and Submitted November 14, 2017 Pasadena, California
from the United States District Court for the District of
Arizona Neil V. Wake, District Judge, Presiding D.C. No.
B. Rosen (argued) and Mark A. Kressel. Horvitz & Levy
LLP, Burbank, California; Kyser Blakely (argued) and Emily
Sauer (argued), Certified Law Students, Pepperdine University
School of Law Ninth Circuit Appellate Advocacy Clinic,
Malibu, California; for Plaintiff-Appellant.
Clarence E. Matherson Jr. (argued), Assistant City Attorney;
Brad Holm, City Attorney; Office of the City Attorney,
Phoenix, Arizona; for Defendants-Appellees.
Before: Jacqueline H. Nguyen and Andrew D. Hurwitz, Circuit
Judges, and Richard K. Eaton, [*] Judge.
panel reversed the district court's sua sponte dismissal
of a complaint seeking damages under 42 U.S.C. § 1983
for alleged violations of plaintiff's constitutional
rights by Phoenix police officers during a traffic stop.
panel disagreed with the district court that the allegation
that the officers "beat the crap out of" plaintiff
was too vague and conclusory to support a legally cognizable
claim. The panel held that plaintiff's use of a
colloquial, shorthand phrase made plain that he was alleging
that the officers' use of force was unreasonably
excessive; this conclusion was reinforced by his allegations
about the resulting injuries.
panel held that plaintiff's § 1983 claims alleging
Fourth Amendment and due process violations were not barred
by Heck v. Humphrey, 512 U.S. 477 (1994), which held
that § 1983 claims are not cognizable if a judgment in
favor of the plaintiff would necessarily imply the invalidity
of his conviction or sentence. The panel noted that plaintiff
pleaded guilty to conspiracy to commit possession of a
dangerous drug for sale, that no evidence was produced
against him at his plea hearing, and that he alleged no facts
suggesting that his plea was not knowing or voluntary. The
panel determined that plaintiff's civil suit concerning
allegations that the police illegally searched his person and
used excessive force had nothing to do with the evidentiary
basis for his conviction. Therefore, success on his civil
claims would not necessarily demonstrate the invalidity of
panel agreed with the district court that plaintiff's
complaint failed to allege a Monell claim against
the City of Phoenix. But because the panel was remanding for
further proceedings, the panel left it to plaintiff's new
counsel to determine whether to seek leave to amend to
correct the deficiencies identified by the district court.
Judge Eaton stated that he would allow plaintiff's §
1983 claims to proceed, because his conviction resulted from
a plea agreement and was thus based on no evidence at all.
Edward Byrd, an Arizona state prison inmate, appeals the
district court's sua sponte dismissal, pursuant
to 28 U.S.C. § 1915A, of his civil rights complaint. We
have jurisdiction under 28 U.S.C. § 1291. We review the
dismissal de novo, Resnick v. Hayes, 213 F.3d 443,
447 (9th Cir. 2000), and reverse and remand to the district
court for further proceedings.
December 31, 2015, Byrd filed a pro se complaint seeking
damages under 42 U.S.C. § 1983 for alleged violations of
his constitutional rights by Phoenix Police Officers Robert
McKinney and Timothy Thiebaut during a traffic
stop. Byrd alleged that Officers McKinney and
Thiebaut stopped him for riding a bicycle without a
headlight, but did not issue him a citation for that
violation.Rather, according to Byrd, the officers
first searched him and his belongings, and then proceeded to
"beat the crap out of" him, causing serious
injuries, including the loss of seventy percent of his
vision. Byrd later pleaded guilty to conspiracy to commit
possession of a dangerous drug, and was sentenced to ten
district court conducted a pre-answer screening of Byrd's
complaint pursuant to 28 U.S.C. § 1915A(a). The court
first found that Byrd had improperly named the Phoenix Police
Department as a defendant, instead of the City of Phoenix. In
addition, the court found that, even if Byrd had sued the
city, his claim could not survive dismissal because he
alleged a respondeat superior theory of liability
but did not allege that the officers were acting pursuant to
an official policy or custom of the municipality. The court
therefore dismissed the suit against the department.
the court examined the six counts of the complaint. The
excessive force claim in Count Six was dismissed because the
district court found its allegations too vague and conclusory
to state a claim, and Count Three was dismissed as
duplicative of Count Six. The court held that Heck v.
Humphrey, 512 U.S. 477 (1994) barred Counts One, Two,
Four, and Five of the complaint, which asserted violations of
Byrd's Fourth Amendment right to be free from
unreasonable search and seizure, and his due process rights
under the Fifth and Fourteenth Amendments. The district court
dismissed the complaint, with leave to amend, instructing
Byrd to "cure the deficiencies outlined" and
re-submit the complaint on a court-approved form.
April 18, 2016, Byrd filed his First Amended Complaint, which
again named the City of Phoenix Police Department and the two
officers as defendants and repeated the six counts alleged in
the original complaint. The district court found that the
First Amended Complaint suffered from the same defects that
the court had previously identified and dismissed it without
leave to amend. The district court denied leave to amend
because Byrd was apparently "unable or unwilling to
[craft a ...