The opinion of the court was delivered by: Timlin, District Judge.
ORDER GRANTING DEFENDANTS COUNTY OF SAN BERNARDINO AND VICTOR
MORENO'S MOTION TO DISMISS.
In Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129
L.Ed.2d 383 (1994) (Heck), the Supreme Court held that a
plaintiff seeking damages pursuant to 42 U.S.C. § 1983 (section
1983), based on factual allegations which would, if proven,
render that plaintiff's previous criminal conviction or resulting
sentence invalid, must demonstrate that the previous conviction
or sentence has been reversed or invalidated by an authorized
state or federal court or tribunal, or expunged by executive
branch action to state a valid cause of action. Id. at 486-87,
114 S.Ct. at 2372. The instant motion to dismiss under Rule
12(b)(6) of the Federal Rules of Civil Procedure (Rule 12(b)(6))
requires the Court to decide whether this rule applies where the
conviction or sentence in the prior criminal action was entered
based on the plaintiff's plea of nolo contendere in that action.
BACKGROUND AND FACTUAL ALLEGATIONS*fn1
On July 19, 1997, plaintiff Jesus Nuño (plaintiff) was
detained and arrested by San Bernardino County deputy sheriff
Victor Moreno for, among other reasons, resisting arrest,
carrying a concealed weapon and possession of a loaded firearm.
On February 18, 1998, plaintiff entered a plea of nolo contendere
to misdemeanor violations of California Penal Code sections 148
(obstructing a peace officer) and 12025(a) (carrying a concealed
firearm). A third charge under California Penal Code
section 12031(a) (carrying a loaded firearm) was dismissed by the
state court on the prosecutor's motion. The plea was accepted by
the state court and plaintiff was placed on probation, and as
conditions thereof was required to make a restitution payment and
serve 30 days in custody. There is no allegation that plaintiff
ever appealed any aspect of this conviction or sentence, nor is
it alleged that he ever petitioned for a state or federal writ of
habeas corpus, or that the conviction and sentence were expunged
or otherwise declared invalid.
On August 20, 1998, plaintiff filed a first amended complaint
(FAC) in this action against defendants County of San Bernardino
(the County), the San Bernardino County Sheriff, the San
Bernardino County Sheriff's Department, San Bernardino County
Sheriff V. Moreno, # M3638, sued in both his individual and
official capacities (Moreno), and does 1 through 10.*fn2 The FAC
alleges three causes of action.
The first cause of action alleges that on July 19, 1997, Moreno
and certain doe defendants detained and arrested plaintiff
without "reasonable or probable cause," "falsely accused
[plaintiff] of committing crime," and "assaulted and battered
[plaintiff] without legal cause or justification." The FAC
further alleges that unspecified "defendants" — presumably Moreno
and the does — prepared false reports "and acted to ensure that
the San Bernardino County District Attorney [would] file a
criminal complaint against and  prosecute plaintiff in order to
deny plaintiff access to the civil courts concerning this matter.
Plaintiff alleges that this conduct deprived him of various
constitutional rights and seeks damages pursuant to 42 U.S.C. § 1981,
1983, 1985 and 1986." Plaintiff further seeks reasonable
attorney's fees pursuant to 42 U.S.C. § 1988.
The second cause of action alleges a Monell v. New York City
Dep't of Soc. Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d
611 (1978), claim against the County for its custom, practice and
policy of inadequately hiring, training, supervising, assigning
and disciplining of Moreno. The cause of action further alleges
that the County maintains an unconstitutional policy of condoning
and covering up misconduct by the County's deputy sheriffs. The
third cause of action alleges supplemental state law tort claims
for battery and false arrest.
The County and Moreno (collectively defendants) now move to
dismiss the entire FAC, relying exclusively on the Supreme
Court's decision in Heck v. Humphrey.*fn3
A. Standard for Rule 12(b)(6) Motion
A motion to dismiss pursuant to Rule 12(b)(6) tests the legal
sufficiency of the
complaint. Rutman Wine Co. v. E. & J. Gallo Winery,
829 F.2d 729, 738 (9th Cir. 1987). Dismissal of an action pursuant to Rule
12(b)(6) is appropriate only where it "appears beyond doubt that
the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief." Levine v. Diamanthuset,
Inc., 950 F.2d 1478, 1482 (9th Cir. 1991) (quoting Conley v.
Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)).
All material allegations in the complaint will be taken as true
and construed in the light most favorable to the plaintiff. NL
Industries. Inc. v. Kaplan, 792 F.2d 896, 898 (9th Cir. 1986). A
cause of action will be dismissed only where there is either "a
lack of a cognizable legal theory" or "the absence of sufficient
facts alleged under a cognizable theory." Balistreri v. Pacifica
Police Dept., 901 F.2d 696, 699 (9th Cir. 1988).
While Indiana state prisoner Roy Heck's direct appeal of his
state law voluntary manslaughter conviction was pending in the
Indiana courts, and while he remained incarcerated pursuant to
that conviction, he filed a section 1983 action against the state
officials who had investigated and prosecuted his case. Heck
alleged that these officials had engaged in an unlawful
investigation, knowingly destroyed exculpatory evidence, and
caused an illegal voice identification procedure to be used
against him at his trial. Heck sought money damages, but did not
seek release from custody or other injunctive relief.
The Supreme Court observed that Heck's complaint presented
facts arguably sufficient to entitle Heck to some form of relief
under one of two federal statutes designed to "provide access to
a federal forum for claims of unconstitutional treatment at the
hands of state officials": section 1983, or the habeas corpus
statute, 28 U.S.C. § 2254 (the habeas statute). Heck, 512 U.S.
at 480, 114 S.Ct. at 2369. Under the habeas statute, Heck was
potentially entitled, upon exhausting his state remedies, to seek
release from his allegedly unlawful state custody. Under section
1983, Heck was potentially entitled to seek money damages (and
perhaps injunctive relief to remedy the state officials'
deprivation of his federally protected rights.)
Faced with this potential overlap, and particularly in light of
the fact that section 1983 contains no exhaustion of state
remedies requirement while the habeas statutes does, the Supreme
Court held that Heck's section 1983 damages action was not
cognizable. "[I]n order to recover damages for allegedly
unconstitutional conviction or imprisonment, or for other harm
caused by actions whose unlawfulness would render a conviction or
sentence invalid, a § 1983 plaintiff must prove that the
conviction or sentence has been reversed on direct appeal,
expunged by executive order, declared invalid by [an authorized
state tribunal], or called into question by a federal court's
issuance of a writ of habeas corpus." Heck, 512 U.S. at 486-87,
114 S.Ct. at 2372 (footnote and citation omitted). In other
words, Heck was required to prosecute a state criminal appeal,
and, if unsuccessful therein, to challenge his conviction through
the state and federal habeas process specifically created for
such challenges, or obtain an expungement of the conviction by
executive order. Only if he succeeded in invalidating his
conviction through these processes could Heck bring a section
1983 action to obtain monetary compensation for the damage caused
him by the state officials' allegedly unconstitutional conduct
leading to that conviction.