1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 THOMAS JEFFERSON CARES, Case No. 18-cv-07651-HSG 8 Plaintiff, ORDER DENYING MOTION TO DISMISS AND ADMINISTRATIVELY 9 v. CLOSING THE CASE 10 KELLY BURBANK, et al., Re: Dkt. No. 51 11 Defendants. 12 Pending before the Court is the Motion to Dismiss (“Motion,” Dkt. No. 51), filed by 13 Defendants Kelly Burbank and Paul Gilles, for which briefing is complete. Dkt. Nos. 52, 53. For 14 the reasons set forth below, the Court DENIES the Motion without prejudice, and administratively 15 closes the case.1 16 I. BACKGROUND 17 Plaintiff Thomas Jefferson Cares, pro se, filed his complaint on December 19, 2018, 18 against nine Defendants based on their alleged mistreatment of him when he was lost in San 19 Benito County in December 2016. Dkt. No. 1. On or about December 19, 2016, Plaintiff was 20 brought to the San Benito County Sheriff’s Department after Eric Triolo alleged that Plaintiff 21 trespassed on his property and vandalized his home. Id. ¶¶ 5, 8, 11, 12. According to Plaintiff, he 22 was lost in the hills of San Benito County for two days in December 2016 until he ran into Triolo. 23 Id. ¶¶ 1–6. Plaintiff alleges that Triolo became “hostile” to Plaintiff because of alleged political 24 differences, detained Plaintiff, and drove him to the county sheriff’s office. Id. ¶¶ 7–11. 25 Defendants Kelly Burbank and Paul Gillies were San Benito County Sheriff’s Deputies who were 26 on duty when Triolo brought Plaintiff to the sheriff’s office. Id. ¶¶12-14. 27 1 Plaintiff alleges that Burbank and Gillies are responsible for wrongfully arresting him on 2 allegations of residential burglary. Id. ¶14. Plaintiff specifically alleges that the deputies refused 3 to provide him with medical attention, wrongly arrested him, fabricated false reports about him, 4 and put him on suicide watch even though he was not suicidal. Id. ¶¶ 12–19.2 Plaintiff was 5 criminally prosecuted, id. ¶¶19-20, and the criminal action remains pending. On April 11, 2019, 6 Mr. Cares failed to appear and his bail was forfeited. See Dkt. No. 51-3. As of November 9, 7 2019, a warrant had been issued for Mr. Cares and his bail forfeiture was extended to May 6, 8 2020. Id. 9 Plaintiff alleges causes of action against Defendants for (1) violation of federal civil rights, 10 42 U.S.C. 1983; (2) violation of state civil rights,

; (3) false arrest; (4) 11 intentional infliction of emotional distress; and (5) negligent infliction of emotional distress. 12 II. DISCUSSION 13 A. Legal Standard 14 In Heck v. Humphrey, the Supreme Court considered a § 1983 claim brought by a plaintiff 15 who was simultaneously pursuing an appeal in state court of his conviction for voluntary 16 manslaughter.

(1994). In affirming the dismissal of the plaintiff's § 1983 17 claims, the Supreme Court held that “in order to recover damages for … harm caused by actions 18 whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove 19 that the conviction or sentence has been reversed on direct appeal, expunged by executive order, 20 declared invalid by a state tribunal authorized to make such determinations, or called into question 21 by a federal court's issuance of a writ of habeas corpus.” Id. at 479. The Supreme Court directed 22 district courts to “consider whether a judgment in favor of the plaintiff would necessarily imply 23 the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the 24 plaintiff can demonstrate that the conviction or sentence has already been invalidated.” Id. at 487. 25 26 2 Judge Cousins, during the IFP screening, dismissed six of the Defendants for failure to state a claim. Dkt. No. 7. The remaining Defendants were Triolo and the two sheriff deputies, Burbank 27 and Gillies. Burbank and Gillies were served and filed their answer. See Dkt. Nos. 19, 20, 23. 1 Therefore, if a court that determines a civil claim would impugn a plaintiffs criminal conviction, 2 || it may dismiss the civil claims without prejudice and allow the plaintiff to refile the claims once 3 plaintiff's conviction is reversed. See Mills v. City of Covina,

(9th Cir. 4 |} 2019).

Plaintiff’s Claims are Not Presently Heck-Barred 6 While Plaintiff spends his opposition lecturing the Court about the nature of the criminal 7 || justice system and his claims here, he fails to contest that a judgment in his favor as to each of his 8 || claims would necessarily imply the invalidity of any ultimate conviction on the criminal charges 9 || pending in state court (that is, if he ever decides to show up and resolve the criminal case). 10 || Therefore, because the underlying criminal case is still pending, the Court will stay the action 11 pending resolution of the underlying criminal case. See Wallace v. Kato,

, 393-94 12 || (2007) (‘Ifa plaintiff files a false arrest claim before he has been convicted (or files any other 5 13 || claim related to rulings that will likely be made in a pending or anticipated criminal trial), it is 14 || within the power of the district court ... to stay the civil action until the criminal case ... is 15 ended.”’). 16 Because for the time being Plaintiff has chosen not to face the state court criminal charges, 3 17 this case must be stayed. Given that there is no basis to know when or how the criminal case will S 18 || be resolved due to Plaintiff's ongoing failure to appear, the Court in its discretion will stay this 19 matter, administratively close the case, and will reopen the matter if and when the criminal case is 20 || resolved in a manner so as to allow these claims to proceed under Heck. Defendants’ motion to 21 dismiss is therefore DENIED without prejudice, and the Clerk is directed to administratively close 22 || the file. 23 24 IT IS SO ORDERED. 25 || Dated: 9/28/2020 26 7 Maepuread 3B. Md, □□□ HAYWOOD S. GILLIAM, JR. 27 United States District Judge 28