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)

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previous complaints and must be complete in itself without reference to the prior or superseded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