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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1 JS-6 2 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 11 CENTRAL DISTRICT OF CALIFORNIA 12 13 PAUL BLUMBERG, 14 15 16 17 18 19 20 21 22 23 Plaintiff, v. BRIAN HEWITT, SAM MARTIN, BRAD FOSS, CITY OF LOS ANGELES, COUNTY OF LOS ANGELES, AND DOE DEFENDANTS 1 THROUGH 10, INCLUSIVE, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) 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 24 Blumberg’s plea to the crime of attempted murder affects his § 1983 claims.” (Dkt. No.67 at 2). 25 The Ninth Circuit pointed this Court to consider the Plaintiff’s Section 1983 “procedural due 26 process and conspiracy claims are premised at least in part on ‘Brady violations’ and ‘fabrication 27 of evidence’ in Blumberg’s 1998 conviction, which has been reversed, and his later guilty plea 28 may have been ‘completely insulated from’ defendants’ alleged violations” under Jackson v. 1 Barnes, 749 F.3d 755, 759-60 (9th Cir. 2014). (Dkt. No.67 at 2). This Court ordered the Parties 2 to file position papers (Dkt. No. 70) and the Parties did (See Dkt. Nos. 74, 75, 77, 78). 3 It is undisputed that in 1998, Plaintiff was tried and convicted for the murder of Ramon 4 Zuniga, that such conviction was later overturned, and that he was subsequently re-proseucted in 5 2010 for the same crime. (See Dkt. No. 76 at 2). Instead of going to trial a second time, Plaintiff 6 pled guilty to the attempted willful, deliberate, and premeditated murder of Ramon Zuniga. (See 7 Dkt. No. 75 at Ex. B). The criminal court explicitly found that there was a factual basis for the 8 guilty plea. (Id.). This outstanding conviction has not been overturned. 9 In Heck v. Humphrey, 512 U.S. 477, (1994), the Supreme Court held “that in order to 10 recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm 11 caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 12 plaintiff must prove that the conviction or sentence has been [overturned].” Id. at 486–87. The 13 court further stated that “the district court must consider whether a judgment in favor of the 14 plaintiff would necessarily imply the invalidity of his conviction or sentence; if it would, the 15 complaint must be dismissed.” Id. at 487. However, “if the district court determines that the 16 plaintiff's action, even if successful, will not demonstrate the invalidity of any outstanding 17 criminal judgment . . . the action should be allowed to proceed.” Id. (emphasis in original); Smith 18 v. City of Hemet, 394 F.3d 689, 699 (9th Cir. 2005) (a § 1983 claim will be barred only where “it 19 is clear from the record that its successful prosecution would necessarily imply or demonstrate 20 that the ... conviction was invalid.”) (emphasis in original). Thus, “[i]n evaluating whether claims 21 are barred by Heck, an important touchstone is whether a § 1983 plaintiff could prevail only by 22 negating an element of the offense of which he has been convicted.” Cunningham v. Gates, 312 23 F.3d 1148, 1154 (2002) (internal quotations and citation omitted). 24 In Brady v. Maryland, 373 U.S. 83, 87 (1963), the Supreme Court held that “the 25 suppression by the prosecution of evidence favorable to an accused upon request violates due 26 process where the evidence is material either to guilt or to punishment, irrespective of the good 27 faith or bad faith of the prosecution.” Id. The government has a duty to disclose Brady material 28 even if the defense fails to ask for it. United States v. Agurs, 427 U.S. 97, 107 (1976). The duty 2 1 under Brady encompasses impeachment evidence as well as exculpatory evidence. United States 2 v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). The government's promise 3 of a benefit to a witness must be disclosed under Brady. Giglio v. United States, 405 U.S. 150, 4 154 (1972). 5 In the criminal context, “[t]here are three components of a true Brady violation: [t]he 6 evidence at issue must be favorable to the accused, either because it is exculpatory or because it is 7 impeaching; that evidence must have been suppressed by the State, either willfully or 8 inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-82, 119 9 S.Ct. 1936, 144 L.Ed.2d 286 (1999). Evidence is material “if there is a reasonable probability 10 that, had the evidence been disclosed to the defense, the result of the proceeding would have been 11 different.” Id. at 682. The evidence need not be sufficient affirmatively to prove the defendant 12 innocent; it need only be favorable and material. Gantt v. Roe, 389 F.3d 908, 912 (9th Cir. 2004). 13 Materiality is measured in terms of the collective effect of the suppressed material, not item by 14 item. Kyles v. Whitley, 514 U.S. 419, 436 (1995). 15 If the omitted evidence creates a reasonable doubt that did not otherwise exist, 16 constitutional error has been committed. The omission must be evaluated in the context of the 17 entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is 18 considered, there is no justification for a new trial. If the verdict is already of questionable 19 validity, additional evidence of relatively minor importance might be sufficient to create 20 reasonable doubt. Agurs, 427 U.S. at 112-13. 21 The obligation to disclose under Brady “is the obligation of the government, not just the 22 obligation of the prosecutor.” United States v. Blanco, 392 F.3d 382, 393 (9th Cir. 2004). The 23 prosecution has a duty to learn of any exculpatory evidence known to others acting on the 24 government's behalf. Kyles v. Whitley, 514 U.S. 419, 437-38 (1995). A prosecutor's duty under 25 Brady necessarily requires the cooperation of other government agents who might possess Brady 26 material. Blanco, 392 F.3d at 388. The defense is entitled to exculpatory evidence even if the 27 prosecutor does not have it, where an investigating agency does. Id. at 393-94. In the criminal 28 context, there is no intent requirement to establish a Brady claim; whether non-disclosure was 3 1 2 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 3 plead two elements. First, a plaintiff must establish that a liberty or property interest exists that 4 would entitle them to due process protections. Second, having established a constitutionally 5 protected interest, a plaintiff must allege that they were denied due process in violation of the 6 Fourteenth Amendment. Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982); Board of 7 Regents v. Roth, 408 U.S. 564, 569 (1972) (“The requirements of procedural due process apply 8 only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of 9 liberty and property.”). If a liberty or property interest is at stake, the court then applies a three 10 part balancing test set forth in Mathews v. Eldridge, 424 U.S. 319 (1976). Mathews, 424 U.S. at 11 333 (“The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful 12 time and in a meaningful manner.’”) (citations omitted). “[D]ue process is flexible and calls for 13 such procedural protections as the particular situation demands.” Id. at 333 (internal quotations 14 and citation omitted). In the context of an administrative hearing, the Supreme Court in Mathews, 15 explained that: 16 17 18 19 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. 20 21 22 Id. at 348–49 (citations and internal quotation marks omitted). Plaintiff’s procedural due process and conspiracy claims which are premised, at least in 23 part, on “Brady violations” and “fabrication of evidence” necessarily require demonstration of 24 Plaintiff’s alleged innocence and thus are barred under Heck. 25 To the extent such claims are based on Brady, they must fail because no prejudice could 26 possibly flow from the allegedly undisclosed exculpatory information. Plaintiff has pled guilty to 27 a crime and thus the elements thereof. The existence of material exculpatory information as to 28 such a crime is illogical because the outcome of the proceeding could not be changed. The 4 1 allegedly exculpatory information was known to Plaintiff at the time of the 1998 trial. The 2 information was nonetheless not withheld or “suppressed” for Brady purposes. See Cunningham 3 v. Wong, 704 F.3d 1143, 1154 (9th Cir. 2013) (where party “possessed the ‘salient facts’ that 4 would have allowed them” access to records to present to the court, no Brady “suppression” of 5 evidence). 6 Any of Plaintiff’s procedural due process claims based on the fabrication of evidence also 7 necessarily require his alleged innocence. Plaintiff’s guilty plea admits to the requisite possession 8 of the firearm and intent. If Plaintiff successfully argued a procedural due process claim premised 9 on the fabrication of evidence establishing the elements of the offense to which he pled guilty— 10 such as if Plaintiff was successful in arguing that a weapon was planted on him—it would 11 necessarily undermine the validity of his guilty plea and conviction regarding that offense. This is 12 impermissible under Heck. 13 The narrow exception in Jackson v. Barnes, 749 F.3d 755, 759-60 (9th Cir. 2014), does not 14 apply here. No secondary proceeding occurred because Plaintiff pled guilty before a second trial 15 commenced. It is impossible that there existed a secondary proceeding that was “completely 16 insulated from” Defendants' alleged violations. 17 IT IS HEREBY ORDERED that Plaintiff’s remaining Section 1983 claims are 18 DISMISSED. 19 Dated: June 23, 2015 20 21 22 ___________________________________ MANUEL L. REAL UNITED STATES DISTRICT JUDGE 23 24 25 26 27 28 5

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