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July 28, 1999


The opinion of the court was delivered by: Timlin, District Judge.


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.



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).

B. Heck v. Humphrey

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.

The Supreme Court explained this holding in several ways. Primarily, the Court relied, by way of analogy, on the common law tort action of malicious prosecution. The requirement that a section 1983 plaintiff demonstrate the reversal, expungement or other invalidation of his or her underlying conviction was considered analogous to the common law requirement that a plaintiff in a malicious prosecution action prove that the underlying criminal action had terminated in his or her favor. The common law requirement, in turn, was valuable because it "`avoids parallel litigation over the issues of probable cause and guilt . . . and it precludes the possibility of the claimant [sic] succeeding in the tort action after having been convicted in the underlying criminal prosecution, in contravention of a strong judicial policy against ...

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