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March 23, 1998

PAUL I. ZUPAN, Plaintiff,

The opinion of the court was delivered by: WILKEN


 Defendants move for summary judgment. Plaintiff opposes. The matter was heard on December 5, 1997. Having considered all of the papers filed by the parties and oral argument on the motion, and for the reasons stated below, the Court grants the motion in part and denies it in part.


 The Court described the facts of this case in detail in its Order of December 16, 1996, granting in part and denying in part Defendants' motion to dismiss. Order of December 16, 1996 at 1 through 5. Only the facts relevant to today's order will be included here. The claims that remain in the case are as follows: (1) Mr. Zupan's equal protection claim against Defendants Charles Brown, Michael Robinson, Ronald Chun, Dennis Yen, Eddie Ylst and Marisela Montes; (2) his unlawful arrest claim against Defendants Brown and Yen; and (3) his unlawful search claim against Defendants Brown and Robinson.

 Defendants move for summary judgment, arguing that Mr. Zupan's claims regarding his arrest and search are not cognizable pursuant to Heck v. Humphrey, 512 U.S. 477, 129 L. Ed. 2d 383, 114 S. Ct. 2364 (1994), because, it true, they would necessarily imply the invalidity of the revocation of his parole. Defendants also argue that Mr. Zupan's arrest and search were lawful because they were each supported by a reasonable belief that Mr. Zupan had violated his parole. Defendants argue further that Mr. Zupan's equal protection claim fails because he has not shown that he is a member of a protected class and has received disparate treatment. Finally, Defendants assert that they are entitled to qualified immunity as to Mr. Zupan's claims because their conduct did not violate clearly established law.

 Mr. Zupan argues that recent Supreme Court authority indicates that Heck does not bar claims by a plaintiff who is unable to petition for habeas corpus relief because he is no longer in custody. He also argues that triable issues of fact exist concerning whether the search and arrest were supported by a reasonable belief that he had violated parole. He argues further that his equal protection claim is viable because Defendants punished him for his inability to pay restitution. In addition, Mr. Zupan argues that Defendants are not shielded by qualified immunity.


 I. Legal Standard

 Summary judgment is properly granted when no genuine issues of material fact remain, or when, viewing the evidence most favorably to the non-moving party, the movant is clearly entitled to prevail as a matter of law. Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Eisenberg v. Insurance Co. of North America, 815 F.2d 1285, 1288-89 (9th Cir. 1987).

 The moving party bears the burden of showing that there is no material factual dispute. The Court must regard as true the opposing party's evidence, if supported by affidavits or other evidentiary material. Celotex, 477 U.S. at 324; Eisenberg, 815 F.2d at 1289. The Court must draw all reasonable inferences in favor of the party against whom summary judgment is sought. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).

 II. Claims that arose before the October 27, 1993 arrest

 Defendants assert that a number of Mr. Zupan's allegations relate to conduct that occurred before his October 23, 1993 arrest. This includes his allegations that, prior to his arrest, he was harassed by parole officials in San Francisco, that he was denied a transfer of parole to Washington, that he was denied permission to travel there, and that Defendant Ylst failed to train and supervise parole officials. Defendants assert that the statute of limitations bars any claims for conduct arising from these allegations because the tolling provision under California law that applies to prisoners does not apply to claims that arise when the prisoner is not in custody.

 Mr. Zupan asserts that he does not seek damages for any events that occurred before his arrest on October 27, 1993 but raises this conduct only because it provides the background of the case and sheds light on Defendants' motivations. Mr. Zupan appears to concede that the one-year statute of limitations bars him from basing a claim on any of the conduct that Defendants assert occurred prior to his arrest on October 27, 1993. Because Mr. Zupan has not raised any argument or presented facts to the contrary, the Court grants Defendants summary judgment as to their liability for any conduct that occurred before October 27, 1993.

 III. The Arrest and Search Claims

 A. Heck v. Humphrey

 Defendants argue that Heck v. Humphrey, 512 U.S. 477, 129 L. Ed. 2d 383, 114 S. Ct. 2364 (1994), bars Mr. Zupan from bringing claims based on his parole violation arrest and search. In Heck, the Supreme Court held that, in order to recover damages for an allegedly unconstitutional conviction or imprisonment, or for other injuries caused by actions whose unlawfulness would render the conviction or imprisonment invalid,

a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254. A claim for damages bearing that relationship to a conviction or sentence that has not been so invalidated is not cognizable under § 1983.

 Id. at pp. 486-487 (emphasis in original) (footnote omitted). The Heck Court held further that when a State prisoner seeks damages in a § 1983 suit, "the district court must consider whether a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated." Id. at p. 487. If the district court determines, however, that the plaintiff's action would not necessarily demonstrate the invalidity of the criminal judgment against the plaintiff, it should allow the § 1983 action to proceed. Id.

 The Fifth Circuit in McGrew v. Texas Board of Pardons and Paroles, 47 F.3d 158 (5th Cir. 1995), held that an action attacking the validity of parole revocation proceedings "calls into question the fact and duration of confinement," and must therefore satisfy the requirements of Heck before proceeding. Id. at 161; see Butterfield v. Bail, 120 F.3d 1023 (9th Cir. 1997) (applying Heck to procedure in which parole was denied). Recently, the Supreme Court assumed, without explicitly deciding, that Heck applied to parole revocations. See Spencer v. Kemna, 140 L. Ed. 2d 43, 118 S. Ct. 978, 1998 WL 85333, *9, 98 Cal. Daily Op. Service 1477, 1480 (1998). Based on these authorities, and knowing of none to the contrary, the Court finds that the requirements of Heck apply with equal force to parole revocations as to convictions.

 Defendants argue that Heck bars Mr. Zupan's damages claims based on the search and arrest that led to his reincarnation as a parole violator. Defendants assert that a judgment in Mr. Zupan's favor would necessarily imply the invalidity of the revocation of his parole and that this revocation has never been declared invalid or called into question by the issuance of a writ of habeas corpus.

 Mr. Zupan concedes that he did not file a habeas corpus petition challenging the parole revocation proceedings of December 3, 1993. He argues, however, that in Spencer, the Supreme Court recently indicated that Heck does not bar a § 1983 claim based on unconstitutional confinement if the plaintiff is, like him, unable to petition for habeas corpus relief from confinement.

 1. Heck after Spencer v. Kemna

 In Spencer, Randy Spencer filed a habeas corpus petition to invalidate an order revoking his parole. After the petition was filed but before the district court ruled upon it, Mr. Spencer completed the term of imprisonment underlying his parole revocation. The Supreme Court, therefore, addressed the question of whether the expiration of his sentence mooted his petition. Specifically, the Court analyzed whether Mr. Spencer's petition was moot "because it no longer presented a case or controversy under Article III, § 2 of the Constitution." Spencer, 98 Cal. Daily Op. Service 1477 at 1478.

 The Court pointed out that an incarcerated convict's challenge to the validity of his or her conviction always satisfies the case-or-controversy requirement because the incarceration constitutes a concrete injury that is redressable by the invalidation of the conviction. Id. Mr. Spencer did not challenge his convictions for theft and burglary, he argued only that the termination of his parole status was wrongful. Id. The Court stated, "The reincarceration that he incurred as a result of that action is now over, and cannot be undone. Subsistence of the suit requires, therefore, that continuing 'collateral consequences' of the parole revocation be either proven or presumed." Id. The Court concluded that collateral consequences could not be presumed and that Mr. Spencer failed to prove any collateral consequences of his parole revocation. Id. at 1479-80.

 Mr. Spencer raised an additional argument why he should be allowed to pursue habeas corpus relief. He argued that, unless he were allowed to establish the invalidity of his parole revocation through a habeas petition, Heck would bar him from pursuing a § 1983 damages claim based on the revocation. Justice Scalia rejected this argument: "This is a great non sequitur, unless one believes (as we do not) that a § 1983 action for damages must always and everywhere be available." Id. at 1480.

 Although Justice Scalia wrote for the Court and for the majority in most of his Spencer opinion, the concurring opinions of Justices Souter and Ginsburg and the dissenting opinion of Justice Stevens indicate that Justice Scalia's position on Heck was not joined by the majority. Instead, four Justices indicated their agreement with Justice Souter's position, first outlined in his concurring opinion in Heck and revisited in his Spencer concurrence.

 In Heck, Justice Souter concurred in the judgment, but took issue with the majority opinion to the extent that it could be read to prevent certain individuals who are not in custody under § 2254 from asserting § 1983 damages claim. Heck, 512 U.S. at 502-503. It would be "an untoward result," according to Justice Souter, if people who were only fined, or who have completed short terms of imprisonment, probation or parole, or who, through no fault of their own, discover a constitutional violation after the expiration of their sentences, were required to show the prior invalidation of their sentences or convictions in order to bring a § 1983 damages claim. Id. at 500. Such individuals are not in custody and therefore cannot invoke federal habeas jurisdiction. Id. Justice Souter asserted, therefore, that Heck should be read to require only § 1983 plaintiffs who are in custody to demonstrate the prior invalidation of their sentences or convictions. Id. People who are not in custody and, ...

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