United States District Court, D. Oregon
OPINION AND ORDER
Aiken United States District Judge.
a former inmate at the Oregon State Penitentiary, brings this
action pursuant to 42 U.S.C. § 1983 against James
Kinsella, a City of Bend police officer. Plaintiff alleges
that Officer Kinsella used excessive force by deploying a
canine against plaintiff when effectuating his arrest.
Plaintiff seeks costs and compensatory damages.
moves to dismiss plaintiffs claim on grounds it is barred by
the principles of Heck v. Humphrey, 512U.S. 477
(1994) and qualified immunity. Defendant's motion is
granted and this case is dismissed.
March 6, 2016, Officer Kinsella heard a call over dispatch
about a disturbance at the Crest Butte Apartment Complex in
Bend, Oregon. Kinsella Decl. at 2. Dispatch advised that the
female caller reported that plaintiff had punched her neck
and kicked her back in the presence of her toddler daughter.
Officer Kinsella did not initially respond to the call.
afterward, a responding police officer called Officer
Kinsella and informed him that officers could not locate
plaintiff at the scene. The officer asked Officer Kinsella to
bring his police canine, Haras, to the scene and attempt to
locate plaintiff. Id.
Kinsella and Jake Chandler arrived at the Crest Butte
Apartment Complex at approximately the same time.
Id. at 3. They noticed an individual gesturing at
them and pointing toward the south end of the apartment
complex. Officer Kinsella saw a man he recognized as
plaintiff crouched near the south end of building.
Officers Kinsella and Chandler walked toward plaintiff,
Officer Kinsella called out to plaintiff and asked him to
stand up and turn around. Plaintiff responded, "Fuck
you! I'm talking to my mom." Id. at 3.
Plaintiff then rose from his crouched position and turned
toward Officer Chandler, raising his fists. Plaintiff then
began bouncing on his feet and charged toward Officer
Chandler with raised fists. Chandler Decl. at 3. As Officer
Chandler reached for his taser, Officer Kinsella deployed
Haras, who bit plaintiff on the upper right arm and
apprehended him. Id.; Kinsella Decl. at 3-4. Officer
Kinsella and two other officers then surrounded plaintiff and
handcuffed him, and Haras released plaintiff. Officers called
paramedics to the scene pursuant to police department policy.
Kinsella Decl. at 4. Officer Kinsella and Haras had no
further contact with plaintiff.
was indicted on charges of Attempted Assault of a Public
Safety Officer, Resisting Arrest, and Assault in the Fourth
Degree. Franz Decl. Ex. 103. On June 9, 2016, plaintiff pled
guilty to Attempted Assault on a Public Safety Officer and
stated, "on or about 3-6-16 in Deschutes County, OR, I
did attempt to cause physical injury to Officer Chandler, a
person I knew to be a peace officer, while Officer Chandler
was acting in the course of official duty." Id.
Exs. 101, 104 at 3.
March 28, 2016, plaintiff filed this action against Officer
Kinsella (as the canine officer) and several other
defendants. The court dismissed most of plaintiffs claims and
ultimately allowed plaintiff to file an amended complaint
naming Officer Kinsella as the sole defendant.
26, 2017, Officer Kinsella moved for summary judgment.
Plaintiff has not responded after being provided with the
required summary judgment notice. Further, legal mail sent to
plaintiff at his last known address has been returned, and
plaintiff has not updated his address with the court.
Kinsella moves for summary judgment on grounds that
plaintiffs claim implicates the validity of his conviction
for Attempted Assault on a Public Safety Officer and runs
afoul of the rule articulated in Heck v. Humphrey,
512 U.S. 477, 487 (1994). See Smithart v. Towery, 79
F.3d 951, 952 (9th Cir. 1996) (per curiam) (Under
Heck, "if a criminal conviction arising out of
the same facts stands and is fundamentally inconsistent with
the unlawful behavior for which section 1983 damages are
sought, the 1983 action must be dismissed"). Officer
Kinsella also argues that the deployment of Haras was not
excessive and he is entitled to qualified immunity, as he did
not violate a clearly established Fourth Amendment right of
which a reasonable officer would have known.
of Heck's application, I agree that Officer
Kinsella is entitled to qualified immunity. "The
doctrine of qualified immunity protects government officials
'from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known.'" Pearson v. Callahan,555 U.S. 223,
231 (2009) (quoting Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982)). To ascertain whether qualified immunity
applies, the court determines whether a deprivation of a
constitutional right occurred and whether that right was
clearly established at the time of the deprivation.
Id. at 231-32; Nelson v. City of Davis, ...