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Alvarez v. Chavarria

United States District Court, E.D. California

April 4, 2018

JUAN CARLOS ALVAREZ, Plaintiff,
v.
ALEX CHAVARRIA, Defendant.

         ORDER DIRECTING CLERK OF COURT TO ASSIGN A DISTRICT JUDGE TO THIS CASE FINDINGS AND RECOMMENDATIONS TO DENY MOTION TO DISMISS (ECF NO. 20) ORDER TO SHOW CAUSE WHY CASE SHOULD NOT BE DISMISSED FOR FAILURE TO COMPLY WITH COURT DEADLINE FOURTEEN DAY DEADLINE TO OBJECT AND TO SHOW CAUSE

          MICHAEL J. SENGU, NITED STATES MAGISTRATE JUDGE

         Plaintiff is a state prisoner currently incarcerated at the Sierra Conservation Center in Jamestown, California. He proceeds pro se and in forma pauperis in a civil rights action pursuant to 42 U.S.C. § 1983. This action proceeds on Plaintiffs first amended complaint. (ECF No. 8.)

         On September 12, 2017, Defendant Chavarria filed a motion to dismiss the complaint for failure to state a claim. (ECF Nos. 20-22.) Plaintiff did not file a response to the motion to dismiss. Given Plaintiff's pro se status, the court on October 19, 2017, provided Plaintiff the opportunity to show good cause for his non response and gave him an extended opportunity to respond to the motion to dismiss. (ECF No. 23.) On November 21, 2017, Plaintiff filed a motion for an additional thirty day extension of time to respond to the order to show cause and to the motion to dismiss because he was in administrative segregation and lacked access to the law library. (ECF No. 24.). The Court granted that motion (ECF No. 25) and discharged the order to show cause (ECF No. 26).

         On January 2, 2018, Plaintiff filed a second motion for extension of time to file a response to the motion to dismiss and raised the same grounds as in the first motion. (ECF No. 27.) On January 4, 2018, the Court granted Plaintiff an additional thirty day extension of time to file an opposition. (ECF No. 28.) Plaintiff was warned that the Court could not indefinitely postpone addressing the pending motion. (Id.)

         Plaintiff has yet to file an opposition to the motion to dismiss and the time to do so has long passed. Accordingly, the Court deems the motion submitted. See Local Rule 230(1). While “[f]ailure of the responding party to file an opposition or to file a statement of no opposition may be deemed a waiver of any opposition to the granting of the motion, ” Local Rule 230(1), the Court will still address the substance of Defendant's motion to dismiss.

         For the foregoing reasons, the undersigned recommends that the motion to dismiss (ECF No. 22) be denied. The Court directs the Clerk of Court to assign a District Judge to this action to address the recommendations issued herein.

         While the Court recommends denial of the motion to dismiss, it will nevertheless order Plaintiff to show cause within 14 days of the date of this Order why the case should not be dismissed for failure to prosecute.

         I. Background

         Plaintiff is currently incarcerated at the Sierra Conservation Center in Jamestown, California. Plaintiff's claims stem from his November 25, 2014, arrest by the Corcoran Police Department. He brings this suit against Sergeant Alex Chavarria.[1] Plaintiff's allegations in the first amended complaint (ECF No. 8) may be summarized as follows:

         On November 25, 2014, multiple officers arrived at Plaintiff's residence to question or arrest him pursuant to a criminal investigation. As police officers arrived at Plaintiff's home, Plaintiff turned and ran in the opposite direction, past his house, and towards an empty lot behind it. Plaintiff was about to cross the road toward the other side when he saw Defendant Chavarria speeding towards him. Plaintiff continued running, then stopped. Chavarria continued to speed towards Plaintiff until he hit Plaintiff with his vehicle, causing multiple injuries. Chavarria later wrote in his police report to justify his actions: “I felt if [Plaintiff] were to get away he would continue to be a menace to society and dangerous to the community.” At the time, Plaintiff was not armed and did not pose a threat to officers or the public.

         Plaintiff seeks medical costs and compensation for his pain and suffering.

         II. Motion to Dismiss

         Defendant moves to dismiss this action on the basis that it is barred under Heck v. Humphrey, 512 U.S. 477 (1994) and therefore fails to state a claim as a matter of law. (ECF No. 20.) Specifically, Defendant argues that Plaintiff admits in the complaint that he was resisting arrest at the time that Defendant hit him with the vehicle. Furthermore, Plaintiff was convicted of resisting arrest for this specific incident. Accordingly, Defendant argues that a judgment in Plaintiff's favor in this case would necessarily imply the invalidity of Plaintiff's conviction and must be dismissed under Heck. (Id.)

         For the reasons set forth below, the Court rejects this argument and ...


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