1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10

11 SHAWN MARSHALL TOMPKINS, ) Case No.: 1: 22-cv-1415 JLT EPG (PC) ) 12 Plaintiff, ) ORDER ADOPTING FINDINGS AND ) RECOMMENDATIONS, GRANTING THE 13 v. ) PARTIES’ REQUESTS FOR JUDICIAL NOTICE, ) GRANTING DEFENDANTS’ MOTION TO 14 S. THOMAS, et al., ) DISMISS, AND DIRECTING THE CLERK OF ) COURT TO CLOSE THE CASE 15 Defendants. ) ) (Docs. 27, 28, 38, and 41) 16 )

17 Shawn Tompkins asserts he suffered violations of his civil rights while confined at the Wasco 18 State Prison Reception Center. Plaintiff contends Defendants used excessive force in violation of the 19 Eighth Amendment in an incident that occurred on March 27, 2020. (Docs. 1, 12.) Defendants move 20 to dismiss the complaint, asserting Plaintiff’s claim is barred under the favorable termination rule of 21 Heck v. Humphrey

(1994), because success on the merits would imply the invalidity of a 22 Rules Violation Report and state court conviction related to the underlying incident. (Doc. 27.) 23 The magistrate judge noted Defendants sought judicial notice of documents from the criminal 24 case and related RVR, and Plaintiff requested judicial notice of the prison grievances that he filed 25 related to the incident. (Doc. 41 at 8-10.) The magistrate judge found judicial notice was proper for 26 the state court criminal documents. (Id. at 9.) In addition, the magistrate judge found judicial notice 27 was appropriate for the RVR documents and grievances for the limited purpose of resolving the 28 pending motion, without accepting the accuracy or assuming the truth of the allegations contained in 1 the documents. (Id. at 9-10.) Thus, the magistrate judge recommended the Court recommend the 2 requests for judicial notice be granted in part. (See id.) 3 The magistrate judge noted that in the criminal case, “Plaintiff pleaded no-contest as to… one 4 count of violating California Penal Code § 69 as to Defendant Salazar.” (Doc. 40 at 12.) In addition, 5 the magistrate judge noted that in his opposition to the pending motion, “Plaintiff concedes that [during 6 the criminal action and plea proceedings] he stipulated to the allegations in the criminal complaint.” 7 (Id. at 10.) The criminal complaint incorporated a report by prison officials related to the underlying 8 incident and addressed the use of force—if any—by each of the defendants to stop Plaintiff from 9 attacking prison staff. (Id. at 12-13.) The magistrate judge observed that “under Heck, Plaintiff ‘cannot 10 stipulate to the lawfulness’ of Defendants use of force in the criminal case “and then use the ‘very same 11 act’ to allege an excessive force claim under § 1983.” (Id. at 14, quoting Sanders v. City of Pittsburg, 12

(9th Cir. 2021).) The magistrate judge determined: 13 Because the facts that Plaintiff agreed to in his criminal proceedings— that he was the aggressor who attacked Defendants without provocation, 14 that certain Defendants only used their physical strength and holds to subdue him, and that other Defendants used no force at all—are 15 fundamentally inconsistent with his excessive-force allegations in the complaint, he cannot pursue his claim in this case, until his criminal 16 conviction is invalidated.

17 (Id.) Likewise, the magistrate judge found Plaintiff’s allegations and claim conflicted with the RVR 18 finding of guilt, which was not expunged. (Id. at 15.) Therefore, the magistrate judge recommended 19 “Defendants’ motion to dismiss based on the favorable termination rule be granted and that this case 20 be dismissed.” (Id. at 14; see also id. at 16.) 21 The Court served the Findings and Recommendations on all parties and notified them that any 22 objections were due within 30 days. (Doc. 41 at 16.) The Court advised Plaintiff that the “failure to 23 file objections within the specified time may result in the waiver of rights on appeal.” (Id., citing 24 Wilkerson v. Wheeler,

(9th Cir. 2014).) Plaintiff did not file objections, and the 25 time to do so has passed. 26 According to

(b)(1), this Court performed a de novo review of this case. 27 Having carefully reviewed the matter, the Court concludes the Findings and Recommendations are 28 supported by the record and proper analysis. Thus, the Court ORDERS: 1 1. The Findings and Recommendations dated May 1, 2024 (Doc. 41) are ADOPTED. 2 2. Defendants’ request for judicial notice (Doc. 28) is GRANTED in part. 3 3. Plaintiff's request for judicial notice (Doc. 38) is GRANTED in part. 4 4, Defendants’ motion to dismiss (Doc. 27) is GRANTED. 5 5. The action is DISMISSED without prejudice. 6 6. The Clerk of Court is directed to close this case. 7 8 IT IS SO ORDERED. Dated: _ June 6, 2024 ( Li pA wan 10 TED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28