Zepeda v. Schuld et al

Filing 103

ORDER Dismissing the third and fourth causes of action pursuant to 28 USC section 1915. Signed by Judge Kandis A. Westmore on 10/5/2017. (kawlc1, COURT STAFF) (Filed on 10/5/2017)

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1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 RICARDO ZEPEDA, Plaintiff, 8 9 10 United States District Court Northern District of California 11 Case No. 4:13-cv-05761-KAW ORDER DISMISSING THIRD AND FOURTH CLAIMS PURSUANT TO 28 U.S.C. 1915 v. Re: Dkt. No. 87 WALTER N. SCHULD, et al., Defendants. 12 13 On July 17, 2017, Plaintiff Ricardo Zepeda filed his third amended complaint. Plaintiff 14 filed this lawsuit pursuant to the in forma pauperis statute, so the Court must dismiss claims that 15 fail to state a claim upon which relief may be granted. 28 U.S.C. § 1915(e)(2). 16 17 For the reasons set forth below, the Court dismisses the third and fourth causes of action with prejudice, because any amendment would be futile. 18 19 I. BACKGROUND Plaintiff Ricardo Zepeda alleges civil rights violations in connection with various contacts 20 with law enforcement agencies and personnel, including the San Pablo Police Department, the 21 Richmond Police Department, and the Contra Costa County Sheriff’s Department. 22 In dismissing the second amended complaint with leave to amend, the Court advised 23 Plaintiff that the third amended complaint was his final opportunity to amend, and that “any future 24 dismissals [would] be with prejudice, which would likely result in his case being dismissed.” (Dkt. 25 No. 84 at 12.) Plaintiff was also reminded that the third amended complaint would supersede all 26 previous complaints and must be complete in itself without reference to the prior or superseded 27 pleading, and the undersigned again referred Plaintiff to the Federal Pro Bono Project’s Help Desk 28 to obtain free legal assistance. Id. 1 On July 17, 2017, Plaintiff filed his third amended complaint. (Third Am. Compl., “TAC,” 2 Dkt. No. 87.) Therein, he alleged that, on May 6, 2013, Deputy Sheriff Dale Hadly issued a 3 search warrant and he, along with John Does 11-20, searched Plaintiff’s residence, unreasonably 4 seized property, ransacked, and destroyed property, and handcuffed Plaintiff in violation of his the 5 Fourth Amendment. (TAC ¶¶ 14-15, 30.) 6 Plaintiff filed the instant lawsuit on December 12, 2013. On August 19, 2014, Plaintiff was 7 arrested for gun charges related to the search warrant executed in May 2013, and charges were 8 filed on August 22, 2014. (TAC ¶¶ 20, 23.) On November 2, 2014, the undersigned stayed the 9 instant action pending the resolution of Plaintiff’s criminal charges. (Dkt. No. 49.) Plaintiff alleges that Defendant Deputy District Attorneys Jon Yamaguchi and Steve Baldwin prosecuted 11 United States District Court Northern District of California 10 him in retaliation for the instant lawsuit. (TAC ¶¶ 25-27, 30.) Plaintiff ultimately pled guilty to a 12 misdemeanor gun charge and was sentenced to one year of court probation. (TAC ¶ 27.) 13 II. LEGAL STANDARD 14 Pursuant to 28 U.S.C. § 1915(e)(2), a court shall dismiss the case if at any time it 15 determines that the allegation of poverty is untrue, or that the action (1) is frivolous or malicious, 16 (2) fails to state a claim on which relief may be granted, or (3) seeks monetary relief against a 17 defendant who is immune from such relief. 18 Federal Rule of Civil Procedure 8(a)(2) requires that a pleading contain "a short and plain 19 statement of the claim showing that the pleader is entitled to relief." But "a complaint must 20 contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its 21 face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "Threadbare recitals of the 22 elements of a cause of action" and "conclusory statements" are not adequate. Ashcroft v. Iqbal, 23 556 U.S. 662, 678 (2009). "The plausibility standard is not akin to a probability requirement, but 24 it asks for more than a sheer possibility that a defendant has acted unlawfully . . . . When a 25 26 27 28 complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief." Id. (quoting Twombly, 550 U.S. at 557) (internal citations omitted). Pro se pleadings are liberally construed. Erickson v. Pardus, 551 U.S. 89, 94 (2007) 2 1 (citing Estelle v. Gamble, 429 U.S. 97, 106 (1976)). "A pro se complaint, however inartfully 2 pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers . . . . " 3 Estelle, 429 U.S. at 106 (internal citations omitted). Generally, if the court dismisses the 4 complaint, it should grant leave to amend even if no request to amend is made "unless it 5 determines that the pleading could not possibly be cured by the allegation of other facts." Lopez 6 v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). III. 7 DISCUSSION A. 9 Plaintiff’s third cause of action alleges Fourth amendment violations, including unlawful 10 seizure and arrest, stemming from the May 2013 incident at Plaintiff’s residence, against Deputy 11 United States District Court Northern District of California 8 Sheriff Dale Hadly and Does 11-20. (TAC ¶ 30.) A plaintiff cannot recover damages under §1983 12 for a claim involving an unlawful arrest, imprisonment, or conviction unless or until the 13 conviction has been vacated or set aside. See, e.g., Heck v. Humphrey, 512 U.S. 477, 486-87 14 (1994) (the question is “whether judgment in favor of a § 1983 plaintiff would necessarily imply 15 invalidity of [a plaintiff’s] conviction or sentence”); Wallace v. Kato, 549 U.S. 384, 393-94 16 (2007). Here, the lawsuit was previously stayed pending the outcome of Plaintiff’s criminal case 17 stemming from the May 6, 2013 incident, because a conviction would require the dismissal of the 18 claim. See Wallace, 549 U.S. at 394 (“If the plaintiff is ultimately convicted, and if the stayed civil 19 suit would impugn that conviction, Heck will require dismissal; otherwise, the civil action will 20 proceed, absent some other bar to suit.”) Plaintiff’s third cause of action alleges constitutional 21 violations related to the May 6, 2013 incident, including the constitutionality of the searches 22 conducted and the seizure of personal property. (See TAC ¶ 30.) Plaintiff was convicted of 23 misdemeanor gun charges, which bars the third cause of action, because a civil damages claim that 24 undermines a valid, underlying conviction or sentence is “not cognizable under § 1983.” Heck, 25 512 U.S. at 487. 26 Third Cause of Action for violations of § 1983 Accordingly, Plaintiff’s third cause of action is barred by Heck, and must be dismissed 27 pursuant to 28 U.S.C. § 1915(e)(2), because he fails to state a claim upon which relief can be 28 granted. While the dismissal is technically without prejudice, the claim will become actionable 3 1 only in the event that the conviction is overturned. Thus, at this juncture, Plaintiff is not granted 2 leave to amend. 3 B. 4 Plaintiff’s fourth cause of action alleges malicious prosecution against Deputy District Fourth Cause of Action for Malicious Prosecution 5 Attorneys Jon F. Yamaguchi and Steve Baldwin of Contra Costa County. (TAC ¶ 31.) 6 Specifically, Plaintiff alleges that he was arrested and prosecuted in 2014 in connection with the 7 execution of the May 6, 2013 search warrant in retaliation for filing the instant lawsuit. (TAC ¶¶ 8 20, 23, 25-27, 30.) Plaintiff’s criminal case resolved when he pled guilty to a misdemeanor gun 9 charge and was sentenced to one year of court probation. (TAC ¶ 27.) “One element that must be alleged and proved in a malicious prosecution action is termination of the prior criminal 11 United States District Court Northern District of California 10 proceeding in favor of the accused.” Heck, 512 U.S. at 484. Here, Plaintiff was convicted of a 12 crime in connection with the prosecution after he was held over for trial on a felony charge for 13 felon in possession of a firearm. (TAC ¶¶ 26-27.) Thus, the prosecution was not malicious, 14 because it did not terminate in his favor. 15 Moreover, the Court notes that, based on the facts alleged, the prosecutors are immune 16 from suit based on general prosecutorial immunity principles. Prosecutors are absolutely immune 17 from liability in § 1983 suits brought against prosecutorial actions that are “intimately associated 18 with the judicial phase of the criminal process,” due to concerns that the harassment of 19 “unfounded litigation” could adversely affect the exercising of independent judgment. Imbler v. 20 Pachtman, 424 U.S. 409, 423, 428, 430 (1976); see also Van de Kamp v. Goldstein, 555 U.S. 335, 21 (2009). Plaintiff’s allegations are limited to his prosecution in Contra Costa County Superior 22 Court, including plea negotiations. (See TAC ¶ 26.) Those are prosecutorial actions that are 23 intimately associated with the judicial phase of the criminal process, and, therefore, subject to 24 absolute immunity. 25 Accordingly, Plaintiff’s fourth cause of action for malicious prosecution is barred by both 26 Heck and because the deputy district attorneys enjoy absolute immunity from liability. 27 Accordingly, the fourth cause of action against the deputy district attorneys is dismissed with 28 prejudice due to prosecutorial immunity. 4 IV. 1 2 CONCLUSION In light of the foregoing, the Court dismisses claims three and four of the third amended 3 complaint pursuant to 28 U.S.C. § 1915(e)(2) without leave to amend, because further amendment 4 would be futile. Specifically, Plaintiff’s third cause of action is dismissed without prejudice, and 5 the fourth cause of action is dismissed with prejudice. 6 7 IT IS SO ORDERED. Dated: October 5, 2017 __________________________________ KANDIS A. WESTMORE United States Magistrate Judge 8 9 10 United States District Court Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5

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