PAUL G. ROSENBLATT, District Judge.
Before the Court is Defendants' motion to dismiss. (Doc. 11.) Plaintiff filed a response in opposition (Doc. 12), to which Defendants replied (Doc. 13). Having reviewed the pleadings, and determined that oral argument is unnecessary, the Court issues the following Order.
On May 18, 2012, Plaintiff filed a complaint in Maricopa County Superior Court alleging claims of assault, excessive force, false arrest/false imprisonment, civil rights violations under 42 U.S.C. § 1983, negligent hiring/supervision/retention, intentional infliction of emotion distress, negligent infliction of emotional distress, battery, and negligence. (Doc. 1, Ex. A.) The case was removed to this Court on June 28, 2011. (Doc. 1.)
Plaintiff was arrested on May 20, 2011, after being kicked out of a restaurant in Tempe for failing to pay his bill. The arrest was made by Defendant Whitney Jurjevich, of the Tempe Police Department. Plaintiff alleges that Officer Jurjevich "unnecessarily used excessive force by aggressively grabbing [Plaintiff's] arm, punching him, wrestling him to the ground, tasing and eventually hog-tying him." ( Id., Ex. A, ¶ 15.) At the time of the incident there was a warrant for Plaintiff's arrest on an assault charge. (Doc. 11, Ex. 1.)
Plaintiff was charged with one count of aggravated assault against Officer Jurjevich and one count of resisting arrest. The jury found Plaintiff guilty of resisting arrest, but acquitted him of aggravated assault. (Doc. 11, Ex. 2.) His conviction was affirmed by the Arizona Court of Appeals. (Doc. 14, Ex. A.)
I. Rule 12(b)(6)
Defendants move to dismiss the complaint for failure to state a claim under Rule 12(b)(6) of the Federal Rules of Civil Procedure. (Doc. 11.) When evaluating a Rule 12(b)(6) motion, the court must accept all material allegations in the complaint as true, and construe them in the light most favorable to the non-moving party. Moyo v. Gomez, 32 F.3d 1382, 1384 (9th Cir. 1994). "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Dismissal is proper when the complaint does not make out a cognizable legal theory or does not allege sufficient facts to support a cognizable legal theory. Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008).
II. § 1983 claim
Defendants argue that Heck v. Humphrey, 512 U.S. 477 (1994), requires the dismissal of Plaintiff's claims. In Heck, the Supreme Court held that a plaintiff who is convicted of a crime under state law cannot seek damages in a § 1983 action if a judgment in his favor "would necessarily imply the invalidity of his conviction or sentence." Id. at 487. The Court specifically noted that a successful § 1983 action premised on a police officer's use of excessive force during an arrest would necessarily imply the invalidity of the plaintiff's conviction for resisting that arrest in a state where the lawfulness of the resisted arrest was an element of the resisting arrest offense. Id. at 486 n.6. To pursue such a claim, a plaintiff must prove that the underlying conviction has been reversed on appeal or otherwise invalidated. Id. As noted above, Plaintiff's resisting arrest conviction was affirmed on appeal.
In Arizona, a person commits the crime of resisting arrest when he intentionally prevents an officer from "effecting an arrest" by (1) using force or threatening to use force against the officer, or (2) creating a "substantial risk" of injury to the officer. A.R.S. § 13-2508. A person can be found guilty of resisting arrest only if the arresting officer's conduct when making the arrest was lawful. Mitchell v. Demski, CV 06-0969-PHX-MHM (MHB), 2007 WL 2023471, at *4 (July 11, 2007). A person cannot justifiably use force to resist arrest unless the officer uses unlawful-i.e., excessive-physical force. See A.R.S. § 13-404(B)(2); State v. Fontes, 195 Ariz. 229, 232, 986 P.2d 897, 900 (App.1998). The district court in Mitchell considered a § 1983 claim of a person who had been convicted of resisting arrest and assault. Applying Heck, the court examined plaintiff's claim that officers used excessive force during their attempt to arrest him. Mitchell, 2007 WL 2023471, at *4. Because success on the plaintiff's § 1983 claim "would necessarily imply the invalidity" of his conviction, the court held that the claim was barred by Heck. Id.
Plaintiff argues that a successful § 1983 claim would not necessarily invalidate his conviction for resisting arrest because "reading the facts as alleged in the Complaint most favorably to Mr. Hall, Defendant Jurjevich's conduct occurred subsequent to any alleged resistance' to the officer trying to affect an arrest." (Doc. 12 at 3.) Plaintiff cites Smith v. City of Hemet, 394 F.3d 689 (9th Cir. 2005) (en banc), and Sanford v. Motts, 258 F.3d 1117 (9th Cir. 2001). In Smith, the Ninth Circuit considered the excessive force allegations of a prisoner who pled guilty to resisting arrest pursuant to Cal.Penal Code § 148(a)(1). The court concluded that the claims were not barred by Heck "because the excessive force may have been employed against him subsequent to the time he engaged in the conduct that constituted the basis for his conviction." 394 F.3d at 693. Similarly, in Sanford the court explained that "if [the officer] used excessive force subsequent to the time Sanford interfered with [the officer's] duty, success in her section 1983 claim will not invalidate her conviction. Heck is no bar." 258 F.3d at 1120.
As established by these cases, Heck does not bar excessive force claims based on police conduct that occurred "separate and independent" from the facts giving rise to the conviction. The Heck bar applies, however, where the alleged wrongful conduct that forms the basis of the § 1983 claim "is part of a single act" for which the plaintiff was already convicted. See Cunningham v. ...