Lupercio v. Visalia Police Department

Filing 14

ORDER DENYING 11 and 13 for Reconsideration, signed by Chief Judge Lawrence J. O'Neill on 06/18/18. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT
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FOR THE EASTERN DISTRICT OF CALIFORNIA
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Case No. 1:18-cv-00036-LJO-EPG

RAMON NAVARRO LUPERCIO,

ORDER DENYING MOTION FOR
RECONSIDERATION.

Plaintiff,
v.

(ECF Nos. 11 & 13)

11 VISALIA POLICE DEPARTMENT,
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Defendant.

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Plaintiff Ramon Navarro Lupercio (“Plaintiff”), proceeding pro se and in forma pauperis, is

15 presently incarcerated for attempted murder. See Lupercio v. Gonzalez, No. 1:08-CV-0012 LJO WMW
16 HC, 2008 WL 5156646, at *1 (E.D. Cal. Dec. 9, 2008), report and recommendation adopted, No. 1:0817 CV-0012 LJO WMW HC, 2009 WL 159392 (E.D. Cal. Jan. 22, 2009). On January 8, 2018, Plaintiff
18 filed a civil complaint pursuant to 42 U.S.C. § 1983 against the Visalia Police Department, alleging that
19 officers of that department destroyed evidence that Plaintiff wanted to submit for DNA testing. ECF No.
20 1. Plaintiff maintains that the evidence would have shown he did not perpetrate the murder for which he
21 was convicted. See generally id. On April 13, 2018, Defendant moved to dismiss, arguing that Plaintiff’s
22 complaint is barred by Heck v. Humphrey, 512 U.S. 477 (1994). ECF No. 7. Plaintiff did not timely
23 oppose the motion, barring him from being heard in opposition to the motion. E.D. Cal. L.R. 230(c).
24 Defendant filed a notice of non-opposition. ECF No. 8. The Court deemed the matter is suitable for
25 decision on the papers without oral argument pursuant to Local Rule 230(g), ruled that the entire
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Complaint is barred by Heck, and declined to grant Plaintiff an opportunity to amend, as the Heck defect

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cannot be cured by amendment. ECF No. 9.

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On May 21, 2018, Plaintiff filed a document entitled “Opposition to City of Visalia’s Notice of

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Non-Opposition,” in which he indicated that he never received a copy of the motion to dismiss and

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requested an opportunity to file an opposition. ECF No. 11. The Court construed this as a request for

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reconsideration and to set aside the judgment pursuant to Fed. R. Civ. P. 59(e), but did not find cause

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based on that filing to set aside the judgment and re-open this case because the defects in Plaintiff’s

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Complaint appeared to the Court to be obvious and incurable. In an abundance of caution, however, the

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Court afforded Plaintiff an opportunity to provide further briefing explaining why his case should not be

10 dismissed. ECF No. 12.
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On June 11, 2018, Plaintiff filed a supplemental brief. ECF No. 13. After taking into

12 consideration this latest filing, in light of the entire record, the motion for reconsideration is DENIED.
13 Nothing in the supplemental brief addresses how, in light of Heck, this Court can entertain Plaintiff’s
14 § 1983 claims given that Plaintiff’s underlying conviction remains outstanding.
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16 IT IS SO ORDERED.
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Dated:

/s/ Lawrence J. O’Neill _____

June 18, 2018

UNITED STATES CHIEF DISTRICT JUDGE
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