plaintiff and discovered the marijuana. (Fouste Decl. ¶¶ 8-11.)

Plaintiff does not dispute that Fouste searched him and discovered the marijuana. Rather, Plaintiff attempts to create a disputed issue of fact about whether Fouste actually smelled the marijuana before searching Plaintiff. Plaintiff argues that Fouste could not have smelled marijuana on him. Plaintiff states that he "had only a small amount of marijuana (about a teaspoon size amount) that was unburned, and was sealed in a plastic container; preventing a person from being able to smell the small amount of marijuana at night, in the cold, . . . inside of plaintiff's pocket." (PSMF ¶ 11; Radwan Decl. ¶¶ 23-28.) Defendants object ...

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