United States District Court, E.D. California
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
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.)
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.
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
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.
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.
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.
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. Plaintiff's allegations in the first
amended complaint (ECF No. 8) may be summarized as follows:
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.
seeks medical costs and compensation for his pain and
Motion to Dismiss
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.)
reasons set forth below, the Court rejects this argument and