Paul Blumberg v. Brian Hewitt et al

Filing 85

ORDER DISMISSING REMANDED PROCEDURAL DUE PROCESS AND CONSPIRACY CLAIMS by Judge Manuel L. Real,IT IS HEREBY ORDERED that Plaintiffs remaining Section 1983 claims are DISMISSED. Case Terminated. Made JS-6. (pj)

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UNITED STATES DISTRICT COURT

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CENTRAL DISTRICT OF CALIFORNIA

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PAUL BLUMBERG,

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Plaintiff,
v.
BRIAN HEWITT, SAM MARTIN, BRAD
FOSS, CITY OF LOS ANGELES, COUNTY
OF LOS ANGELES, AND DOE
DEFENDANTS 1 THROUGH 10,
INCLUSIVE,
Defendants.

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CASE NO. CV 10-5072-R
ORDER DISMISSING REMANDED
PROCEDURAL DUE PROCESS AND
CONSPIRACY CLAIMS

The Ninth Circuit remanded the case for this Court to “consider if and to what extent

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Blumberg’s plea to the crime of attempted murder affects his § 1983 claims.” (Dkt. No.67 at 2).

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The Ninth Circuit pointed this Court to consider the Plaintiff’s Section 1983 “procedural due

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process and conspiracy claims are premised at least in part on ‘Brady violations’ and ‘fabrication

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of evidence’ in Blumberg’s 1998 conviction, which has been reversed, and his later guilty plea

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may have been ‘completely insulated from’ defendants’ alleged violations” under Jackson v.

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Barnes, 749 F.3d 755, 759-60 (9th Cir. 2014). (Dkt. No.67 at 2). This Court ordered the Parties

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to file position papers (Dkt. No. 70) and the Parties did (See Dkt. Nos. 74, 75, 77, 78).

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It is undisputed that in 1998, Plaintiff was tried and convicted for the murder of Ramon

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Zuniga, that such conviction was later overturned, and that he was subsequently re-proseucted in

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2010 for the same crime. (See Dkt. No. 76 at 2). Instead of going to trial a second time, Plaintiff

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pled guilty to the attempted willful, deliberate, and premeditated murder of Ramon Zuniga. (See

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Dkt. No. 75 at Ex. B). The criminal court explicitly found that there was a factual basis for the

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guilty plea. (Id.). This outstanding conviction has not been overturned.

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In Heck v. Humphrey, 512 U.S. 477, (1994), the Supreme Court held “that in order to

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recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm

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caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983

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plaintiff must prove that the conviction or sentence has been [overturned].” Id. at 486–87. The

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court further stated that “the district court must consider whether a judgment in favor of the

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plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the

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complaint must be dismissed.” Id. at 487. However, “if the district court determines that the

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plaintiff's action, even if successful, will not demonstrate the invalidity of any outstanding

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criminal judgment . . . the action should be allowed to proceed.” Id. (emphasis in original); Smith

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v. City of Hemet, 394 F.3d 689, 699 (9th Cir. 2005) (a § 1983 claim will be barred only where “it

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is clear from the record that its successful prosecution would necessarily imply or demonstrate

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that the ... conviction was invalid.”) (emphasis in original). Thus, “[i]n evaluating whether claims

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are barred by Heck, an important touchstone is whether a § 1983 plaintiff could prevail only by

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negating an element of the offense of which he has been convicted.” Cunningham v. Gates, 312

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F.3d 1148, 1154 (2002) (internal quotations and citation omitted).

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In Brady v. Maryland, 373 U.S. 83, 87 (1963), the Supreme Court held that “the

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suppression by the prosecution of evidence favorable to an accused upon request violates due

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process where the evidence is material either to guilt or to punishment, irrespective of the good

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faith or bad faith of the prosecution.” Id. The government has a duty to disclose Brady material

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even if the defense fails to ask for it. United States v. Agurs, 427 U.S. 97, 107 (1976). The duty
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under Brady encompasses impeachment evidence as well as exculpatory evidence. United States

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v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). The government's promise

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of a benefit to a witness must be disclosed under Brady. Giglio v. United States, 405 U.S. 150,

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154 (1972).

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In the criminal context, “[t]here are three components of a true Brady violation: [t]he

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evidence at issue must be favorable to the accused, either because it is exculpatory or because it is

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impeaching; that evidence must have been suppressed by the State, either willfully or

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inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-82, 119

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S.Ct. 1936, 144 L.Ed.2d 286 (1999). Evidence is material “if there is a reasonable probability

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that, had the evidence been disclosed to the defense, the result of the proceeding would have been

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different.” Id. at 682. The evidence need not be sufficient affirmatively to prove the defendant

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innocent; it need only be favorable and material. Gantt v. Roe, 389 F.3d 908, 912 (9th Cir. 2004).

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Materiality is measured in terms of the collective effect of the suppressed material, not item by

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item. Kyles v. Whitley, 514 U.S. 419, 436 (1995).

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If the omitted evidence creates a reasonable doubt that did not otherwise exist,

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constitutional error has been committed. The omission must be evaluated in the context of the

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entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is

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considered, there is no justification for a new trial. If the verdict is already of questionable

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validity, additional evidence of relatively minor importance might be sufficient to create

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reasonable doubt. Agurs, 427 U.S. at 112-13.

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The obligation to disclose under Brady “is the obligation of the government, not just the

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obligation of the prosecutor.” United States v. Blanco, 392 F.3d 382, 393 (9th Cir. 2004). The

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prosecution has a duty to learn of any exculpatory evidence known to others acting on the

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government's behalf. Kyles v. Whitley, 514 U.S. 419, 437-38 (1995). A prosecutor's duty under

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Brady necessarily requires the cooperation of other government agents who might possess Brady

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material. Blanco, 392 F.3d at 388. The defense is entitled to exculpatory evidence even if the

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prosecutor does not have it, where an investigating agency does. Id. at 393-94. In the criminal

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context, there is no intent requirement to establish a Brady claim; whether non-disclosure was
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negligent or by design, it is the responsibility of the prosecutor. Brady, 373 U.S. at 87.
In order to state a cause of action for violation of procedural due process, a plaintiff must

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plead two elements. First, a plaintiff must establish that a liberty or property interest exists that

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would entitle them to due process protections. Second, having established a constitutionally

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protected interest, a plaintiff must allege that they were denied due process in violation of the

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Fourteenth Amendment. Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982); Board of

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Regents v. Roth, 408 U.S. 564, 569 (1972) (“The requirements of procedural due process apply

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only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of

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liberty and property.”). If a liberty or property interest is at stake, the court then applies a three

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part balancing test set forth in Mathews v. Eldridge, 424 U.S. 319 (1976). Mathews, 424 U.S. at

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333 (“The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful

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time and in a meaningful manner.’”) (citations omitted). “[D]ue process is flexible and calls for

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such procedural protections as the particular situation demands.” Id. at 333 (internal quotations

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and citation omitted). In the context of an administrative hearing, the Supreme Court in Mathews,

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explained that:

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The judicial model of an evidentiary hearing is neither a required, nor even the
most effective, method of decisionmaking in all circumstances. The essence of due
process is the requirement that a person in jeopardy of serious loss (be given)
notice of the case against him and opportunity to meet it. All that is necessary is
that the procedures be tailored, in light of the decision to be made, to the capacities
and circumstances of those who are to be heard, to insure that they are given a
meaningful opportunity to present their case.

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Id. at 348–49 (citations and internal quotation marks omitted).
Plaintiff’s procedural due process and conspiracy claims which are premised, at least in

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part, on “Brady violations” and “fabrication of evidence” necessarily require demonstration of

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Plaintiff’s alleged innocence and thus are barred under Heck.

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To the extent such claims are based on Brady, they must fail because no prejudice could

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possibly flow from the allegedly undisclosed exculpatory information. Plaintiff has pled guilty to

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a crime and thus the elements thereof. The existence of material exculpatory information as to

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such a crime is illogical because the outcome of the proceeding could not be changed. The
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allegedly exculpatory information was known to Plaintiff at the time of the 1998 trial. The

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information was nonetheless not withheld or “suppressed” for Brady purposes. See Cunningham

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v. Wong, 704 F.3d 1143, 1154 (9th Cir. 2013) (where party “possessed the ‘salient facts’ that

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would have allowed them” access to records to present to the court, no Brady “suppression” of

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evidence).

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Any of Plaintiff’s procedural due process claims based on the fabrication of evidence also

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necessarily require his alleged innocence. Plaintiff’s guilty plea admits to the requisite possession

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of the firearm and intent. If Plaintiff successfully argued a procedural due process claim premised

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on the fabrication of evidence establishing the elements of the offense to which he pled guilty—

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such as if Plaintiff was successful in arguing that a weapon was planted on him—it would

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necessarily undermine the validity of his guilty plea and conviction regarding that offense. This is

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impermissible under Heck.

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The narrow exception in Jackson v. Barnes, 749 F.3d 755, 759-60 (9th Cir. 2014), does not

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apply here. No secondary proceeding occurred because Plaintiff pled guilty before a second trial

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commenced. It is impossible that there existed a secondary proceeding that was “completely

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insulated from” Defendants' alleged violations.

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IT IS HEREBY ORDERED that Plaintiff’s remaining Section 1983 claims are

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DISMISSED.

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Dated: June 23, 2015

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___________________________________
MANUEL L. REAL
UNITED STATES DISTRICT JUDGE

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