79 F.3d 951 (9th Cir. 1996), 95-15821, Smithart v. Towery

Docket Nº:95-15821.
Citation:79 F.3d 951
Party Name:D.A.R. 3722 John Wesley SMITHART, Plaintiff-Appellant, v. Robert TOWERY; John A. Knight; Scott McGregor, Defendants-Appellees.
Case Date:April 01, 1996
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 951

79 F.3d 951 (9th Cir. 1996)

D.A.R. 3722

John Wesley SMITHART, Plaintiff-Appellant,

v.

Robert TOWERY; John A. Knight; Scott McGregor, Defendants-Appellees.

No. 95-15821.

United States Court of Appeals, Ninth Circuit

April 1, 1996

Submitted Feb. 27, 1996. *

John Wesley Smithart, Reno, Nevada, pro se.

Page 952

Gregory R. Shannon, Deputy District Attorney, Reno, Nevada, for defendants-appellees Towery and Knight.

Laurie B. Buck, Deputy Attorney General, Department of Motor Vehicles & Public Safety, Carson City, Nevada, for defendant-appellee McGregor.

Appeal from the United States District Court for the District of Nevada; Howard D. McKibben, District Judge, Presiding. No. CV-94-00110-HDM.

Before: PREGERSON, CANBY, and HAWKINS, Circuit Judges.

PER CURIAM:

Nevada state prisoner John Wesley Smithart appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 action. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo, Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir.1989), cert. denied, 496 U.S. 937, 110 S.Ct. 3217, 110 L.Ed.2d 664 (1990), and affirm in part, vacate in part, and remand.

We are called upon to apply the rule of Heck v. Humphrey, --- U.S. ----, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), to an action under 42 U.S.C. § 1983 which seeks damages for, inter alia, excessive force applied during the course of an arrest which resulted in Smithart's criminal conviction. Heck precludes a section 1983 claim based on actions which would "render a conviction or sentence invalid" where that conviction has not been reversed, expunged or called into question by issuance of a writ of habeas corpus. Heck, --- U.S. at ----, 114 S.Ct. at 2372. Heck, in other words, says that 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.

Here, Smithart entered a plea pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970), to assault with a deadly weapon. The weapon in question was Smithart's 1973 Chevrolet truck which he drove at defendants, a Washoe County Sheriff's deputy and a Nevada Highway patrolman. These officers had effected a traffic stop of Smithart's son on Smithart's property.

In his 1983...

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