FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CHARLES EDWARD BYRD, No. 16-16152
Plaintiff-Appellant,
D.C. No.
v. 2:15-cv-02661-
NVW-DKD
PHOENIX POLICE DEPARTMENT,
named as City of Phoenix Police
Department; ROBERT MCKINNEY, OPINION
Phoenix Police Department Officer
#8046; TIMOTHY THIEBAUT, Phoenix
Police Department Officer #8008,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued and Submitted November 14, 2017
Pasadena, California
Filed March 16, 2018
Before: Jacqueline H. Nguyen and Andrew D. Hurwitz,
Circuit Judges, and Richard K. Eaton, * Judge.
*
Richard K. Eaton, Judge of the United States Court of International
Trade, sitting by designation.
2 BYRD V. PHOENIX POLICE DEP’T
Per Curiam Opinion;
Concurrence by Judge Eaton
SUMMARY **
Prisoner Civil Rights
The 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.
The 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.
The 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
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
BYRD V. PHOENIX POLICE DEP’T 3
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
that conviction.
The 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.
Concurring, 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.
COUNSEL
Jeremy 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.
4 BYRD V. PHOENIX POLICE DEP’T
OPINION
PER CURIAM:
Charles 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.
I.
BACKGROUND
On 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. 1 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.2
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
1
Byrd’s complaint asserted that the police officers’ conduct violated
his Fourth, Fifth, Eighth, Ninth, and Fourteenth Amendment rights, and
that the City of Phoenix Police Department was responsible as their
employer.
2
Riding a bicycle at night without a headlight is a civil traffic
violation. See Ariz. Rev. Stat. §§ 28-817(A), -626(C).
BYRD V. PHOENIX POLICE DEP’T 5
to commit possession of a dangerous drug, and was
sentenced to ten years imprisonment. 3
The 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.
Next, 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.
On 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
3
We grant the parties’ motions to take judicial notice of certain
documents from the Maricopa County Superior Court’s file in Byrd’s
criminal case (CR2012-150030-001). See Fed. R. Evid. 201(b)(2).
6 BYRD V. PHOENIX POLICE DEP’T
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 viable complaint] despite specific
instructions from the Court,” and further opportunities to
amend would be “futile.”
II.
ANALYSIS
For certain prisoner civil rights litigation, 28 U.S.C.
§ 1915A(a) requires pre-answer screening of the complaint
so that “the targets of frivolous or malicious suits need not
bear the expense of responding.” Nordstrom v. Ryan,
762 F.3d 903, 908 n.1 (9th Cir. 2014) (quotation marks and
citation omitted). In this review, the district court “shall
identify cognizable claims or dismiss the complaint, or any
portion of the complaint, if the complaint—(1) is frivolous,
malicious, or fails to state a claim upon which relief may be
granted; or (2) seeks monetary relief from a defendant who
is immune from such relief.” 28 U.S.C. § 1915A(b). If the
district court determines that any of these grounds is
satisfied, it must dismiss the case, and enter a “strike” against
the plaintiff prisoner. See 28 U.S.C. § 1915(e)(2), (g);
Washington v. Los Angeles County Sheriff’s Dep’t, 833 F.3d
1048, 1051 (9th Cir. 2016). Three strikes bar a prisoner from
bringing a civil action or appeal in forma pauperis, unless he
is “under imminent danger of serious physical injury.”
28 U.S.C. § 1915(g).
“To survive § 1915A review, a complaint must ‘contain
sufficient factual matter, accepted as true, to state a claim to
relief that is plausible on its face.’” Nordstrom, 762 F.3d at
BYRD V. PHOENIX POLICE DEP’T 7
908 (quoting Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th
Cir. 2012)). Moreover, “we have an obligation where the
petitioner is pro se, particularly in civil rights cases, to
construe the pleadings liberally and to afford the petitioner
the benefit of any doubt.” Bretz v. Kelman, 773 F.2d 1026,
1027 n.1 (9th Cir. 1985) (en banc) (citation omitted); accord
Byrd v. Maricopa Cty. Bd. of Supervisors, 845 F.3d 919, 922
(9th Cir. 2017).
A.
Byrd’s Excessive Force Claim
The excessive force claim in Count Six of Byrd’s
handwritten complaint alleged that Officers McKinney and
Thiebaut
used excessive force when they beat the crap
out of Charles Byrd when they pulled [him]
over for no light on his bicycle, even though
[he] was on private property, was not
engaged in criminal activity, was not on
probation or parole, did not receive any type
of traffic or [equipment] violation, and had
no warrants for [his] arrest.
Byrd alleged that his injuries included “severe body pain
from the beating, emotional distress from thinking these two
officers were going to beat [him] to death, [and] loss of 70%
of [his] vision.”
The district court found that Byrd’s allegations were “too
vague and conclusory.” Specifically, the court stated:
Although Plaintiff contends that the officers
“beat the crap out of [him],” he does not
8 BYRD V. PHOENIX POLICE DEP’T
identify what force the officers used, or why
they used it. Plaintiff claims that he was
stopped for not having a light on his bicycle,
but it appears he was arrested for other
crimes. Moreover, Plaintiff does not assert
that he was not resisting arrest, did not
possess a weapon, and did not pose a threat
to the police or others. Thus, Plaintiff has
failed to state a claim regarding the officers’
use of force.
(Alteration in original). The court took judicial notice “that
two of the dismissed counts in [the underlying criminal case
against Byrd] were for misconduct involving weapons and
resisting arrest.”
We analyze claims of excessive force under the
reasonableness standard of the Fourth Amendment. See
Graham v. Connor, 490 U.S. 386, 395 (1989). “[T]he
question is whether the officers’ actions are objectively
reasonable in light of the facts and circumstances
confronting them, without regard to their underlying intent
or motivation.” Id. at 397 (internal quotation marks and
citation omitted). This analysis “requires balancing the
‘nature and quality of the intrusion’ on a person’s liberty
with the ‘countervailing governmental interests at stake’ to
determine whether the use of force was objectively
reasonable under the circumstances.” Santos v. Gates,
287 F.3d 846, 853 (9th Cir. 2002) (quoting Graham,
490 U.S. at 396). Among the factors considered are the need
for, and the severity of, the force applied. See Tekle v. United
States, 511 F.3d 839, 844 (9th Cir. 2007).
We disagree with the district court that the allegation that
the officers “beat the crap out of” Byrd was “too vague and
BYRD V. PHOENIX POLICE DEP’T 9
conclusory” to support a legally cognizable claim. Byrd’s
use of a colloquial, shorthand phrase makes plain that Byrd
is alleging that the officers’ use of force was unreasonably
excessive; this conclusion is reinforced by his allegations
about the resulting injuries. See, e.g., Smithart v. Towery,
79 F.3d 951, 952 (9th Cir. 1996) (finding sufficient
allegations that the defendant officers beat the plaintiff
“beyond recognition with unnecessary force” until he “had a
broken arm, two broken legs, numerous contusions, and
internal injuries.”) (emphasis added). Byrd’s allegations that
the officers beat him so severely that he lost seventy percent
of his vision sufficed to identify the severity of the force the
officers used, and to plausibly allege that it was excessive—
particularly given our obligation to construe pro se filings
liberally. See Blaisdell v. Frappiea, 729 F.3d 1237, 1241
(9th Cir. 2013) (“This rule relieves pro se litigants from the
strict application of procedural rules and demands that courts
not hold missing or inaccurate legal terminology or muddled
draftsmanship against them.”).
B.
Byrd’s Other Claims
The district court dismissed Counts One, Two, Four, and
Five of Byrd’s complaint, which asserted Fourth
Amendment and due process violations, as Heck-barred
because they were similar to claims in his then-pending
federal habeas corpus petition. Heck held that § 1983
damages claims are not cognizable if “a judgment in favor
of the plaintiff would necessarily imply the invalidity of his
conviction or sentence.” 512 U.S. at 487. But, if a plaintiff’s
claim “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.” Id. (footnotes omitted).
10 BYRD V. PHOENIX POLICE DEP’T
Heck does not prohibit a habeas corpus petition and a
§ 1983 action from proceeding simultaneously; indeed the
Court seemed to anticipate this possibility. 4 The critical
question under Heck is a simple one: Would success on the
plaintiff’s § 1983 claim “necessarily imply” that his
conviction was invalid? See id.
Answering this question, we find that Heck does not bar
Byrd’s § 1983 claims. Because Byrd’s conviction resulted
from a plea agreement and Byrd alleged no facts in his
complaint suggesting that the plea was not knowing and
voluntary, success in the § 1983 action would not affect his
conviction.
Our conclusion finds support in Ove v. Gwinn, 264 F.3d
817 (9th Cir. 2001), which reviewed the dismissal of a
4
The Heck Court provided the following example of a scenario
where a successful § 1983 claim would not demonstrate the invalidity of
the plaintiff’s conviction:
For example, a suit for damages attributable to an
allegedly unreasonable search may lie even if the
challenged search produced evidence that was
introduced in a state criminal trial resulting in the
§ 1983 plaintiff’s still-outstanding conviction.
Because of doctrines like independent source and
inevitable discovery, and especially harmless error,
such a § 1983 action, even if successful, would not
necessarily imply that the plaintiff’s conviction was
unlawful. In order to recover compensatory damages,
however, the § 1983 plaintiff must prove not only that
the search was unlawful, but that it caused him actual,
compensable injury, which, we hold today, does not
encompass the “injury” of being convicted and
imprisoned (until his conviction has been overturned).
512 U.S. at 487 n.7 (internal citations omitted).
BYRD V. PHOENIX POLICE DEP’T 11
§ 1983 case involving plaintiffs who were convicted
pursuant to plea agreements of driving under the influence.
The plaintiffs’ § 1983 action argued that blood draws were
unreasonable under the Fourth Amendment. Id. at 824. The
district court found the § 1983 claims barred by Heck, but
we disagreed, finding that
it is apparent that the plaintiffs’ lawsuit, even
if successful, would not necessarily imply the
invalidity of Ove and Forest’s DUI
convictions. Their lawsuit concerns the way
in which their blood was drawn. But blood
evidence was not introduced against them.
No evidence was introduced against them.
They pleaded guilty or nolo contendere,
respectively. Their convictions derive from
their pleas, not from verdicts obtained with
supposedly illegal evidence. The validity of
their convictions does not in any way depend
upon the legality of the blood draws.
Conspicuously missing from this case is any
contention that Ove and Forest’s pleas were
illegal, involuntary or without factual bases.
Id. at 823 (footnotes omitted). We echoed this reasoning in
Lockett v. Ericson, 656 F.3d 892 (9th Cir. 2011), where the
plaintiff brought a § 1983 action challenging the warrantless
search of his home and the evidence seized as a result of that
search, after pleading nolo contendere to a traffic law
violation:
Our holding in Ove is dispositive in Lockett’s
case. Lockett pled nolo contendere after the
superior court denied his . . . suppression
motion. He was not tried, and no evidence
12 BYRD V. PHOENIX POLICE DEP’T
was introduced against him. Therefore, like
the convicted plaintiffs in Ove, Lockett’s
conviction “derive[s] from [his] plea[], not
from [a] verdict[] obtained with supposedly
illegal evidence.” “The validity of” Lockett’s
conviction “does not in any way depend upon
the legality” of the search of his home. We
therefore hold that Heck does not bar
Lockett’s § 1983 claim.
Id. at 896–97 (alterations to sentence three in original)
(quoting Ove, 264 F.3d at 823); see also Jackson v. Barnes,
749 F.3d 755, 760 (9th Cir. 2014).
Similarly, Heck poses no bar to Byrd’s claims. He
pleaded guilty to conspiracy to commit possession of a
dangerous drug for sale. No evidence was produced against
him at his plea hearing. Thus, success on his § 1983 claims
would not necessarily demonstrate the invalidity of his
conviction.
Appellees argue that Whitaker v. Garcetti, 486 F.3d 572
(9th Cir. 2007) and Szajer v. City of Los Angeles, 632 F.3d
607 (9th Cir. 2011), support the district court’s application
of the Heck bar. 5 We find those cases are distinguishable. In
5
Appellees further argue that we should affirm the dismissal on a
ground not relied upon by the district court—that Byrd’s action is
untimely under the applicable statute of limitations because he filed his
complaint more than two years after the date of his arrest and the alleged
beating. We decline Appellees’ invitation to address the statute of
limitations issue, or Byrd’s claim of equitable estoppel, in the first
instance. See Vernon v. Heckler, 811 F.2d 1274, 1278 (9th Cir. 1987)
(“In this case, viewing Vernon’s pro se materials liberally, the statute-
of-limitations issue is not so clear-cut as to justify its resolution in this
BYRD V. PHOENIX POLICE DEP’T 13
those cases, as here, the plaintiffs were convicted pursuant
to pleas of guilty and nolo contendere to crimes of
possession—possession of illegal drugs in Whitaker, and
possession of an illegal assault weapon in Szajer. 6 The
evidence supporting the possession convictions in those
cases and the conspiracy conviction here was found in the
challenged search. 7 See Whitaker, 486 F.3d at 584 (noting
that plaintiffs “challenge the search and seizure of the
evidence upon which their criminal charges and convictions
were based”); Szajer, 632 F.3d at 612 (“[Plaintiffs’] civil
claims necessarily challenge the validity of the undercover
court prior to affording Vernon the opportunity to delineate further a
factual basis for estoppel or equitable tolling.”).
6
Byrd pleaded guilty to conspiracy to commit possession of
dangerous drugs for sale—to agreeing, with one or more persons, that he
or another person would engage in conduct constituting the underlying
offense. Ariz. Rev. Stat. § 13-1003(A); see also Ariz. Rev. Stat.
§ 13-3407(A)(2). While possession of drugs by Byrd is not an element
of this crime, Byrd must have committed an overt act in furtherance of
the target offense. See State v. Gessler, 690 P.2d 98, 102 (Ariz. Ct. App.
1984) (“It is unnecessary to prove commission of the substantive crime
that is the subject of the conspiracy so long as there is an agreement to
commit the offense and an overt act.”). The only overt act was Byrd’s
possession of the drugs.
7
In Szajer, the plaintiffs’ gun shop and their residence were
searched pursuant to a warrant, and assault weapons, firearms, and
ammunition were discovered in both locations. 632 F.3d at 608. Each of
the Szajers pleaded no contest to one count of possession of a
semiautomatic pistol found in the safe of their residence. Id. at 609. In
their subsequent civil rights action, the Szajers challenged only the
search of their gun shop as unreasonable under the Fourth Amendment.
Id. at 612. Since the searches of the gun shop and the residence were
based on the same warrant and supporting affidavit, however, the court
did not find this distinction significant. Id.
14 BYRD V. PHOENIX POLICE DEP’T
operation and in doing so imply that there was no probable
cause to search for weapons.”).
In Whitaker and Szajer, however, the plaintiffs’ civil
suits “challenge[d] the search and seizure of the evidence
upon which their criminal charges and convictions were
based.” Whitaker, 486 F.3d at 584; Szajer, 632 F.3d at 612
(involving challenge to search “based on the same search
warrant” that provided the evidence supporting their
convictions). Therefore, in both cases, the court concluded
that if the plaintiffs prevailed on the § 1983 claims, “it would
necessarily imply the invalidity of their state court
convictions.” Szajer, 632 F.3d at 612 (describing holding in
Whitaker).
Here, in contrast, Byrd’s conviction was based on
methamphetamine he threw when the police were
questioning him, which they subsequently recovered “a
distance away from where he was at.” Byrd’s civil suit
concerns allegations that the police illegally searched his
person and used excessive force on him—after they
discovered the drugs, for all we know—which has nothing
to do with the evidentiary basis for his conspiracy
conviction. See Beets v. County of Los Angeles, 669 F.3d
1038, 1042 (9th Cir. 2012) (“[A]n allegation of excessive
force by a police officer would not be barred by Heck if it
were distinct temporally or spatially from the factual basis
for the person’s conviction.” (construing Smith v. City of
Hemet, 394 F.3d 689, 699 (9th Cir. 2005) (en banc))).
Therefore, success in Byrd’s § 1983 action does not
“necessarily imply” that his conviction was invalid. See
Heck, 512 U.S. at 487.
BYRD V. PHOENIX POLICE DEP’T 15
III.
CONCLUSION
We conclude that Byrd’s complaint alleged sufficient
facts to state a claim of excessive force, and that Heck does
not bar Byrd’s other claims. We express no opinion as to the
accuracy of Byrd’s claims or whether they will survive
further scrutiny. We therefore REVERSE and REMAND
for further proceedings. 8
EATON, Judge, concurring:
I join in the panel’s reasoning in all respects other than
those dealing with the Heck bar. Under Heck, where a
plaintiff’s § 1983 claim for damages, “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.” Heck v. Humphrey, 512 U.S. 477, 487 (1994)
(footnotes omitted). Applying this rule, some of this
Circuit’s opinions have concluded that, because no evidence
is presented against a plaintiff where a conviction results
from a plea agreement, a § 1983 case is not barred by Heck:
“No evidence was introduced against [plaintiffs Ove and
Forest]. They pled guilty or nolo contendere, respectively.
Their convictions derive from their pleas, not from verdicts
8
We agree with the district court that Byrd’s complaint failed to
allege a Monell claim against the City of Phoenix. But because we
remand for further proceedings, we leave to Byrd’s new counsel whether
to seek leave to amend to correct the deficiencies identified by the district
court.
16 BYRD V. PHOENIX POLICE DEP’T
obtained with supposedly illegal evidence.” Ove, 264 F.3d at
823 (emphasis in original).
I believe this analysis to be correct, and thus would not
draw the distinction, apparently made in Whitaker and
Szajer, that would impose the Heck bar in cases where the
§ 1983 action involves the seizure of evidence that might
have been used to prosecute a defendant had there been a
trial. The Heck opinion makes this clear:
For example, a suit for damages attributable
to an allegedly unreasonable search may lie
even if the challenged search produced
evidence that was introduced in a state
criminal trial resulting in the § 1983
plaintiff’s still-outstanding conviction.
Because of doctrines like independent source
and inevitable discovery, and especially
harmless error, such a § 1983 action, even if
successful, would not necessarily imply that
the plaintiff’s conviction was unlawful. In
order to recover compensatory damages,
however, the § 1983 plaintiff must prove not
only that the search was unlawful, but that it
caused him actual, compensable injury,
which, we hold today, does not encompass
the “injury” of being convicted and
imprisoned (until his conviction has been
overturned).
512 U.S. at 487 n.7 (internal citations omitted). This rule
regarding pleas has been adopted elsewhere, and, it seems to
me, should be adopted here. See Rollins v. Willett, 770 F.3d
575, 576 (7th Cir. 2014) (reasoning that since there was no
trial, “[a] finding that the defendant was illegally seized—
BYRD V. PHOENIX POLICE DEP’T 17
the finding he seeks in this suit—would therefore have no
relevance to the validity of his guilty plea and ensuing
conviction”); Covey v. Assessor of Ohio Cty., 777 F.3d 186,
197 (4th Cir. 2015) (“[A] civil-rights claim does not
necessarily imply the invalidity of a conviction or sentence
if (1) the conviction derives from a guilty plea rather than a
verdict obtained with unlawfully obtained evidence and
(2) the plaintiff does not plead facts inconsistent with guilt.”
(citing Lockett v. Ericson, 656 F.3d 892, 897 (9th Cir.
2011)).
Thus, I would allow Byrd’s § 1983 claims to proceed,
not because he pled guilty to conspiracy, and there was no
way of knowing whether he threw the drugs away before or
after the complained of civil rights violations, but because
his conviction resulted from a plea agreement and was thus
based on no evidence at all.