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Rodriguez v. Kwok

United States District Court, N.D. California

May 20, 2014

SHERMAN KWOK, Defendant.


SUSAN ILLSTON, District Judge.

A motion by defendant Sherman Kwok to dismiss plaintiff Pedro Rodriguez's second amended complaint ("SAC") is scheduled for a hearing on May 23, 2014. Docket No. 40. Pursuant to Civil Local Rule 7-1(b), the Court determines that this matter is appropriate for resolution without oral argument and VACATES the hearing. For the reasons set forth below, the Court GRANTS defendant's motion to dismiss.


On March 22, 2011, plaintiff was taken into custody and charged with several felonies in a criminal proceeding. Docket No. 21, FAC ¶ 6. Defendant Kwok is an employee of the Federal Bureau of Investigation ("FBI"), and works in the FBI's Regional Computer Forensics Lab ("RCFL"). Id. ¶ 4; Docket No. 2. Kwok was designated as the forensic examiner in plaintiff's criminal proceedings. Docket No. 21, FAC ¶ 7. During plaintiff's criminal proceedings, Kwok gave testimony about the contents of plaintiff's electronic devices and computer. Id. ¶¶ 13-20. Plaintiff alleges that during his criminal proceedings, Kwok refused to provide him with exculpatory evidence. Id. ¶¶ 14, 18, 19, 21, 22, 25, 28; Docket No. 39, SAC ¶¶ 8-11. Plaintiff also alleges that Kwok gave false testimony during plaintiff's criminal trial. Docket No. 39, SAC ¶¶ 8, 10.

On September 24, 2013, plaintiff filed a complaint against defendant Kwok in the Superior Court of San Mateo County alleging causes of action for intentional tort, violations of the California Penal Code ("CPC"), violations of the California Constitution, and violations of the United States Constitution. Docket No. 1, Compl. On October 25, 2013, defendant removed the action to this Court pursuant to 28 U.S.C. §§ 1441(a), 1441(c), and 1442(a)(1). Docket No. 1, Notice of Removal 1-3.

On November 1, 2013, defendant filed a motion to dismiss the complaint. Docket No. 8. On December 13, 2013, plaintiff filed a first amended complaint, mooting defendant's prior motion to dismiss. See FAC; Docket No. 24. On January 10, 2014, defendant filed a motion to dismiss the first amended complaint. Docket No. 30. On March 3, 2014, the Court granted defendant's motion to dismiss and granted plaintiff leave to file a second amended complaint to attempt to allege a Bivens claim against defendant. Docket No. 37.

On March 26, 2014, plaintiff filed a second amended complaint alleging claims against defendant Kwok under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), for violations of his due process rights under the Fifth and Fourteenth Amendments and his rights under the Sixth Amendment. Docket No. 39, SAC. By the present motion, defendant moves to dismiss all of the claims in the SAC for failure to state a claim. Docket No. 40, Def's Mot.


Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must 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). This "facial plausibility" standard requires the plaintiff to allege facts that add up to "more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). While courts do not require "heightened fact pleading of specifics, " a plaintiff must allege facts sufficient to "raise a right to relief above the speculative level." Twombly, 550 U.S. at 555, 570.

In reviewing a Rule 12(b)(6) motion, a district court must accept as true all facts alleged in the complaint, and draw all reasonable inferences in favor of the plaintiff. See al -Kidd v. Ashcroft, 580 F.3d 949, 956 (9th Cir. 2009). Pro se pleadings must be liberally construed. See Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990). However, the court is not required to accept as true "allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). Moreover, "the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Iqbal, 556 U.S. at 678. If the court dismisses a complaint, it must decide whether to grant leave to amend. The Ninth Circuit has "repeatedly held that a district 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, 1130 (9th Cir. 2000) (citations and internal quotations marks omitted).


Defendant argues that all of the claims in the second amended complaint are barred by the Supreme Court's decision in Heck v. Humphrey, 512 U.S. 477 (1994). Def.'s Mot. at 3-4. In response, plaintiff argues that his claims are not barred by Heck because he is no longer in custody. Docket No. 43, Pl.'s Opp'n at 2.

"Under Heck v. Humphrey , a state prisoner 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) (footnote omitted). The Heck rule applies to claims for equitable relief in addition to claims for damages. See Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005) ("[A] state prisoner's § 1983 action is barred (absent prior invalidation)-no matter the relief sought (damages or equitable relief), no matter the target of the prisoner's suit (state conduct leading to conviction or internal prison proceedings)-if success in that action would necessarily demonstrate the invalidity of confinement or its duration."). Further, the holding in Heck applies equally to Bivens actions. See Martin v. Sias, 88 F.3d 774, 775 (9th Cir. 1996).

A claim alleging a constitutional violation under Brady v. Maryland falls within the Heck doctrine. See Skinner v. Switzer, 131 S.Ct. 1289, 1300 (2011) ("Brady claims have ranked within the traditional core of habeas corpus and outside the province of § 1983."); Poventud v. City of New York, 2014 U.S.App. LEXIS 864, at *29 (2d Cir. Jan. 16, 2014) (en banc) ("This Court has emphatically and properly confirmed that Brady -based § 1983 claims necessarily imply the invalidity of the challenged conviction in the trial (or plea) in which the Brady violation occurred."); see, e.g., Ciria v. Rubino, No. C 07-4770 MMC, 2008 U.S. Dist. LEXIS 70229, at *17-18 (N.D. Cal. Sept. 17, 2008). In addition, a claim alleging that a material witness in a criminal trial committed perjury falls within the Heck doctrine. See, e.g., Rodriguez ...

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