MARIA-ELENA JAMES, Magistrate Judge.
Pro se Plaintiff Adam Scott Kowarsh sued Defendants,
Plaintiff filed this action pro se on December 3, 2014. Compl., Dkt. No. 1. The Court granted Plaintiff's Motion to Proceed In Forma Pauperis but dismissed Plaintiff's Complaint for failure to state a claim upon which relief could be granted. Dkt. No. 6. Specifically, while the Court found that Plaintiff "appear[ed] to allege potential claims under 42 U.S.C. § 1983 and related state law claims surround[ing] his arrest and subsequent prosecutions," the Court was ultimately unable to determine the nature of his allegations as written. Id. at 5. The Court noted that "Plaintiff's Complaint is largely devoid of facts or allegations that adequately identify the named defendants and establish causation and harm as to each of them." Id. In dismissing Plaintiff's Complaint, the Court also granted Plaintiff leave to amend. Id. at 1. Plaintiff filed his FAC, the operative complaint, on January 5, 2015.
According to his FAC, Plaintiff is a "disabled California medicinal cannabis patient." FAC ¶ 9. Plaintiff contends that he was "written a cannabis possession citation despite valid identification which represented a valid medical doctor's recommendation." Id. ¶ 9. Plaintiff alleges that Defendant police officer Anthony Heckman wrote him the citation while Plaintiff was walking on private property. Id. ¶¶ 10, 23. Plaintiff alleges that the citation was a crime, as was the fact that Heckman "did not turn that citation in[.]" Id. ¶ 22. Additionally, Plaintiff alleges that Heckman "attacked" him and searched him without Plaintiff's consent, including by "forcibly" searching Plaintiff's genitals in front of Heckman's female partner. Id. ¶¶ 10, 22.
Plaintiff alleges that he was "despondent about being attacked, kidnapped, and charged as MY blood was being drawn" and that Heckman "insisted" Plaintiff be "charged, and convicted, despite my Clean Blood." Id. ¶ 10. Plaintiff asserts that he was "subsequently charged with public intoxication of Toluene, a charge my blood was taken to support." Id. ¶ 9. Plaintiff alleges that he "gave blood evidence which proved his innocence" but was never allowed to use the blood evidence to defend his own innocence. Id. ¶¶ 4, 5, 9. Plaintiff's SAC indicates that this arrest and search occurred on "June 1/2, 2009." SAC at 5.
Plaintiff alleges that Defendant Gregory O'Connell is the man who maliciously prosecuted him and conspired to suppress blood evidence. FAC ¶ 12. Defendant John Jay is the man who walked into the courtroom and spoke to O'Connell and who saw that Plaintiff "had an accident as I exited the BART restroom." Id. ¶ 11. Defendant Graciela Estrada-Scaminaci is "the lady" to whom Plaintiff alleges he shouted "But I'm Not Guilty" when she told Plaintiff to accept the plea bargain, "despite the command before entering the courtroom Not to Plea because I am INNOCENT and have both Blood Evidence and a Countersuit." Id. ¶ 13. Plaintiff alleges that Estrada-Scaminaci "misrepresented me into accepting the `Plea' under the auspices of a countersuit." Id. Defendants Song Kim and Aminder Singh are Public Defenders, who Plaintiff alleges committed "malicious prosecution despite exonerating evidence." Id. ¶ ¶ 14-15.
Plaintiff alleges that he complained to the Newark Police Department, "where every effort was made to confound any accountability to receive complaint or faithfully administer any form of adequately accountability, a contempt demonstrated in the e-mailed correspondence with JAMES LEAL and MICHAEL CARROLL." Id. ¶ 6. Defendant James Leal is the Chief of Police at the Newark Police Department, who Plaintiff alleges "attempted to confound complaint first by handing the complaint off to MICHAEL CARROLL." Id. ¶ 16. According to Plaintiff, Leal "was Aware of every condition I wrote him about" but "did not adequately address any aspect of complaint" and "attempted to subvert accountability." Id.
Plaintiff alleges that Defendant Michael Carroll is "the officer most aware of the conditions" Plaintiff complained about. Id. ¶ 17. Plaintiff states that Carroll remembers Plaintiff "serving 17 days for unsubstantiated terrorist threat charges" made by a woman to rob Plaintiff of over "$420 worth of property." Id. Plaintiff also alleges that Carroll knows that Plaintiff was "pepper-sprayed through a little sliding peephole in a closed steel door" while he sat "handcuffed on the floor." Id. Plaintiff also asserts that Carroll "might be the guy with information" about a person in "FPD homicide" who Plaintiff alleges "killed a young man who resembled [Plaintiff], for looking like the Snitch who got on an AC transit bus." Id. Additionally, Plaintiff contends that Carroll is "most likely the man to ask about why RICHARD PRIEST had a shoebox from before Mr. Morrison was a Captain at Fremont Police Department, but RICHARD PRIEST is missing the same time" as a woman was "out of Newark, vanished, as his Mother filed missing person's reports." Id. Finally, Plaintiff alleges that Carroll "fought harder than anyone else at the NEWARK POLICE DEPARTMENT to defend" Heckman." Id.
Plaintiff asserts that he learned that "not one `Oath of Office' document is notarized, and that MICHAEL CARROLL does not have a date on his `Oath of Office' document." Id. ¶ 7. Plaintiff also asserts claims against two City Clerks, Defendants Ted Yamasaki and John Robertson, who Plaintiff alleges are accessories "because they failed so dramatically at their station as to put my constitutional rights in imminent risk by co-Defendants." Id. ¶¶ 18-19.
Plaintiff further alleges that Defendant Jerry Tutterow, a security guard, is registered "with the DoJ, to whom I complained in regards to him." Id. ¶ 20. He is "Defendant's Accessory and Conspirator." Id. Elsewhere, Plaintiff alleges that Heckman conspired with Tutterow to "confound complaint in conspiracy subversive to California law." Id. ¶ 3.
Plaintiff states that he has been a psychiatric medicine patient since he was 16, and on Social Security Permanent Disability for Schizo-Affective disorder with insomnia and anxiety since 1998. Id. ¶ 9. Plaintiff alleges that his hospitalizations had tapered off "to almost nil with symptom management before November 2013, but that two "episodes" put him into the John-George Psychiatric Pavilion in San Leandro, CA, "because of [Tutterow] discussing his association with [Heckman]." Id. Plaintiff now seeks over $142 billion in damages from Defendants, "DUE and PAYABLE to [Plaintiff], by February 1st, 2015." Id. at 6.
The City Defendants filed their Motion to Dismiss on February 25, 2015, and the Attorney Defendants filed their Motion to Dismiss on March 4, 2015. Among other things, the City Defendants argue that Plaintiff's claims are barred by the statute of limitations and otherwise fail to state a claim against them for violations of 42 U.S.C. §§ 1983 and 1986. City Defs. Mot. at 1, 3. The Attorney Defendants likewise challenge Plaintiff's FAC, contending that Plaintiff's claims against them are barred by two Supreme Court rulings: (1) Heck v. Humphrey, which prohibits Plaintiff from bringing a civil rights claim that would necessarily imply the invalidity of his earlier conviction or sentence; and (2) Imbler v. Pachtman, which makes prosecutors absolutely immune from civil suits for damages under § 1983 that challenge activities related to their prosecutorial functions. Att'y Defs.' Mot. at 1-2. Plaintiff filed his Motion for Leave to Amend/Correct and file his proposed Second Amended Complaint ("SAC") on March 5, 2015. Dkt. Nos. 21 (Mot.) and 21-1 (SAC). The City Defendants and the Attorney Defendants oppose Plaintiff's Motion on substantially similar grounds as asserted in their Motions to Dismiss.
Under Rule 12(b)(6), a party may file a motion to dismiss based on the failure to state a claim upon which relief may be granted. A Rule 12(b)(6) motion challenges the sufficiency of a complaint as failing to allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A facial plausibility standard is not a "probability requirement" but mandates "more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotations and citations omitted). For purposes of ruling on a Rule 12(b)(6) motion, the court "accept[s] factual allegations in the complaint as true and construe[s] the pleadings in the light most favorable to the non-moving party." Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). "[D]ismissal may be based on either a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th Cir. 2008) (internal quotations and citations omitted); see also Neitzke v. Williams, 490 U.S. 319, 326 (1989) ("Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law.").
Even under the liberal pleading standard of Rule 8(a)(2), under which a party is only required to make "a short and plain statement of the claim showing that the pleader is entitled to relief," a "pleading that offers `labels and conclusions' or `a formulaic recitation of the elements of a cause of action will not do.'" Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555). "[C]onclusory allegations of law and unwarranted inferences are insufficient to defeat a motion to dismiss." Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004); see also Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011) ("[A]llegations in a complaint . . . must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively"). The court must be able to "draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 663. "Determining whether a complaint states a plausible claim for relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679.
Pro se pleadings are also subject to Rule 8(a)(2). Brazil v. U.S. Dept. of Navy, 66 F.3d 193, 199 (9th Cir. 1995). However, pleadings of pro se litigants are held to even less rigid standards than those drafted by attorneys. Boag v. MacDougall, 454 U.S. 364, 365 (1982) (citing Haines v. Kerner, 404 U.S. 519, 520 (1972)). "Courts have a duty to construe pro se pleadings liberally, including pro se motions as well as complaints." Bernhardt v. Los Angeles Cnty., 339 F.3d 920, 925 (9th Cir. 2003). While a pro se plaintiff's pleadings will be construed with great leeway, "those pleadings nonetheless must meet some minimum threshold in providing a defendant with notice of what it is that it allegedly did wrong." Brazil, 66 F.3d at 199. "When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief." Iqbal, 556 U.S. at 679.
If a Rule 12(b)(6) motion is granted, the "court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts." Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) (en banc) (internal quotation marks and citations omitted); see also Gillespie v. Civiletti, 629 F.2d 637, 640 (9th Cir. 1980) (plaintiffs should be given "an opportunity to amend (their) complaint(s) to overcome any deficiency unless `it clearly appears . . . that the deficiency cannot be overcome by amendment.'" (citations omitted)). "Dismissal of a pro se complaint without leave to amend is proper only if it is absolutely clear that the deficiencies of the complaint could not be cured by amendment." Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir. 2007) (citation omitted).
Rule 15 provides that a party may amend its pleading once as a matter of course within (1) 21 days after serving the pleading or (2) 21 days after the earlier of service of a responsive pleading or service of a Rule 12(b) motion. Fed. R. Civ. P. 15(a)(1). Outside of this timeframe, "a party may amend its pleading only with the opposing party's written consent or the court's leave," though the court "should freely give leave when justice so requires." Fed. R. Civ. P. 15(a)(2). "Although the rule should be interpreted with `extreme liberality,' leave to amend is not to be granted automatically." Jackson v. Bank of Hawaii, 902 F.2d 1385, 1387 (9th Cir. 1990) (citation omitted).
A court considers five factors in determining whether to grant leave to amend: "(1) bad faith, (2) undue delay, (3) prejudice to the opposing party, (4) futility of amendment; and (5) whether plaintiff has previously amended his complaint." In re Western States Wholesale Nat. Gas Antitrust Litig., 715 F.3d 716, 738 (9th Cir. 2013) (quoting Allen v. City of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990)). "Prejudice to the opposing party is the most important factor." Jackson, 902 F.2d at 1387. And the party opposing amendment bears the burden of showing prejudice. DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 187 (9th Cir. 1987). Generally, a court must make the determination of whether to grant leave "with all inferences in favor of granting the motion." Griggs v. Pace Am. Grp., Inc., 170 F.3d 877, 880 (9th Cir. 1999).
Likely in a lack of familiarity with court procedures, Plaintiff filed both a Motion for Leave to File a Second Amended Complaint and then later a third amended complaint, which he filed without Defendants' consent or leave of Court. Although Plaintiff filed his Motion for Leave to File a Second Amended Complaint in the midst of Defendants filing their Motions to Dismiss, the Court is willing to consider that Motion in parallel with Defendants' Motions to Dismiss, as Plaintiff's Motion was properly filed and noticed. See Fed. R. Civ. P. 15(a) (noting that after the time to file an amended pleading "as a matter of course" the party seeking to amend may only do so with the "opposing party's written consent or the court's leave."). But as to Plaintiff's "3rd Amended Original Complaint", the Court will not consider that document and
Turning to Plaintiff's Motion for Leave to Amend and Defendants' Motions to Dismiss, the Court notes that the viability of Plaintiff's Motion turns in part on whether his proposed claims are futile, which substantially overlaps with Defendants' Motions to Dismiss under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. See Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988) (a proposed amendment is futile if it would not survive a motion to dismiss for failure to state a claim under Rule 12(b)(6)). As discussed below, because the Court finds that the FAC and proposed SAC fail to state a claim, the Court
Jay and O'Connell are Deputy District Attorneys with the Alameda County District Attorney's Office. McKay Decl., Exs. 1-2, Dkt. No. 19-1. As the Attorney Defendants note, Plaintiff's "claims against [them] appear to be based on allegations involving the District Attorney's and Defendants Jay's and O'Connell's initiation and prosecution of State criminal proceedings against Plaintiff (action #234111-2)." Att'y Defs.' Opp'n at 2-3 (citing McKay Decl., Exs. 3-5).
Defendants Jay and O'Connell move to dismiss Plaintiff's FAC on the ground that Plaintiff fails to state a claim against them for which relief can be granted, and similarly challenge Plaintiff's Motion to Amend on the basis that Plaintiff's claims against them are futile on the same ground. Specifically, Defendants contend that Plaintiff's claims against them are barred the Supreme Court's decisions of Imbler v. Pachtman, 424 U.S. 409 (1976) and Heck v. Humphrey, 512 U.S. 477 (1994). Att'y Defs.' Opp'n at 2-8.
In Heck, the plaintiff named the county prosecutors as defendants, alleging among other things that they had engaged in an "unlawful, unreasonable, and arbitrary investigation" leading to plaintiff's arrest and had "knowingly destroyed" evidence "which was exculpatory in nature and could have proved [plaintiff's] innocence[.]" 512 U.S. at 479 (citations omitted). The Supreme Court found that the plaintiff's § 1983 claim was analogous to the common law cause of action for malicious prosecution because it permits damages for a sentence "imposed pursuant to legal process." Id. at 484. As such, the Supreme Court held that "[o]ne element that must be alleged and proved in a malicious prosecution action is termination of the prior criminal proceeding in favor of the accused." Id. (citations omitted).
As a result of the Supreme Court's ruling, the Ninth Circuit has affirmed that "[u]nder Heck v. Humphrey, [the plaintiff] cannot recover damages in a § 1983 suit if a judgment in favor of the plaintiff `would necessarily imply the invalidity of his conviction or sentence . . . unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated.'" Guerrero v. Gates, 442 F.3d 697, 703 (9th Cir. 2006) (quoting Heck, 512 U.S. at 487). Stated another way, if a judgment in favor of a plaintiff on his civil rights claim will necessarily imply the invalidity of his conviction or sentence, the claim must be dismissed unless the plaintiff can demonstrate that the conviction or sentence already has been invalidated. Whitaker v. Garcetti, 486 F.3d 572, 584 (9th Cir. 2007) ("[T]he sole dispositive question is whether a plaintiff's claim, if successful, would imply the invalidity of his conviction."). Additionally, since Heck, the Ninth Circuit has recognized that malicious prosecution claims brought under § 1983 only accrue upon favorable termination of the underlying criminal proceeding. See Cabrera v. City of Huntington Park, 159 F.3d 374, 382 (9th Cir. 1998) (plaintiff's "malicious prosecution claim did not accrue until his acquittal"); RK Ventures, Inc. v. City of Seattle, 307 F.3d 1045, 1060 n.11 (9th Cir. 2002) ("a claim of malicious prosecution does not accrue until the plaintiff is acquitted, because acquittal is an element of the claim").
Heck bars Plaintiff's claims against the Attorney Defendants for two primary reasons. First, under Heck and its successor precedents, Plaintiff cannot provide evidence to prove a fundamental element of his malicious prosecution claim—namely, that the underlying criminal proceeding ultimately concluded in his favor. Heck, 512 U.S. at 483-87 (§ 1983 claim not cognizable because allegations were akin to malicious prosecution claim, which includes as an element that the criminal proceeding was concluded in plaintiff's favor).
Second, if Plaintiff had the opportunity to litigate this case and was ultimately successful in showing that Defendants Jay and O'Connell maliciously prosecuted him in the underlying criminal case by charging him despite exculpatory evidence, then that success calls into question the state judgment convicting Plaintiff. Cf. Thornton v. Brown, 757 F.3d 834, 843 (9th Cir. 2013) ("a claim does not `necessarily imply' the invalidity of a conviction or sentence under Heck unless its success will `inevitably' call into question the state court judgment that led to the plaintiff's custody." (citations omitted)). While the matter is somewhat complicated here because Plaintiff's conviction is based on his own no contest plea, as discussed below, the Court cannot see how it could grant Plaintiff relief that would not call into question his earlier plea.
In recent decisions, the Ninth Circuit has recognized the so-called "Heck bar" does not necessarily apply to cases where the Plaintiff's conviction was based upon a no contest plea. See Lockett v. Ericson, 656 F.3d 892 (9th Cir. 2011), cited with approval in Jackson v. Barnes, 749 F.3d 755, 760 (9th Cir. 2014), cert. denied, 135 S.Ct. 980 (2015). In Lockett, police officers suspected the plaintiff of driving under the influence of alcohol and entered his home to obtain evidence, including by having the plaintiff take a breathalyzer and field sobriety tests. 656 F.3d at 894. The plaintiff did not successfully complete those tests, and after his arrest, he subsequently moved to suppress that evidence based on allegations that the police seized that evidence without a warrant in violation of his Fourth Amendment rights. Id. at 894-95. The criminal court denied the motion to suppress, and the plaintiff then pled no contest to a lesser charge, a "wet reckless." Id. at 895. The plaintiff was put on probation for three years. Id. The plaintiff then filed a civil complaint under 42 U.S.C. § 1983, which the district court found was barred by Heck v Humphrey. Id. On appeal, the Ninth Circuit found that the plaintiff's subsequent § 1983 action was not barred by Heck, reasoning that because plaintiff pled no contest, his "conviction derives from his plea, not from a verdict obtained with supposedly illegal evidence. The validity of Lockett's conviction does not in any way depend upon the legality of the search of his home." Id. at 897 (internal quotations and citations omitted).
Lockett relied on an earlier Ninth Circuit precedent, Ove v. Gwinn, 264 F.3d 817 (9th Cir. 2001), where two plaintiffs who had entered pleas of guilty and nolo contendere in their criminal proceedings later challenged the blood tests taken after their DUI arrests. Id. at 823. The Ove Court found that Heck was inapplicable because the validity of those plaintiffs' convictions "does not in any way depend upon the legality of the blood draws." Id. The Ninth Circuit explained that "a judgment in [plaintiffs'] favor will not imply the invalidity of their DUI convictions because the convictions do not depend upon the blood draws." Id. Therefore, in this case, the fact that Plaintiff pled no contest to his criminal conviction does not automatically mean his claim is barred by Heck. See also discussions in Leon v. San Jose Police Dep't, 2013 WL 5487543, at *3-4 (N.D. Cal. Sep. 30, 2013) and Cooley v. City of Vallejo, 2014 WL 3749369, at *3 (E.D. Cal. July 29, 2014), report and recommendation adopted, 2014 WL 4368141 (E.D. Cal. Sept. 2, 2014) (discussing divergence of Ninth Circuit precedents for applying Heck bar in cases where plaintiff pled guilty or no contest in underlying criminal proceedings).
The difference between this case and the Lockett and Ove precedents is that here Plaintiff asserts claims for malicious prosecution against the charging prosecutors, whereas in those cases the claims were related to the methods used by police to obtain evidence. The Lockett and Ove plaintiffs' pleas of guilty and no contest were not inconsistent with their claims that police obtained evidence against them in a way that violated their constitutional rights. But in this case Plaintiff's plea of no contest is inconsistent with his claim that Defendants Jay and O'Connell maliciously prosecuted him because it essentially suggests that Plaintiff did, in fact, contest the criminal charges against him.
In Rosales-Martinez v. Palmer, the Ninth Circuit recently considered a similar situation where the plaintiff filed a § 1983 complaint after pleading guilty and serving time for the guilty charge. 753 F.3d 890, 897 (9th Cir. 2014). The Court of Appeal noted that this meant that the plaintiff still had an outstanding conviction, which "raises the question whether [plaintiff]'s § 1983 action is barred by Heck's holding that "[a] claim for damages [based] on a conviction or sentence that has not been so invalidated is not cognizable." Id. (citing Heck, 512 U.S. at 487). The Ninth Circuit ordered the lower court to consider this issue on remand, noting that the district court may "wish to consider whether any of the facts [plaintiff] allocuted to in his December 2, 2008 plea are inconsistent with his allegations in this § 1983 action." Id. at 899. Although the Ninth Circuit did not spell out what sort of inconsistency would make a no contest or guilty plea barred by Heck, it implied that such an inconsistency was possible.
The Court finds that such an inconsistency is present here. If Plaintiff successfully showed that Defendants Jay and O'Connell maliciously prosecuted him by ignoring exculpatory blood evidence, this would reveal an inconsistency with his no contest plea by suggesting that he contested the charges against him and had evidence to support his opposition. At bottom, his current claim implies that the sentence he served as part of his no contest plea was invalid. See Blumberg v. Hewitt, ___ Fed. App'x ___, 2015 WL 1534414, at *1 (9th Cir. Apr. 7, 2015). Under the Supreme Court's ruling in Heck, this Court cannot hear claims that imply the invalidity of Plaintiff's conviction. Consequently, Plaintiff's malicious prosecution claims against the Attorney Defendants as presently alleged in his FAC and his proposed SAC are not properly adjudicated in this action.
Even if Plaintiff could show that his sentence was set aside or provide some other reason why his no contest plea is not inconsistent with his malicious prosecution claims, Plaintiff's claims against the Attorney Defendants are nevertheless barred under the Supreme Court's ruling in Imbler. Imbler held that "in initiating a prosecution and in presenting the State's case," the prosecutor is immune from a civil suit for damages under § 1983. 424 U.S. at 430-31. "This immunity covers the knowing use of false testimony at trial, the suppression of exculpatory evidence, and malicious prosecution." Milstein v. Cooley, 257 F.3d 1004, 1008 (9th Cir. 2001) (citing Imbler, 424 U.S. at 416; footnote omitted).
As noted above, Plaintiff's claims against the Attorney Defendants appear to relate to their decision to prosecute Plaintiff despite knowledge of exculpatory blood evidence. The Supreme Court confronted a similar fact pattern in Imbler, where the plaintiff alleged that, among other things, the defendant prosecutor had "prosecuted him with knowledge of a lie detector test that had `cleared' [him]." 424 U.S. at 416. The Supreme Court affirmed the Court of Appeals' decision that such "activities [by the prosecutor] were intimately associated with the judicial phase of the criminal process, and thus were functions to which the reasons for absolute immunity apply with full force." Id. at 430. In affirming, the Supreme Court noted that "[t]o be sure, this immunity does leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty. But the alternative of qualifying a prosecutor's immunity would disserve the broader public interest. It would prevent the vigorous and fearless performance of the prosecutor's duty that is essential to the proper functioning of the criminal justice system." Id. at 427-28. Accordingly, the Court held that the prosecutor was entitled to absolute immunity.
The rule adopted in light of Imbler is that "[p]rosecutors performing their official prosecutorial functions are entitled to absolute immunity against constitutional torts." Lacey v. Maricopa Cnty., 693 F.3d 896, 912 (9th Cir. 2012) (en banc). The Ninth Circuit has acknowledged that "[d]etermining what functions are prosecutorial is an inexact science." Id. It explained that "[p]rosecutors are absolutely immune from liability for the consequences of their advocacy, however inept or malicious, because it is filtered through a neutral and detached judicial body; they are not necessarily immune for actions taken outside this process, including actions logically—though not necessarily temporally—prior to advocacy, such as those `normally performed by a detective or police officer,' like gathering evidence, [] and those separate from the process, like providing legal advice to the police[.]" Id. at 913 (citations omitted).
Plaintiff's FAC and SAC only allege facts suggesting that the Attorney Defendants took actions related to their prosecutorial functions, namely by alleging that they "maliciously prosecut[ed]" Plaintiff "despite exonerating evidence in the form of [Plaintiff's] own clean blood." SAC at 5; FAC ¶¶ 11-12. Plaintiff's allegations do not suggest that the Attorney Defendants' actions in any way related to actions taken outside the judicial process. Because Plaintiff's allegations relate to the district attorney's actions in performing functions intimately associated with the judicial phase of the criminal process, Plaintiff's claim must be dismissed on grounds of prosecutorial immunity. Imbler, 424 U.S. at 430.
The City Defendants also challenge Plaintiff's FAC under Rule 12(b)(6) as well as Plaintiff's proposed SAC on futility grounds. The City Defendants contend that Plaintiff's SAC fails for the same reasons as his FAC: specifically, they argue that (1) both Plaintiff's FAC and SAC fail to comply with Federal Rule of Civil Procedure 8; (2) Plaintiff's claims are barred by the statute of limitations; and (3) Plaintiff has failed to state a claim under 42 U.S.C. § 1983 or § 1986.
A statute of limitations defense may be raised in a motion to dismiss, and a claim may be dismissed as untimely "when the running of the statute is apparent from the face of the complaint." Vernon v. Heckler, 811 F.2d 1274, 1278 (9th Cir. 1987) (citing Conerly v. Westinghouse Elec. Corp., 623 F.2d 117, 119 (9th Cir. 1980)); see also U.S. ex rel. Air Control Techs., Inc. v. Pre Con Indus., Inc., 720 F.3d 1174, 1178 (9th Cir. 2013). "[S]uch a motion to dismiss should be granted only if the assertions of the complaint, read with the required liberality, would not permit the plaintiff to prove that the statute was tolled." Vernon, 811 F.2d at 1278 (quotations omitted). For purposes of a motion to amend, claims barred by the statute of limitations are futile. Platt Elec. Supply, Inc. v. EOFF Elec., Inc., 522 F.3d 1049, 1060 (9th Cir. 2008) (citing Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1298 (9th Cir. 1998) (the "general rule that parties are allowed to amend their pleadings . . . does not extend to cases in which any amendment would be an exercise in futility, or where the amended complaint would also be subject to dismissal . . . .")).
Plaintiff appears to allege claims against the City Defendants for violations of 42 U.S.C. §§ 1983 and 1986, and for libel and slander; thus, the question is whether these claims are timely. Before considering these claims individually, however, the Court finds some of Plaintiff's claims are tolled. Specifically, California Government Code section 945.3 provides:
(Emphasis added).
The first paragraph of section 945.3 is not applicable to § 1983 claims brought in federal court, but the tolling provision in the highlighted second paragraph does apply. Harding v. Galceran, 889 F.2d 906, 908 (9th Cir. 1989). The tolling provision operates only so long as the criminal charges are "pending," which means until the date of judgment and conviction. Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995). The state court record before the Court shows that the charges stemming from the June 1, 2009 arrest were pending at least until November 3, 2010, when Plaintiff entered a no contest plea. McKay Decl., Ex. 4. Thus, section 945.3 tolls the statute of limitations until at least November 3, 2010 on certain of Plaintiff's claims arising from events occurring before or during the time charges were pending against him. See Ortega v. Mattocks, 2014 WL 2812316, at *2 (N.D. Cal. June 20, 2014).
Plaintiff also appears to argue that his claims should be subject to tolling or equitable estoppel on the grounds that (1) Plaintiff was on probation until November 3, 2013; and (2) that another Defendant, Graciella Estrada-Scaminaci, told Plaintiff that he could not file a countersuit until two weeks after Plaintiff's probation. The Court is not persuaded that either of these arguments merit tolling or equitable estoppel.
As to the first argument related to Plaintiff's probation, California's two year tolling period prescribed by California Code of Civil Procedure section 352.1(a) does not apply, as Plaintiff was not incarcerated or otherwise significantly impaired in his ability to enforce his claim. See Cal. Code Civ. Proc. § 352.1(a)
Plaintiff's second argument that Defendant Estrada-Scaminaci told Plaintiff he would have to wait until after his probation to file suit is essentially an equitable estoppel claim. Under California law, equitable estoppel requires that: (1) the party to be estopped must be apprised of the facts; (2) that party must intend that his or her conduct be acted on, or must so act that the party asserting the estoppel had a right to believe it was so intended; (3) the party asserting the estoppel must be ignorant of the true state of facts; and (4) the party asserting the estoppel must reasonably rely on the conduct to his or her injury. Honig v. S.F. Planning Dep't, 127 Cal.App.4th 520, 529 (2005). But Plaintiff has not pled that he relied on the City Defendants' misconduct in failing to file in a timely manner. Id. at 706-07. Nor does he allege that they took any actions to prevent Plaintiff from filing on time. Lukovsky, 535 F.3d at 1051-52 ("California equitable estoppel is thus similar to and not inconsistent with federal common law, as both focus on actions taken by the defendant which prevent the plaintiff from filing on time." (citations omitted)). Furthermore, Plaintiff "must plead with particularity the facts which give rise to the claim of fraudulent concealment." Guerrero, 442 F.3d at 706-07 (quotation omitted). But Plaintiff has not pled with any particularity facts that would demonstrate that these Defendants' active conduct prevented Plaintiff from complying with the statute of limitations. While this Order does not consider any claims against Defendant Estrada-Scaminaci, neither Plaintiff's FAC or SAC as presently alleged show that the City Defendants should be equitably estopped from asserting the statute of limitations defense.
Accordingly, the Court finds that certain of Plaintiff's claims arising from events that occurred before or during the time that charges were pending against him are tolled under section 945.3 until at least November 3, 2010. But otherwise, Plaintiff is not entitled to tolling or equitable estoppel against the City Defendants for asserting a statute of limitations defense. The Court now considers the timeliness of each of Plaintiff's claims.
First, as to Plaintiff's libel/slander claims, under California Law, the statute of limitations for libel and slander is one year. Cal. Civ. Proc. Code § 340(c). In his SAC, Plaintiff admits that "the libel/slander continued until November 3, 2013, when the measure towards the statute of limitations began[.]" SAC at 7. Based on Plaintiff's admission, the statute of limitations for his libel/slander claim accrued at least by November 3, 2013, and Plaintiff was required to file suit within one year of that date, i.e., November 3, 2014. See Pouncil v. Tilton, 704 F.3d 568, 573 (9th Cir. 2012) ("A statute of limitations begins to run on the date on which the plaintiff's claim `accrues.'" (citation omitted)). However, by waiting to file his Complaint until December 3, 2014, the statute of limitations now bars Plaintiff's libel and slander claims. Accordingly, Plaintiff's libel and slander claims in both his FAC and SAC are dismissed as untimely and barred by the applicable statute of limitations.
Second, the Court considers whether Plaintiff asserted timely claims against the City Defendants for violations of §§ 1983 and 1986. Specifically, Plaintiff appears to allege violations of §§ 1983 and 1986 based on claims for malicious prosecution, unlawful search and seizure, and conspiracy.
Section 1983 does not contain its own statute of limitations, thus the federal courts traditionally apply the forum state's statute of limitations for personal injury actions, except to the extent inconsistent with federal law. See Butler v. Nat'l Cmty. Renaissance of Cal., 766 F.3d 1191, 1198 (9th Cir. 2014). California's statute of limitations for personal injury actions is two years. Cal. Civ. Proc. Code § 335.1. Section 1986 claims have a one year statute of limitations. 42 U.S.C. § 1986 ("no action under the provision of this section shall be sustained which is not commenced within one year after the cause of action has accrued."). The question then is when Plaintiff's claims accrued.
The accrual date of a § 1983 claim is a question of federal law. Wallace v. Kato, 549 U.S. 384, 388 (2007). Accrual occurs "when the plaintiff has `a complete and present cause of action,' . . . that is, when `the plaintiff can file suit and obtain relief[.]'" Id.; see also Canatella v. Van De Kamp, 486 F.3d 1128, 1133 (9th Cir. 2007) (the statute of limitations period began to run when Plaintiff knew or had reason to know of the injury that forms the basis of his action). "[A] § 1983 action is commenced in federal district court for purposes of the statute of limitations when the complaint is filed." Sain v. City of Bend, 309 F.3d 1134, 1138 (9th Cir. 2002). The same is true for Plaintiff's § 1986 claim. See Fed. R. Civ. P. 3.
As an initial matter, Plaintiff's malicious prosecution claim against the City Defendants appears to be related to the allegedly exculpatory blood evidence, and that claim is barred by Heck v. Humphrey as discussed above with the Attorney Defendants. A favorable judgment on this claim would necessarily imply the invalidity of Plaintiff's no contest plea as the claim is premised on the notion of Plaintiff's actual innocence. Under Heck, the Court may not hear this claim.
However, Heck and Plaintiff's no contest plea do not necessarily bar his claims for unlawful search and seizure. See Lockett, 656 F.3d at 897. Thus, the Court considers the City Defendants' challenge that the statute of limitations bars Plaintiff's unlawful search and seizure claims. "[U]nder federal law, a claim accrues when the plaintiff knows or has reason to know of the injury which is the basis of the action." Lukovsky v. City & Cnty. of San Francisco, 535 F.3d 1044, 1048 (9th Cir. 2008). With respect to Fourth Amendment claims for unlawful searches and seizures, the claim accrues at the time of the search or seizure. Venegas v. Wagner, 704 F.2d 1144, 1146 (9th Cir.1983) ("[W]here false arrest or illegal search and seizure is alleged, the conduct and asserted injury are discrete and complete upon occurrence, and the cause of action can reasonably be deemed to have accrued when the wrongful act occurs."). Plaintiff alleges that Officer Heckman unlawfully searched and seized him on June 1 or 2, 2009. SAC at 5. Accordingly, Plaintiff's § 1983 claims based on a violation of his Fourth Amendment right to be free from unreasonable search and seizure accrued, at the latest, on June 2, 2009. See Wallace, 549 U.S. at 388-90. Even if Plaintiff's claim is tolled until November 3, 2010 under California Government Code section 945.3, Plaintiff would have had to bring his § 1983 claims within two years of that date, i.e., November 3, 2010. As Plaintiff failed to file by that time, his wrongful search and seizure claims are barred by the statute of limitations.
As to Plaintiff's conspiracy claim, claims of civil conspiracy accrue in accordance with the "last overt act doctrine," under which the statute of limitations runs separately from each overt act that is alleged to have caused harm to the plaintiff. Gibson v. United States, 781 F.2d 1334, 1340 (9th Cir. 1986) ("[i]njury and damage in a civil conspiracy action flow from the overt acts, not from the mere continuance of a conspiracy." (citation omitted)). Consequently, a plaintiff may recover only for the overt acts that are specifically alleged to have occurred within the statute of limitations period. Id.
Officer Heckman's last overt act that Plaintiff alleges caused him harm is Heckman's alleged search and arrest of Plaintiff on June 1 or 2, 2009. SAC at 5. Plaintiff does not allege that Officer Heckman committed any other overt acts that caused him harm. Any conspiracy claim against Officer Heckman thus accrued on June 1 or 2, 2009, the date of his last overt act in furtherance of the alleged conspiracy. But even tolling Plaintiff's claim until November 3, 2010, his claims against Heckman are untimely, as Plaintiff failed to bring his § 1983 claim within two years of that date.
As to Defendants Ted Yamasaki and John Robertson, Plaintiff does not allege any facts about when these Defendants took actions that allegedly harmed him. Plaintiff asserts that they "did not adequately perform due diligence in regards to the regulation/accountability/records of officers who violated" his rights. SAC at 4. He also asserts that "not one `Oath of Office' document is notarized, and that MICHAEL CARROLL does not have a date on his `Oath of Office' document." FAC ¶ 7. Plaintiff contends that "[b]ecause these clerical errors coincide with Conspiracy allegations, and because that conspiracy is to confound complaint against the officers who violated said documents, damages for TED YAMISAKI and JOHN ROBERTSON pursuant to 42 USC 1988 as applied through 42 USC 1983 & 42 USC 1986; 418 U.S. 323, and Gertz v. Robert Welch, Inc., (1974), shall only be the $10,000,000.00 each." Id. Given these facts, it appears that Plaintiff alleges ongoing acts by these Defendants. See Flowers v. Carville, 310 F.3d 1118, 1126 (9th Cir. 2002) ("When a tort involves continuing wrongful conduct, the statute of limitations doesn't begin to run until that conduct ends." (citation omitted)).
As to Defendants Carroll and Leal, Plaintiff alleges that they "conspired to confound complaint, as evidenced in their correspondence, both to my USPS mail and e-mail correspondence, where MICHAEL CARROLL attempted to `Consider this matter closed' by an inappropriately short amount of time, after willful outright denial on behalf of ANTHONY HECKMAN of ANY wrongdoing[.]" SAC at 4. In his FAC, Plaintiff alleges that after May 27, 2014, he "complained to the NEWARK POLICE DEPARTMENT, where every effort was made to confound any accountability to receive complaint or faithfully administer any form of adequate accountability, a contempt demonstrated in the e-mail correspondence with JAMES LEAL and MICHAEL CARROLL." FAC ¶ 6. Given these facts, it appears that Plaintiff alleges that the last overt acts of these Defendants in furtherance of the alleged conspiracy occurred sometime around or after May 27, 2014.
In sum, as Plaintiff filed his initial Complaint within the two year period after the last alleged overt acts by Defendants Carroll, Leal, Robertson, and Yamasaki, his conspiracy claim against them under § 1983 is potentially timely. Plaintiff's § 1986 claim is also timely as Plaintiff filed his Complaint within one year from the last alleged overt acts of Defendants Carroll, Leal, Robertson, and Yamasaki. However, the statute of limitations bars Plaintiff's unlawful search and seizure claim, as well as Plaintiff's conspiracy claims against Officer Heckman.
Having considered Plaintiff's FAC and SAC, while his conspiracy claims against Defendants Leal, Carroll, Yamasaki, and Robertson may be timely, the Court ultimately finds that Plaintiff has not set forth facts supporting the elements necessary to state a claim under § 1983 or § 1986 against the City Defendants.
Section 1983 "provides a cause of action for the `deprivation of any rights, privileges, or immunities secured by the Constitution and laws' of the United States." Wilder v. Va. Hosp. Ass'n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights conferred elsewhere. See Graham v. Connor, 490 U.S. 386, 393-94 (1989). To state a claim under § 1983, a plaintiff must allege two essential elements: (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988). Where multiple defendants are involved, the pleadings must establish a nexus between each defendant's actions and the alleged deprivation of plaintiff's constitutional rights. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988) (liability may be imposed on individual defendants under § 1983 only if plaintiff can show that defendant proximately caused deprivation of a federally protected right).
Additionally, to prove a civil conspiracy under § 1983, the plaintiff must show that the conspiring parties reached a unity of purpose or common design and understanding, or a meeting of the minds in an unlawful agreement. Gilbrook v. City of Westminster, 177 F.3d 839, 856 (9th Cir. 1999), as amended on denial of reh'g (July 15, 1999). Specifically, "[a] civil conspiracy is a combination of two or more persons who, by some concerted action, intend to accomplish some unlawful objective for the purpose of harming another which results in damage." Id. (quotation omitted). To be liable, each participant in the conspiracy need not know the exact details of the plan, but each participant must at least share the common objective of the conspiracy. Id. A defendant's knowledge of and participation in a conspiracy may be inferred from circumstantial evidence and from evidence of the defendant's actions. Id. at 856-57. That said, conclusory allegations of conspiracy are not enough to support a § 1983 conspiracy claim. Burns v. Cnty. of King, 883 F.2d 819, 821 (9th Cir. 1989) (per curiam). Furthermore, "[c]onspiracy is not itself a constitutional tort under § 1983," and it "does not enlarge the nature of the claims asserted by the plaintiff, as there must always be an underlying constitutional violation." Lacey, 693 F.3d at 935.
In his FAC, Plaintiff does not explain which of his constitutional rights were violated or how each of the City Defendants contributed to those violations, let alone that these Defendants shared some common objective or intent to harm him. While Plaintiff's SAC vaguely asserts a "conspiracy against due process" (SAC at 4), it fails to allege how Plaintiff's due process rights were violated. The procedural guarantees of the Due Process Clause of the Fourteenth Amendment apply only when a constitutionally protected liberty or property interest is at stake. See Johnson v. Rancho Santiago Comm. Coll. Dist., 623 F.3d 1011, 1029 (9th Cir. 2010) ("To succeed on a substantive or procedural due process claim, the plaintiffs must first establish that they were deprived of an interest protected by the Due Process Clause."). Plaintiff has not demonstrated what constitutionally protected interests or property he was deprived of a result of the City Defendants' actions. For instance, Plaintiff has not shown how Defendant Carroll's or Defendant Leal's lack of responsiveness to his complaints deprived him of a constitutionally protected interest. Likewise, he has not shown how Defendant Yamasaki's or Defendant Robertson's "clerical errors" (FAC ¶ 7) violated his due process rights. Finally, Plaintiff has alleged no facts showing that the City Defendants reached a unity of purpose or common design to violate Plaintiff's constitutional rights. Given the allegations as alleged in his FAC, the Court cannot find that Plaintiff has stated a § 1983 claim for conspiracy upon which relief can be granted. And considering the allegations in Plaintiff's SAC, the Court likewise concludes that amendment in the SAC's current form would be futile.
Plaintiff also asserts that Defendants violated § 1986. Section 1986 states in relevant part:
42 U.S.C. § 1986. "Section 1986 imposes liability on every person who knows of an impending violation of section 1985 but neglects or refuses to prevent the violation." Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 626 (9th Cir. 1988). "A claim can be stated under section 1986 only if the complaint contains a valid claim under section 1985." Id. (citing Trerice v. Pedersen, 769 F.2d 1398, 1403 (9th Cir. 1985)); see also Mollnow v. Carlton, 716 F.2d 627, 632 (9th Cir.1983), cert. denied, 465 U.S. 1100 (1984); Sanchez v. City of Santa Ana, 936 F.2d 1027, 1040 (9th Cir. 1990), as amended on denial of reh'g (Feb. 27, 1991), as amended on denial of reh'g (May 24, 1991).
Plaintiff has not alleged a claim under § 1985, and to the extent he intends his more generalized conspiracy claims to establish a § 1985 claim, the allegations in his FAC and SAC are insufficient. See also United Bhd. of Carpenters & Joiners of Am. v. Scott, 463 U.S. 825, 828-29 (1983) (to establish a violation of § 1985(3), a plaintiff must allege a conspiracy motivated by racial or other class-based animus); Bagley v. CMC Real Estate Corp., 923 F.2d 758, 763 (9th Cir. 1991) (to establish a violation of § 1985(2), a plaintiff must prove the existence of a conspiracy "which deter[s] by force, intimidation, or threat a party or witness in federal court" or a conspiracy "which obstructs the due course of justice in any State or Territory with intent to deny equal protection[,]" requiring an allegation of "a class-based, invidiously discriminatory animus." (quotations and citations omitted)). Plaintiff has not alleged facts supporting the required elements of either a § 1985 claim or a § 1986 claim.
As such, Plaintiff has failed to state a § 1986 claim in his FAC, and to permit him leave to amend with the allegations in his proposed SAC would likewise be futile.
Given the foregoing, the Court
Additionally, the Court notes that Plaintiff's FAC and SAC both appear to contain references to various state and federal laws, as well as case citations, including "California HS 11362" and "Gertz v. Robert Welch, Inc. (1974)." As noted above, it is often unclear which allegations are meant to apply to which Defendant(s), and this lack of clarity extends to these case and statutory citations that appear somewhat randomly throughout both of Plaintiff's FAC and SAC. Given the Court's difficulty in understanding the precise claims and allegations asserted by Plaintiff, the Court provides the following guidance.
If Plaintiff files an amended complaint, Plaintiff must comply with the guidelines set forth in Rule 8(a). This rule requires that a complaint for relief include (1) a short and plain statement of the grounds for the court's jurisdiction; (2) a short and plain statement of the claim showing that the pleader is entitled to relief; and (3) a demand for the relief sought. A pleading may not simply allege a wrong has been committed and demand relief; it must state the elements of the claim plainly and succinctly. Plaintiff must allege with at least some degree of particularity the facts in which the Defendant(s) engaged to support the claim. Jones v. Cmty. Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984).
In preparing the amended complaint, Plaintiff may wish to seek assistance from the Legal Help Center, a free service of the Volunteer Legal Services Program, by calling 415-782-8982, or by signing up for an appointment on the 15th Floor of the Federal Courthouse in San Francisco, 450 Golden Gate Avenue, San Francisco, California. At the Legal Help Center, Plaintiff will be able to speak with an attorney who may be able to provide basic legal help but not representation. More information is available at
Consistent with the instructions in this Order, Plaintiff shall file any amended complaint by June 23, 2015. Failure to file an amended complaint by this deadline shall result in the dismissal of this case with prejudice. The Clerk is directed to close the file in this case if an amended complaint is not filed by.
