Roe v. City and County of San Francisco et al

Filing 77

ORDER GRANTING MOTIONS TO DISMISS by Judge Alsup granting 62 Motion to Dismiss; granting 63 Motion to Dismiss (whalc2, COURT STAFF) (Filed on 6/1/2012)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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No. C 10-04768 WHA

MANUEL FRANCO,

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For the Northern District of California

United States District Court

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Plaintiff,
ORDER GRANTING
MOTIONS TO DISMISS

v.
CITY AND COUNTY OF SAN FRANCISCO, San Francisco
Chiefs of Police HEATHER FONG and GEORGE GASCON,
SANDRA C. JACQUEZ FLORES, CHRISTOPHER
MERINDINO, BRIAN GINN, MARIO MOLINA, JOSEPH
L. FORD, DANIEL H. BUTLER, ELIZABETH A.
WICKMAN, KENNETH KARCH, EMJOHN V. PASCUA,
MICHAEL J. KLINKE, JOHN S. POSUSNEY, DAVID S.
PARNELL, TSENG CHOW, AMY POLING, GEORGE
DOBBERSTEIN, CHRISTINE LASCALZO, KRISTINE
CARTER, FRANCISCO MARTINEZ, NICOLAS T. FORST,
MARK HAMMELL, SANG JUN, GREGORY A. JENKINS,
CHRISTINE LOSCALZO, BEN HORTON, SCOTT LAU,
JOHN CAGNEY, TOM NOOLAN, and DEFENDANT
DOES 1–40,
Defendants.
/

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INTRODUCTION

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In this civil action to recover damages arising from the indictment, arrest, and criminal

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prosecution of plaintiff, defendants move via separate motions to dismiss the complaint in its

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entirety pursuant to Heck v. Humphrey, and various other grounds. For the reasons stated below,

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the motions to dismiss are GRANTED.

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STATEMENT
This is a civil action to recover damages arising from the indictment, arrest, and

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conviction of plaintiff Manuel Franco for acts he committed as a member of the Mara-

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Salvatrucha (“MS-13”) gang. Plaintiff brings claims under Sections 1983, 1985, Bivens, and the

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Racketeer Influenced and Corrupt Organizations Act. Notwithstanding his conviction by a jury

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for committing assault with a dangerous weapon in aid of racketeering in violation of 18 U.S.C.

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1959(a)(6), plaintiff alleges in this civil action that the criminal proceedings against him and his

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conviction were unlawful. Plaintiff’s theory is that defendants, local, state, and federal law

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enforcement officials, authorized the gang activities underlying his criminal conviction while he
worked with them as a human source. Thus, the theory goes, by arresting and prosecuting

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For the Northern District of California

United States District Court

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plaintiff in the criminal action, defendants violated a panoply of plaintiff’s constitutional rights.

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Defendants are numerous and have self-identified as “city” and “federal” defendants.

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The so-called city defendants are: City and County of San Francisco, Heather Fong, George

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Gascon, Mario Molina, Scott Lau, John Cagney, and Tom Noolan. The so-called federal

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defendants are: Daniel H. Butler, Tseng Chow, George Dobberstein, Joseph L. Ford, Nicolas T.

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Forst, Mark Hammell, Sandra Jacquez Flores, Gregory A. Jenkins, Kenneth Karch, Michael J.

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Klinke, Christine Loscalzo, Francisco Martinez, David S. Parnell, Emmanuel V. Pascua, Amy

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Poling, Kristine Poole, John S. Posusney, Elizabeth A. Wickman, Brian Ginn, Ben Horton, and

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Christopher J. Merindino. They city defendants and federal defendants have each filed separate

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motions to dismiss. Defendant Sang Jun, alleged to be a special FBI agent, is the only defendant

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who has not moved to dismiss.
PLAINTIFF’S ALLEGED WORK AS A HUMAN SOURCE.

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1.

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From September 2005 through February 2010, plaintiff worked as a paid embedded

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human source for local and federal law enforcement agencies (Compl. ¶¶ 1–2). Plaintiff was

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recruited on September 30, 2005, by defendant Molina to work as a human source for ICE’s San

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Francisco Operation Community Shield, a coordinated investigative effort into San Francisco

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gang activity, including MS-13 (id. at ¶¶ 24, 35, 37). That same day, plaintiff took part in a two-

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hour debriefing during which he was not advised of his right to counsel or his right against self
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incrimination (id. at ¶ 89). “Instead, he was tricked and induced to provide at length information

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in exchange for protection for him and his family, and future assistance [in] becoming law

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enforcement” (ibid.).

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Plaintiff served as a human source for defendant Molina for a three month period, “with

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approximately 20 meetings wherein [plaintiff] provided information by phone or in person that

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resulted in a critical arrest of gang member [sic]. Molina provided cash payment at times to

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[plaintiff]” (id. at ¶ 39). In February 2006, defendant Molina informed plaintiff that the FBI was

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interested in working directly with him as an informant (id. at ¶ 40). Defendant Molina “induced

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[plaintiff] to work with the FBI, stating he and his family would be protected, he would be paid
more, and that he could work to infiltrate the gang. [Plaintiff] agreed” (ibid.). “Individual

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For the Northern District of California

United States District Court

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members of the FBI, with the United States Attorney’s Office for the Northern District of

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California . . . regularly renewed [plaintiff’s] status as an activated human source authorized to

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engage in otherwise illegal activities in the pursuit of infiltrating the MS-13” (id. at ¶ 43).

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Defendants “knew that MS-13 members had targeted [plaintiff] and his family for murder, a

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threat that continues through the present day, nevertheless these individuals acted in concert to

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embed [plaintiff] into this dangerous gang, promising him safety and a future in law

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enforcement” (id. at ¶ 45).

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In October 2007, plaintiff’s handler at the FBI abandoned him as a human source (id. at ¶

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54). He did not inform plaintiff of this decision (ibid.). Plaintiff continued to work gathering

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intelligence on MS-13 under the belief that he was still acting as a human source (ibid.).
PLAINTIFF’S ARREST AND INDICTMENT.

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2.

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On July 11, 2008, “SFPD officers executed a search warrant of [plaintiff’s] residence.

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Shortly, thereafter, [plaintiff] went to SFPD at 850 Bryant and embarked on a multi-day

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debriefing providing an enormous amount of information he had amassed in the ensuing months.

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The debriefing was conduced by SFPD Homicide Inspectors Noolan and Cagney [both

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defendants], and ICE agents Ginn and Merendino [also defendants]; it concerned San Francisco

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Mission District killings” (id. at ¶ 55).

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On October 16, 2008, plaintiff was indicted on four counts and arrested on October 22,
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2008 (id. at ¶¶ 4, 59, 62). Plaintiff believed that the arrest was part of his cover so his identity as

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a human source would be protected (id. at ¶ 60). “Plaintiff is informed, believes, and based

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thereon alleges that FBI agents Flores and ICE Agent Brian Ginn [defendant], as well as

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defendant Does 10–20, who are presently unknown to the plaintiff, banged on his door and

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unlawfully arrested [plaintiff] in the very early morning hours of October 22, 2008” (id. at ¶ 59).

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That same day, defendants Molina, Merindino, Flores and defendant Does 11–20 interviewed

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plaintiff without an attorney present (id. at ¶ 61). Law enforcement promised to protect plaintiff

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and his family in exchange for continued cooperation (id. at ¶ 60). Plaintiff was incarcerated

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after his arrest (id. at ¶ 68).
On September 24, 2009, a third superseding indictment was filed charging plaintiff with

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For the Northern District of California

United States District Court

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four counts: Count One: racketeering conspiracy in violation of 18 U.S.C. 1962(d); Count Two:

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conspiracy to commit murder in aid of racketeering in violation of 18 U.S.C. 1959(a)(5); Count

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Three: conspiracy to commit assault with a dangerous weapon in aid of racketeering in violation

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of 18 U.S.C. 1959(a)(6); and Count Four: use/possession of a firearm in furtherance of a crime of

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violence in violation of 18 U.S.C. 1924(c) and (2) (RJN Exh. B at 29). Plaintiff’s criminal trial

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commenced in January 2012.

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3.

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During the criminal trial, plaintiff requested that the jury be instructed on the defense of

PLAINTIFF’S CRIMINAL TRIAL AND CONVICTION.

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entrapment, duress, and justification pursuant to the Ninth Circuit Model Criminal Jury

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Instructions 6.2 (entrapment), 6.5 (duress) and 6.7 (justification). The request was denied. The

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order of denial explained that “[n]o evidence of inducement was presented at trial” and that

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“[t]here was no indication that the government agents took any action to induce him to conspire

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to further the goals of MS-13” (RJN Exh. D at 7–8).

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At the close of the evidence, the jury was instructed on the law governing the case.

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Specifically, the jury was instructed that in order to convict plaintiff on Count Three, they must

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find that plaintiff “knowingly and intentionally conspired to commit assault with a dangerous

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weapon” with the intent “to gain entrance to, or to maintain or increase his position in” the

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alleged enterprise (RJN Exh. E at ¶ 30). The jury was also instructed on the allegation which
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forms the basis of plaintiff’s claims in this action (RJN Exh. E at ¶ 32):

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Defendant Franco contends that he was authorized by government
law enforcement officers to commit the acts charged in Counts
One, Two, Three and Four. If a person engages in conduct that
violates a criminal statute at the request of a government law
enforcement officer, with a sincere and reasonable belief that he is
acting as an authorized government agent to assist in law
enforcement activity, then that person may not be convicted of that
otherwise illegal act, because the requisite criminal intent is
lacking.

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As such, you may not convict [plaintiff] on any count unless the
government proves beyond a reasonable doubt that [plaintiff] did
not have a sincere and reasonable belief that he was acting as an
authorized government agent to assist in law enforcement activity
when he committed the offense charged in that count.

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Each count must be evaluated separately. The fact that [plaintiff]
was authorized to commit one crime does not necessarily mean he
was authorized to commit another crime. Similarly, if [plaintiff]
had a sincere and reasonable belief that he was acting as an
authorized agent to assist in law enforcement activity with respect
to one crime, it does not necessarily follow that he had a sincere
and reasonable belief as to other crimes.

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For the Northern District of California

United States District Court

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On February 16, 2012, the jury convicted plaintiff of Count Three, which charged him

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with violating Section 1959(a)(6) of Title 18 of the United States Code. In relevant part, the

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statute states that whoever conspires to commit assault with a dangerous weapon for the purpose

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of gaining, maintaining, or increasing position in an enterprise engaged in racketeering activity

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shall be punished for attempting or conspiring to commit a crime involving assault with a deadly

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weapon.

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The instant complaint alleges twelve claims for relief. (The claims are numbered one

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through eight and eleven through fourteen. There are no claims numbered nine and ten). The

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parties filed a stipulated dismissal as to plaintiff’s first, second, third, fourth, and sixth Bivens

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claims for relief against city defendants Molina, Lau, Cagney, and Noolan. The Bivens claims

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remain only as against the federal defendants.

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As against the federal defendants, plaintiff alleges the following Bivens claims for relief:

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(1) violation of the Fourth and/or Fourteenth Amendments: unlawful seizure and arrest without

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probable cause; (2) violation of the Fifth and/or Fourteenth Amendments: denial of liberty and
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due process; (3) violation of the First, Fourth and/or Fourteenth Amendments: right to be free

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from harassment and intimidation designed to restrain speech; (4) violation of the Sixth and Fifth

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Amendments: interference with the right to counsel and right against self-incrimination;

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(5) conspiracy to violate the First, Fourth, Fifth, and Fourteenth Amendments. Plaintiff alleges

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against supervising federal defendants Butler and Ford a Bivens claim for (6) violation of the

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Fourth, Fifth, Sixth, Ninth, and Fourteenth Amendments: failure to train and supervise.

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As against the various city defendants, plaintiff alleges the following Section 1983

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claims: (7) violation of the Fourth, Fifth, Sixth, and Fourteenth Amendments; (8) violation of

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the Fourth, Fifth, Sixth, and Fourteenth Amendments: failure to train and supervise; and
(9) violation of the Fourth, Fifth, Sixth, and Fourteenth Amendments: policies, customs, and

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For the Northern District of California

United States District Court

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practices. Also against various city defendants, plaintiff alleges the following Section 1985

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claims: (10) conspiracy to interfere with and deprive civil rights through the Fourth, Fifth, Sixth,

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and Ninth Amendments, and (11) obstruction of justice through violations of the Fourth, Fifth,

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Sixth, and Fourteenth Amendments.

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As against both federal and city defendants, plaintiff alleges a claim for violation of civil

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RICO and RICO conspiracy pursuant to 18 U.S.C. 1962(c) and (d). This order follows full

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briefing and a hearing.

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ANALYSIS
Defendants have asserted multiple bases for dismissing this action in its entirety. Federal

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defendants claim qualified immunity as to certain claims and argue that the complaint fails to

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state a claim as to various of the claims alleged. City defendants likewise argue that various

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claims fail as they do not state a claim for relief that is plausible on the face of the complaint,

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and they too, are entitled to qualified immunity for certain claims. Both defendants contend that

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if plaintiff were to prevail on any one of the claims alleged in the complaint it would necessarily

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imply the invalidity of his arrest and conviction. Thus, both motions seek dismissal of this civil

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action in its entirety pursuant to Heck v. Humphrey, 512 U.S. 477 (1994). This order concludes

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that all claims alleged in this action are barred by Heck, except for the RICO claim. Thus, as to

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the claims that are barred, the order need not consider whether defendants are entitled to
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qualified immunity or whether plaintiff failed to state a claim.
To survive a motion to dismiss, a complaint must contain sufficient factual matter,

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accepted as true, to state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556

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U.S. 662, 677–78 (2009). A claim is facially plausible when there are sufficient factual

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allegations to draw a reasonable inference that defendants are liable for the misconduct alleged.

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While a court “must take all of the factual allegations in the complaint as true,” it is “not bound

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to accept as true a legal conclusion couched as a factual allegation.” Id. at 677–78 (quoting

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Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “[C]onclusory allegations of law and

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unwarranted inferences are insufficient to defeat a motion to dismiss for failure to state a claim.”

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For the Northern District of California

United States District Court

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Epstein v. Wash. Energy Co., 83 F.3d 1136, 1140 (9th Cir. 1996).
In his opposition, plaintiff refers to facts extrinsic to the complaint, providing no citation

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to the complaint, whatsoever, in any part of the opposition brief. This is a motion to dismiss.

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Facts outside the pleadings will not be considered.

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1.

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Both city and federal defendants contend that this action must be dismissed pursuant to

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Heck v. Humphrey.

Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the Supreme Court held that:

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in 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 . . . . Thus, when a state prisoner
seeks damages in a § 1983 suit, the district court must consider
whether a judgment in favor of the plaintiff would necessarily
imply the invalidity of his conviction or sentence; if it would, the
complaint must be dismissed unless the plaintiff can demonstrate
that the conviction or sentence has already been invalidated.

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512 U.S. at 486–87. “[T]he rationale of Heck applies to Bivens actions. Martin v. Sias, 88 F.3d
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774, 775 (9th Cir. 1996).
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A.
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Overview of Relationship Between
Civil and Criminal Action.

Here, plaintiff’s conviction for conspiracy to commit assault with a dangerous weapon in

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aid of racketeering in violation of 18 U.S.C. 1959(a)(6) has not been overturned or otherwise

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invalidated.
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This civil action mirrors plaintiff’s defense at trial. During the trial of his criminal case,

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plaintiff argued, as a defense, that he was authorized by law enforcement officers to engage in

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the conduct forming the basis for the criminal charges against him. In finding defendant guilty

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of Count Three for conspiracy to commit assault with a dangerous weapon in aid of racketeering,

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the jury necessarily rejected this defense. Yet, plaintiff attempts to hold defendants civilly liable

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for alleged violations of various of his constitutional rights, asserting this same theory, arguing

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that plaintiff was induced to commit criminal acts under the belief that he was acting as an

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authorized government agent. The jury’s verdict would necessarily be impugned if plaintiff

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were to prevail on the claims in this civil action, excepting the RICO claim.
Plaintiff, however, disagrees. He argues that his criminal conviction was based on acts

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For the Northern District of California

United States District Court

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he committed before he was a human source. By contrast, he argues that this civil action is

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based on actions undertaken after he began working with defendants. Thus, he concludes, Heck

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does not bar the instant civil action. But, as this Court has ruled, the evidence was sufficient to

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convict defendant based on criminal activities that occurred both before and after he became a

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human source. The order now proceeds to consider the claims against city defendants and then

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moves on to consider the claims against federal defendants.

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B.

Claims Against City Defendants.

As against the city defendants, plaintiff alleges Section 1983 and 1985 claims and a

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RICO claim (also alleged against the federal defendants). The Section 1983 and 1985 claims are

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barred by Heck.

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(1)

Section 1983 Claims.

Plaintiff brings three Section 1983 claims (claims seven, eight, and eleven) against city

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defendants. His seventh claim alleges violations of his Fourth, Fifth, Sixth, and Fourteenth

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Amendment rights. His eighth and eleventh claims are premised on the same underlying

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constitutional violations and are based on a failure to train and supervise theory and also on the

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theory that defendants “fail[ed] to enact and maintain appropriate and effective policies and

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customs related to the proper handling of Human Sources,” respectively (Compl. ¶ 123).

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Plaintiff alleges his Fourth and Fourteenth Amendment rights were violated by
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defendants “inducing [and] authorizing . . . him to perform otherwise illegal acts,” that he was

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“tricked and induced to provide at length [incriminating] information” in violation of his Fifth

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Amendment right against self-incrimination and Sixth Amendment right to counsel, and that he

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waived these constitutional rights because of defendants’ “trickery and deliberate deceit” (id. at

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¶¶ 71, 89, 92). He alleges that defendants failed to maintain policies and customs that would

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have ensured that “improper inducements or promises are not made” to human sources (id. at ¶

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123). He alleges that his arrest on October 22, 2008, violated his Fourth Amendment rights to be

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free from unlawful seizures and searches because he was arrested without a warrant and without

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reasonable suspicion or probable cause. Furthermore, plaintiff alleges he was “incarcerated
based on the information and activities the defendants authorized and directed him to do” (id. at

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¶ 70). He further alleges he was incarcerated in violation of his Fifth and Fourteenth

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Amendment due process rights and that he “suffered violation of his constitutional rights and

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remains deprived of his liberty” as “a result of the act and omissions of defendants (id. at ¶¶ 76,

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119).

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Heck bars a civil action to recover damages — like the action here — for an “allegedly

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unconstitutional conviction or imprisonment, or for other harm caused by actions whose

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unlawfulness would render a conviction . . . invalid” if it would “necessarily imply the invalidity

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of [plaintiff’s] conviction.” 512 U.S. at 486–87. Our court of appeals has recognized, that Heck

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bars a plaintiff’s civil action challenging the search and seizure of evidence upon which the

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plaintiff’s criminal charges and conviction were based. Szajer v. City of Los Angeles, 632 F.3d

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607, 611 (9th Cir. 2011). So too has Heck been found to bar a civil action where the plaintiff

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alleges his Miranda rights were violated in connection with a criminal investigation and

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prosecution, resulting in conviction. Trimble v. City of Santa Rosa, 49 F.3d 583, 584-85 (9th

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Cir. 1995); Williams v. City of Sacramento Police Dep’t, 2012 WL 762016, *3 (E.D. Cal. March

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6, 2012). Heck also bars civil actions alleging a violation of the right to counsel where

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prevailing on the claim would necessarily imply the invalidity of the plaintiff’s conviction.

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Valdez v. Rosenbaum, 302 F.3d 1039, 1049 (9th Cir. 2002).

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The bases for the allegations in plaintiff’s civil complaint were raised and rejected by the
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jury in plaintiff’s criminal proceeding. To find now that defendants lacked reasonable suspicion

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to detain plaintiff, that plaintiff had a sincere and reasonable belief that his criminal acts were

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committed as an authorized government agent, or that his belief rendered him unable to

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knowingly and effectively waive his rights to counsel and against self-incrimination would

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necessarily imply the invalidity of his conviction. So too would prevailing on the claims for

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failure to train or maintain appropriate and effective policies and customs regarding human

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sources because they are premised on the aforementioned constitutional violations.

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Indeed, in the criminal proceeding, plaintiff moved to instruct the jury on entrapment,
necessity, and duress (RJN Exh. C). The motion was denied. The order stated (RJN Exh. D at
7–8):
No evidence of inducement was presented at trial. Although
defendant Franco worked as a government informant for the SFPD
and the FBI, there was no evidence that any agent embedded him
in MS-13, induced him to conspire to conduct or participate in the
conduct of the affairs of MS-13, induced him to conspire to
commit murder or assault with a dangerous weapon in furtherance
of racketeering, or induced him to possess firearms in furtherance
of the charged conspiracies.

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While defendant Franco was authorized to serve as a “listening
post” — he was not charged with mere presence during gang
activity. He was charged with actively conspiring and
participating in unauthorized criminal activity. There was no
indication that the government agents took any action to induce
him to conspire to further the goals of MS-13.

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Nevertheless, plaintiff argues that Heck does not serve as a bar to this civil suit. Relying

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on Smith v. Hemet, plaintiff contends that Heck does not bar claims arising from acts post-dating

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the time period covered by the prior conviction. This argument is belied by the complaint.

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Plaintiff’s theory is that he was “convicted of activities which preceded his interaction

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with the defendants” (Opp. 10). Because he was not convicted of Count Four, plaintiff contends,

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he must necessarily have been convicted of acts which predated the acts complained of in his

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complaint. But, the latest of the racketeering acts for which plaintiff could have been convicted

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in his criminal trial occurred July 8, 2009, well after the “interactions with defendants” that form

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the basis of the allegations in this civil action (RJN Exhs. B, E at ¶ 27).

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Moreover, Count Four of the third superseding indictment charged plaintiff with
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use/possession of a firearm in furtherance of a crime of violence in violation of 18 U.S.C. 924(c)

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and (2). To convict on Count Three, the jury was instructed that “the government must prove . . .

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at least two racketeering acts” (RJN Exh. E at ¶ 27). As stated in the order denying plaintiff’s

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post-trial motion, “[t]he government also introduced significant evidence that defendant Franco

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himself specifically intended to agree and did agree to join and participate in the conspiracy”

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(RJN Reply Exh. G at 4). The order went on to state (id. at 5):

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Defendant Franco’s argument that no evidence of firearms
possession may be considered in determining whether there was
sufficient evidence presented at trial to support his conviction also
is also rejected. . . . Count Three was a conspiracy charge. Count
Four was not. It is not a necessary implication from the jury’s
verdict that it found no firearms possession ever occurred or was
conspired to. For example, the jury may have found that the
evidence at trial established beyond a reasonable doubt that the
conspiracy defendant Franco agreed to contemplated the
possession and/or use of firearms — but the jury may have been
unable to unanimously agree beyond a reasonable doubt on a
specific instance of possession or use of a firearm — which was
required to convict on Count Four.

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Count Three charged “[b]eginning on a date unknown to the Grand Jury but since at least

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the mid-1990s, and continuing up through and including the present” that plaintiff, together with

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others, did conspire and agree to “attack with firearms, knives, and other dangerous weapons

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actual and suspected Norteños, actual and suspected members of other gangs, and individuals

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suspected of cooperating with law enforcement, in order to maintain and increase their standing

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within the racketeering enterprise known as MS-13” (RJN Exh. B at ¶ 33). The jury verdict

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encompassed the entirety of MS-13’s racketeering enterprise at issue during the criminal trial.

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As stated in the order denying plaintiff’s motion for a new trial, the “evidence included

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testimony regarding MS-13’s rules and general practices, as well as specific gang-motivated

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stabbings, shootings, and homicides perpetrated by MS-13 members both before and after

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Franco was an informant” (RJN Ex. G). Thus, plaintiff’s attempt to avoid the Heck bar fails.

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Moreover, in Smith, our court of appeals declined to apply the Heck-bar to a Section

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1983 claim for excessive force in an arrest where the plaintiff had pleaded guilty to resisting

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arrest. Our court of appeals reasoned that a finding in favor of plaintiff on his Section 1983

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claim that defendants unlawfully used excessive force against him after he committed the acts
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which served as the basis for his conviction would not imply that his conviction was invalid.

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394 F.3d at 697–700. Smith is distinguishable from the facts in our case. Smith dealt with a

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single, isolated incident. Here, plaintiff alleges a broad, non-specific “pattern of fabrication and

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deceit in a deliberate and ongoing violation of plaintiff’s constitutional rights” (Compl. ¶ 5).

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Plaintiff’s Section 1983 claims are barred by Heck.

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(2)

SECTION 1985 CLAIMS.

The constitutional claims that serve as the basis for both of plaintiff’s Section 1985

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claims are barred by Heck. Thus, plaintiff’s twelfth and thirteenth claims brought under Section

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1985 against defendants for conspiracy to interfere with and obstruction of civil rights are
likewise barred. See Guerrero v. Gates, 442 F.3d 697, 703–04 (9th Cir. 2006) (Heck also applies

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to conspiracy claims).

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C.

Claims Against Federal Defendants.

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Plaintiff brings six Bivens claims against the federal defendants. “[T]he rationale of Heck

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applies to Bivens actions.” Martin v. Sias, 88 F.3d 774, 775 (9th Cir. 1996). See also Smithart v

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Towery, 79 F.3d 951, 952 (9th Cir. 1996) (“There is no question that Heck bars . . . claims that

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defendants lacked probable cause to arrest [a criminal defendant] and brought unfounded

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criminal charges against him. [A criminal defendant] may challenge the validity of his arrest,

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prosecution and conviction only by writ of habeas corpus.”).

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Claim one alleges Fourth and Fourteenth Amendment violations based on the federal

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defendants’ unlawful seizure and arrest of plaintiff in connection with the indictment in his

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criminal action, discussed herein (id. at ¶¶ 69–73). Claim two alleges a denial of liberty and due

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process based on plaintiff’s alleged unlawful arrest and incarceration (id. at ¶¶ 74–78). Claim

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three alleges that defendants subjected plaintiff to unlawful arrest, extended incarceration, and

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deprived him of his rights to be free from retaliatory investigation, arrest, and incarceration (id.

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at ¶¶ 79–86). Claim four alleges that certain of the federal defendants failed to advise plaintiff of

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his right to counsel and right against self-incrimination when he provided them with information.

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As with the Section 1983 claim, plaintiff alleges he was “duped” into waiving those rights

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(Compl. ¶¶ 89–90). For the reasons previously stated, the success of these claims would imply
12

1

the invalidity of plaintiff’s arrest and conviction.

2

Plaintiffs’ fifth and sixth Bivens claims against federal defendants are based on the

3

constitutional violations alleged in the first four claims. Specifically, plaintiff’s fifth claim

4

asserts that supervisory agents failed to properly train and supervise the law enforcement officers

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who allegedly committed the constitutional violations identified in claims one through four and

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the sixth claim alleges conspiracy to violate those rights. Prevailing on claims five and six

7

would imply the invalidity of plaintiff’s arrest and conviction. Thus, all of the claims alleged in

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plaintiff’s civil suit, excepting the RICO claim, which is addressed below, are barred by Heck.

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Generally, claims will not accrue until a plaintiff’s conviction, if ever, is overturned.
Galvin v. Hay, 374 F.3d 739, 744 n.4 (9th Cir. 2002). In Wallace v. Kato, the Supreme Court

11
For the Northern District of California

United States District Court

10

addressed the question of when a claim for damages arising out of a false arrest accrues. 549

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U.S. 384 (2007). The Court held that the “statute of limitations upon a § 1983 claim seeking

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damages for a false arrest in violation of the Fourth Amendment, where the arrest is followed by

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criminal proceedings, begins to run at the time the claimant becomes detained pursuant to the

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legal process.” Id. at 397. In Wallace, however, because the petitioner did not file his lawsuit

16

within the limitations period, the Court stated, “we need not decide, had he done so, how much

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time he would have to refile the suit once the Heck bar was removed.” Id. at 395 n.4.

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Plaintiff seeks an “order tolling the statute of limitations and preserving his right to re-

19

file his § 1983 action if and when his conviction is invalidated” (Opp. 14). In a post-hearing

20

submission, plaintiff cites to Wallace and requests that this order provide for a “90-day period

21

from the date that the Heck-bar is removed” to refile this action (Dkt. No. 76). But the holding

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in Wallace does not address our specific situation. The tolling issue may be addressed if and

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when plaintiff’s criminal conviction is overturned and if and when plaintiff seeks to refile this

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civil action. The claims barred by Heck are DISMISSED WITHOUT PREJUDICE.

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2.

RICO CLAIM.

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Defendants assert that plaintiff’s civil action is barred in its entirety by Heck. However,

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there is no analysis specific to the RICO claim and why prevailing on this claim would

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necessarily imply the invalidity of plaintiff’s criminal conviction. Instead, both defendants focus
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1

on the insufficiency of the RICO claim, as pleaded in this civil action. So, too, does this order.

2

Indeed, the claim is so poorly pleaded, it would be difficult to determine if prevailing on the

3

claim would necessarily imply the invalidity of plaintiff’s criminal conviction.

4

Plaintiff alleges a RICO claim under 18 U.S.C. 1962 against the city and federal

5

defendants. The elements of a civil RICO claim are as follows: “(1) conduct; (2) of an

6

enterprise; (3) through a pattern (4) of racketeering activity (known as predicate acts); (5)

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causing injury to plaintiff’s business or property.” Living Designs, Inc. v. E.I. Dupont de

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Nemours and Co., 431 F.3d 353, 361 (9th Cir. 2005).

9

A plaintiff is required under RICO to allege for each particular defendant the specific
“racketeering activity” committed by the defendant. Bach v. Idaho State Bd. of Med., 2012 WL

11
For the Northern District of California

United States District Court

10

175417, *5 (D. Idaho Jan. 20, 2012). Plaintiff’s allegations are not specific to any defendant.

12

They fail to link any conduct alleged in the RICO claim to any particular defendant. Instead, the

13

allegations are sweeping and attribute the conduct to all “defendants.” Furthermore, plaintiff

14

bases his RICO claim, in part, on purported violations of plaintiff’s “constitutional rights”

15

(Compl. ¶ 140). But “civil rights violations . . . do not fall within the statutory definition of

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‘racketeering activity,’ and hence are not predicate acts for RICO purposes.” Graf v. Peoples,

17

2008 WL 4189657, at *7 (C.D. Cal 2008). What is more, plaintiff does not identify which

18

constitutional violations identified in the complaint are the predicate acts. Plaintiff’s RICO

19

claim is deficient. He merely alleges that he has “been injured in his person, business or

20

property by reason of defendants’ violations” (Compl. ¶ 143). Plaintiff fails to plead facts

21

demonstrating he suffered a financial loss. “To demonstrate injury for RICO purposes, plaintiffs

22

must show proof of concrete financial loss, and not mere injury to a valuable intangible property

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interest. Personal injuries are not compensable under RICO.” Ove v. Gwinn, 264 F.3d 817, 825

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(9th Cir. 2001).

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Furthermore, plaintiff alleges that “Operation Community Shield and investigation

26

Devils Horns is and has been a RICO enterprise” and that “defendants were employed by various

27

federal and state agencies all coordinated through the joint investigation task force called OCS,

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conducting an investigation known as Devils Horn and therefore all defendants are associated
14

1

with the enterprise as detailed above” (Compl. ¶¶ 137–38). “In the alternative, there existed an

2

associated-in-fact enterprise, OCS, which consisted of the FBI, ICE, ICE-STI, ICE-OCS, SFPD,

3

and the SFGT” (id. at ¶ 139).

4

A federal agency does not constitute an enterprise for RICO purposes. See Donahue v.

5

FBI, 204 F. Supp. 2d 169, 173–74 (D. Mass. 2002). And cooperation between federal and local

6

government agencies does not establish a RICO enterprise. Kahre v. Damm, 342 Fed. Appx. 267

7

(9th Cir. 2009) (“[L]egitimate law enforcement activity carried out in the course of the officers’

8

employment” is not “conduct” as contemplated by the RICO statute.). Indeed, our court of

9

appeals has concluded that a federal employee acting within the scope of his or her employment
cannot be engaged in a pattern of racketeering activity. Pesnell v. Arsenault, 543 F.3d 1038,

11
For the Northern District of California

United States District Court

10

1042 (9th Cir. 2008). Thus, to the extent plaintiff’s RICO claim against the federal defendants is

12

alleged against them in their official capacities, the claim is fatally flawed.

13

As pled, plaintiff fails to state a RICO claim against the city and federal defendants. The

14

motions to dismiss for failure to state a RICO claim are GRANTED. Plaintiff may seek leave to

15

amend only as to the RICO claim and will have 14-CALENDAR DAYS from the date of this order

16

to file a motion, noticed on the normal 35-day track, for leave to file an amended complaint. A

17

proposed amended complaint must be appended to the motion. The motion should clearly

18

explain how the amendment to the complaint cure the deficiencies identified herein.

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3.

REQUEST FOR JUDICIAL NOTICE.

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Pursuant to Federal Rule of Evidence 201, city defendants request judicial notice of the

21

following documents: (1) the complaint; (2) the third superseding indictment; (3) jury

22

instructions 6.2, 6.5, 6.7, (4) the memorandum opinion regarding denial of request for

23

entrapment, duress, and justification instructions; (5) jury instruction number 32; (6) jury verdict

24

form; and (7) order denying Manuel Franco’s post trial motion for judgment of acquittal or new

25

trial. Plaintiff does not oppose. The request for judicial notice is GRANTED.

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1

CONCLUSION

2

For the above-stated reasons, defendants’ motions to dismiss are GRANTED. The Heck-

3

barred claims are DISMISSED WITHOUT PREJUDICE. The RICO claim is DISMISSED, with leave

4

to file a motion for leave to amend the complaint as to the RICO claim, as stated above. Counsel

5

is reminded that no time and expenses should be charged to the CJA for this lawsuit.

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7

IT IS SO ORDERED.

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9

Dated: June 1, 2012.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

11
For the Northern District of California

United States District Court

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