Bell et al v. City of Boise, Idaho et al

Filing 152

ORDER granting in part and denying in part 141 Motion for Summary Judgment. Plaintiffs' second amended complaint shall be filed by February 25, 2014. A stipulated litigation plan is due no later than 20 days after Defendants respond to the amended Complaint.Signed by Judge Ronald E. Bush. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (kb)

UNITED STATES DISTRICT COURT
DISTRICT OF IDAHO

JANET F. BELL, BRIAN S. CARSON,
ROBERT MARTIN, LAWRENCE LEE
SMITH, ROBERT ANDERSON, PAMELA S. Case No. 1:09-cv-00540-REB
HAWKES, JAMES M. GODFREY, and BASIL
E. HUMPHREY,
MEMORANDUM DECISION
Plaintiffs,
AND ORDER ON DEFENDANTS’
SECOND MOTION FOR
vs.
SUMMARY JUDGMENT
CITY OF BOISE; BOISE POLICE
DEPARTMENT; and MICHAEL
MASTERSON, in his official capacity as Chief
of Police,
Defendants.

Currently pending before the Court is Defendants’ Second Motion for Summary
Judgment (Dkt. 141). The Court has carefully reviewed the record, considered oral
arguments, and now enters the following Order granting, in part, and denying, in part,
Defendants’ Motion.

MEMORANDUM DECISION AND ORDER - 1

SUMMARY OF THE DECISION
The Plaintiffs are individuals who either are or were homeless in Boise and they
allege that Defendants (Boise City and its Police Department) have criminalized the status
of being homeless by the manner in which Defendants enforce Boise City ordinances1
prohibiting (as a practical matter) camping and sleeping in public. Defendants now seek
summary judgment on Plaintiffs’ claim that Defendants’ enforcement actions violate the
Eighth Amendment’s prohibition on cruel and unusual punishment.
In ruling on Defendants’ previous summary judgment motion, the Court dismissed
Plaintiffs’ claims on jurisdictional and mootness grounds. Order (Dkt. 115). On
Plaintiffs’ appeal from that decision, the United States Court of Appeals for the Ninth
Circuit reversed this Court’s decision as to whether this federal court has jurisdiction to
consider the claims, but did “not reach the merits of Plaintiffs’ Eighth Amendment
challenges” on appeal. Bell v. City of Boise, 709 F.3d 890, 892-96 (9th Cir. 2013).
This Court on remand also does not reach the underlying merits of Plaintiffs’
Eighth Amendment claims. Those claims are largely barred by the so-called “favorabletermination” requirement of Heck v. Humphrey, 512 U.S. 477 (1994). In Heck, the
United States Supreme Court held that, “in order to recover damages for [an] allegedly
unconstitutional conviction or imprisonment, or for other harm caused by actions whose
unlawfulness would render a conviction or sentence invalid, a . . . plaintiff must prove

1

The ordinances are Boise City Code Section 9-10-02 02 (the “Camping Ordinance”)
and Boise City Code Section 6-01-05(A) (which prohibits disorderly conduct and is referred to
throughout this order as the “Sleeping Ordinance”).
MEMORANDUM DECISION AND ORDER - 2

that the conviction or sentence has been reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal authorized to make such determination, or
called into question by a federal court’s issuance of a writ of habeas corpus.” Id. at
486-87.
Plaintiffs could have raised their argument of Eighth Amendment
unconstitutionality as a defense to their criminal prosecutions and on direct appeal. A
decision in their favor on such claims in this case would necessarily imply the invalidity
of their prior convictions or sentences. As a consequence, such claims cannot be
prosecuted in this case under the holding in Heck. Accordingly, the Court will dismiss all
claims for relief that seek expungement from Plaintiffs’ records of any camping and
sleeping ordinance violations, reimbursement for any fines or incarceration costs,
recovery of damages for the alleged civil rights violations, and any other claim or
recovery that seeks relief for events that have already occurred and necessarily would
imply the invalidity of Plaintiffs’ convictions.
The dismissal does not, however, extend to Plaintiffs’ request for a declaratory
judgment under 28 U.S.C. §§ 2201 and 2202. That claim seeks prospective relief – i.e., a
declaration stating that Defendants’ present and threatened future actions in enforcing the
Ordinances violate Plaintiffs’ rights to be free from cruel and unusual punishment under
the Eighth Amendment and the Idaho Constitution (Article I, § 6).2 Further, this claim is

2

Because Plaintiffs have not argued that the Idaho Constitution provides more extensive
protection than does the Eighth Amendment to the U.S. Constitution, this decision refers to both
the state and federal constitutional challenges as an Eighth Amendment challenge throughout.
MEMORANDUM DECISION AND ORDER - 3

not precluded by the doctrine of res judicata, and it remains to be determined on the
merits. The Court will require, however, that Plaintiffs file an Amended Complaint
stating this claim more particularly and omitting any dismissed claims for relief.3
BACKGROUND4
In this lawsuit, Plaintiffs claim that Defendants enforce Boise City ordinances5 (the
“Ordinances”) regarding camping and sleeping in public against the homeless in Boise in
a manner that violates the Eighth Amendment’s prohibition against status crimes.
Plaintiffs are individuals who either are or were homeless in Boise. Each has been cited
3

For instance, regarding the Sleeping Ordinance, only nighttime enforcement remains at
issue. See Bell, 709 F.3d at 896 (“Plaintiffs do not appeal the court’s decision that their Eighth
Amendment claims concerning daytime enforcement of the Sleeping Ordinance failed as a
matter of law.”). Additionally, the state constitutional claims are at issue only to the extent that
their federal counterparts survive. See Bell v. City of Boise, 834 F.Supp.2d 1103, 1116 (D.Idaho
2011) (finding that “the state constitutional challenges fail for the same reasons the federal
constitutional claims fail”); Bell, 709 F.3d at 896 n.8 (finding that, by not raising the issue in
their opening brief, Plaintiffs had waived appeal of the district court’s dismissal of their Idaho
constitutional claims for the same reasons as their federal counterparts).
4

The facts are set forth more fully in the Court’s prior Memorandum Decision and Order
(Dkt. 115) and the opinion of the United States Court of Appeals for the Ninth Circuit in Bell v.
City of Boise, 709 F.3d 890 (9th Cir. 2013). For that reason, and because the parties are familiar
with the factual background of this case, the full facts will not be recited here, but are
incorporated by reference to the Court’s Order at Docket Number 115 and the Ninth Circuit’s
opinion in Bell.
5

The ordinances at issue are Boise City Code (“B.C.C.”) Sections 9-10-02 and 6-0105(A). Boise City Code § 9-10-02 (the “Camping Ordinance”) makes it a crime for any person
“to use any of the streets, sidewalks, parks or public places as a camping place at any time.”
Boise City Code § 6-01-05(A) (the “Sleeping Ordinance”) criminalizes disorderly conduct,
defined to include “[o]ccupying, lodging or sleeping in any building, structure or place, whether
public or private, or in any motor vehicle without the permission of the owner or person entitled
to possession or in control thereof.” B.C.C. § 6-01-05(A). These are considered misdemeanor
crimes, punishable by a fine not exceeding one thousand dollars ($1,000) and imprisonment in
the county jail not to exceed six (6) months. See B.C.C. §§ 6-01-21; 9-10-19. See also Idaho
Code § 18-111 (explaining the difference between felonies, misdemeanors, and infractions).
MEMORANDUM DECISION AND ORDER - 4

and convicted under Boise City’s Camping Ordinance, or its Sleeping Ordinance, or
both.6 Defendants are the City of Boise, the Boise City Police Department, and Boise
City Police Chief Michael Masterson.
Plaintiffs contend that the Defendants’ policy, custom, and practice of issuing
citations, arresting, and “harassing” homeless individuals, including Plaintiffs, under the
Ordinances has the effect of criminalizing homelessness. Id. at ¶ 35. They seek
declaratory, injunctive, and monetary damages relief under 42 U.S.C. § 1983 and 28
U.S.C. §§ 2201-02. More specifically, Plaintiffs ask for: (1) an order enjoining
Defendants from enforcing the Ordinances against people sleeping or lying down in
public; (2) an order compelling the City of Boise to expunge the criminal records of any
homeless individuals cited or arrested and charged under the Ordinances; (3) an order
requiring reimbursement of any fines paid or incarceration costs imposed upon homeless
individuals for violation of the Ordinances; (4) and declaratory relief. See Amd. Compl.,
p. 25 (Dkt. 53).
Defendants previously moved for summary judgment on all claims raised by
Plaintiffs in their Amended Complaint (Dkt. 53). The Court entered a Memorandum
Decision and Order which held that the Rooker–Feldman doctrine7 precluded subject

6

Defendants’ Statement of Undisputed Facts (Dkt. 141-1) details the sentences imposed
and attaches the state court docket sheets for each case. Plaintiffs report that they have paid fines
ranging from $25 to $75 and/or have been sentenced to jail terms ranging from one to 90 days.
(Dkt. 143, p. 1).
7

See Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923); District of Columbia Court of
Appeals v. Feldman, 460 U.S. 462 (1983).
MEMORANDUM DECISION AND ORDER - 5

matter jurisdiction over Plaintiffs’ claims for retrospective relief and that Plaintiffs’
claims for prospective injunctive and declaratory relief were largely moot because of
changes in the Ordinances and the City’s enforcement of the same stemming from an
amendment made to one of the Ordinances, and an internal policy issued by the Chief of
Police regarding the enforcement of both Ordinances. Order (Dkt. 115).
On Plaintiffs’ appeal, the Ninth Circuit reversed the dismissal of Plaintiffs’ claims
for retrospective relief “because those claims are not barred by the Rooker–Feldman
doctrine” and reversed the dismissal of Plaintiffs’ claims for prospective relief “because
those claims have not been mooted by Defendants’ voluntary conduct.” Bell v. City of
Boise, 709 F.3d 890, 892 (9th Cir. 2013). The Ninth Circuit did “not reach the merits of
Plaintiffs’ Eighth Amendment challenges” on appeal, but did rule that jurisdiction exists
as to those claims.8 Id. at 896. In a footnote, however, the Ninth Circuit made specific
reference to Heck v. Humphrey’s “favorable-termination” requirement and raised the
question as to whether the holding in Heck bars Plaintiffs’ Eighth Amendment claims.
Bell, 709 F.3d at 897 n.11 (quoting Heck, 512 U.S. 477, 486–87 (1994) (“We hold that, in

8

The Eighth Amendment is the only remaining basis for Plaintiffs’ challenge to the
ordinances because Plaintiffs waived appeal of all other issues “by failing to challenge these
rulings in their opening brief.” Bell, 709 F.3d at 896 n.8 (explaining that although this Court
“held that Plaintiffs’ right to travel claims failed as a matter of law, the Camping Ordinance was
not unconstitutionally vague, the overbreadth doctrine did not apply outside the First
Amendment context, and the Idaho constitutional claims failed for the same reasons as their
federal counterparts[,] Plaintiffs have waived appeal of these issues by failing to challenge these
rulings in their opening brief.”). Additionally, Plaintiffs did not appeal the ruling that the
daytime enforcement of the Sleeping Ordinance failed as a matter of law, so only nighttime
enforcement is at issue.
MEMORANDUM DECISION AND ORDER - 6

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, expunged by executive order, declared invalid by a state
tribunal authorized to make such determination, or called into question by a federal
court’s issuance of a writ of habeas corpus”) (footnote omitted)). Following the remand,
Defendants filed their second motion for summary judgment, at issue now, arguing twofold that the holding in Heck and claim preclusion principles bar Plaintiffs’ Eighth
Amendment claims.
DISCUSSION
A.

Plaintiffs’ remaining claim is an Eighth Amendment challenge to Defendants’
alleged conduct of criminalizing homelessness as a status offense.
Plaintiffs allege that “Defendants are punishing Plaintiffs and other homeless

individuals based on their status as homeless person[s]” and that doing so “constitute[s]
cruel and unusual punishment in violation of Plaintiffs’ well established rights under the
Eighth Amendment.” Amd. Compl., ¶¶ 57-58 (Dkt. 53). In response to Defendants’ first
summary judgment motion, Plaintiffs similarly argued that “it is unconstitutional to
criminalize involuntary acts that are an unavoidable consequence of being homeless, i.e.,
acts that [a homeless person] is powerless [to] avoid.” Pls.’ Resp., p. 1 (Dkt 85) (citation
and internal quotation marks omitted). In making such arguments, Plaintiffs largely rely

MEMORANDUM DECISION AND ORDER - 7

on the case of Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir. 2006), vacated by
505 F.3d 1006 (9th Cir. 2007).9
In Jones, a panel decision of the Ninth Circuit Court of Appeals focused upon a
discrete Eighth Amendment claim, i.e., whether the Cruel and Unusual Punishment clause
limits not just the ways in which a state can punish criminal behavior, but also “what”
behavior or conduct a state can criminalize. Jones, 444 F.3d at 1128–29. The Cruel and
Unusual Punishment clause “circumscribes the criminal process in three ways: First, it
limits the kinds of punishment that can be imposed on those convicted of crimes . . .;
second, it proscribes punishment grossly disproportionate to the severity of the crime . . .;
and third, it imposes substantive limits on what can be made criminal and punished as
such. . . .” Ingraham v. Wright, 430 U.S. 651, 667–68 (1977). The third limitation,
however—and the one at issue in Jones and in this case—should “be applied sparingly.”10
Id. at 668 (internal citations omitted).
According to the panel in Jones, when a state engages in this type of Eighth
Amendment violation, “a person suffers constitutionally cognizable harm as soon as he is

9

As described in the Court’s earlier Memorandum Decision and Order, “[t]he Jones
decision was later vacated as a result of a settlement agreement; therefore the opinion is not
binding.” (Dkt. 115, p. 6, n. 1). Even so, this Court considered Jones because it “does shed light
on the issue and how the Ninth Circuit might approach such challenges in the future.” Id.
10

See also Powell v. Texas, 392 U.S. 514, 531–32 (1968) (“The primary purpose of [the
Cruel and Unusual Punishment clause] has always been considered, and properly so, to be
directed at the method or kind of punishment imposed for the violation of criminal statutes; the
nature of the conduct made criminal is ordinarily relevant only to the fitness of the punishment
imposed.”). The United States Supreme Court in Powell described Robinson’s proscription as
one against statutes or laws that seek “to punish a mere status”. Powell, 392 U.S. at 532.
MEMORANDUM DECISION AND ORDER - 8

subjected to the criminal process.” Jones, 444 F.3d at 1129. Indeed, many Eighth
Amendment cases involve challenges to the terms of a criminal punishment which arise in
a manner that could not be raised as a direct defense or in a subsequent appeal of a
conviction. However, this is not such a case. Here, the Eighth Amendment claims could
have been raised as a defense in a criminal proceeding and on direct appeal.
An analogous case, involving an appeal of a criminal conviction under a state
statute which allegedly criminalized the status of addiction to narcotics, is Robinson v.
California, 370 U.S. 660, 661, 666-67 (1962).11 In Robinson, the Supreme Court
considered the case on direct review, in deciding Robinson’s argument that “a law which
made a criminal offense of . . . a disease would doubtless be universally thought to be an
infliction of cruel and unusual punishment in violation of the Eighth and Fourteenth
Amendments”. Id. Similarly, a constitutional challenge to a Texas statute criminalizing
public intoxication also went to the Supreme Court on direct appeal from a state
conviction.12 Powell v. Texas, 392 U.S. 514, 517 (1968).

11

Although the “appellant tried unsuccessfully to secure habeas corpus relief in the
District Court of Appeal and the California Supreme Court,” Robinson, 370 U.S. 660, 664, n.6,
his appeal was “from the Appellate Department of the Superior Court of California, County of
Los Angeles.” Robinson v. California, 368 U.S. 918 (1961).
12

There are some cases in which the Heck bar has not been applied to Eighth
Amendment claims, but those cases involved challenges to the type of punishment imposed or
conditions of incarceration and not to what conduct a state may criminalize. See, e.g., Hanner v.
City of Dearborn Heights, No. 07-15251, 2009 WL 540699, *4-6 (E.D.Mich. Mar. 4, 2009)
(finding Heck did not bar plaintiff’s claim that he was deprived of a crutch in jail in violation of
the Eighth Amendment’s proscription against cruel and unusual punishment).
MEMORANDUM DECISION AND ORDER - 9

Moreover, whether this cases presents a “facial” or “as-applied” challenge to a
statute or ordinance is immaterial. An as-applied challenge can be raised in a criminal
prosecution, and then on direct appeal from any conviction. See, e.g., United States v.
Jinian, 725 F.3d 954, 958 (9th Cir. 2013) (appellant argued a wire fraud statute was
unconstitutional as applied to him); United States v. Shetler, 665 F.3d 1150, 1156 (9th
Cir. 2011) (appellant argued at the trial level and on appeal that a statute, as applied to
him, was void for vagueness).
In sum, Plaintiffs could have raised both facial and as-applied Eighth Amendment
defenses to their criminal charges, even though they did not do so.13
B.

Heck v. Humphrey bars Plaintiffs’ Eighth Amendment claims brought
under § 1983.
Plaintiffs did not raise Eighth Amendment claims in their state criminal cases, nor

did any appeal their convictions. Hence, Eighth Amendment arguments were never
13

Although not mentioned in the briefing in connection with the Heck issue, Plaintiffs
argued in the preclusion doctrine section of their brief that they “could not have conveniently
raised their Eighth Amendment claim[s] in prior criminal misdemeanor proceedings.” Pls.’
Resp., p. 14 (Dkt. 143). A homeless person, presumably indigent and perhaps dealing with other
difficulties such as mental illness, may have challenges in navigating through the criminal justice
system. However, those challenges, even if daunting, are not unique and the issue presented
here is not a Gideon v. Wainwright question. Others who are also indigent, or have limited
understanding of the legal system, or are mentally ill, or cannot speak English, and so forth, also
face challenges. Such circumstances, lamentable as they are, may make the individual’s
encounter with the criminal justice system difficult, but such difficulty is a practical, not legal,
barrier to raising a constitutional defense to a criminal charge. Moreover, court-appointed
counsel assisted most of the Plaintiffs who appeared for the proceedings in their misdemeanor
cases, so those individuals were not navigating the criminal justice system alone. (Dkt. 141-1;
141-3, pp.4-5). It is difficult to envision a sensible line to be drawn upon the particular details of
an individual defendant’s personal circumstances (leaving aside an indigent’s right to counsel,
which is not part of the analysis), by which this or any other court could decide that the rule in
Heck ought not to apply solely because of those circumstances.
MEMORANDUM DECISION AND ORDER - 10

considered in the criminal cases. That fact is significant here, although not under any sort
of exhaustion requirement. See Heck, 512 U.S. at 489-90 (explaining that “[e]ven a
prisoner who has fully exhausted available state remedies has no cause of action under
§ 1983 unless and until the conviction or sentence is reversed, expunged, invalidated, or
impugned by the grant of a writ of habeas corpus”) (citations and internal quotation marks
omitted)). “[W]hen 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.” Heck, 512 U.S. at 487 (emphasis added). Further:
[I]n 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,
expunged by executive order, declared invalid by a state
tribunal authorized to make such determination, or called into
question by a federal court’s issuance of a writ of habeas
corpus, 28 U.S.C. § 2254. A claim for damages bearing that
relationship to a conviction or sentence that has not been so
invalidated is not cognizable under § 1983.
512 U.S. at 486–87 (emphases added).
A judgment finding the Ordinances unconstitutional in this case necessarily would
imply the invalidity of Plaintiffs’ convictions under those Ordinances. The fulcrum of
Plaintiffs’ § 1983 claims is the allegation of unconstitutional convictions. None of those
convictions, however, was reversed on direct appeal or otherwise called into question,
MEMORANDUM DECISION AND ORDER - 11

and none of the Plaintiffs raised a constitutional challenge in his or her criminal case,
including on appeal. The holding of Heck is a close fit to such circumstances.14
Accordingly, the Heck bar applies to Plaintiffs’ claims that would necessarily imply the
invalidity of the convictions or sentences. Here, that includes the relief requesting
expungement of the records of any camping and sleeping ordinance violations,
reimbursement for any fines or incarceration costs, recovery of damages for the alleged
civil rights violations, and any other claim or recovery tied to events that have already
occurred.
C.

Heck v. Humphrey does not bar Plaintiffs’ request for prospective
declaratory relief.
Plaintiffs’ have requested a declaratory judgment under 28 U.S.C. §§ 2201 and

2202, stating that Defendants’ present and threatened future actions in enforcing the
Ordinances violate the Eighth Amendment’s prohibition against cruel and unusual
punishment.15 See Amd. Compl., p. 25 (Dkt. 53).
14

Although not issued on or after January 1, 2007, see Fed R. App. P. 32.1, one
unpublished disposition from the Ninth Circuit addresses similar issues. In Masters v. City of
Bellflower, No. 95-55921, 1996 WL 583625 (9th Cir. Oct. 7, 1996), the plaintiff raised a
constitutional challenge to the validity of a city animal control statute which formed the basis of
his criminal conviction. Id. at *1. The panel ruled that a judgment in the plaintiff’s favor would
necessarily imply that the statute and, therefore, the plaintiff’s conviction, were invalid. Id. The
criminal conviction had not been invalidated or reversed on direct appeal, and, accordingly, the
Ninth Circuit affirmed the district court’s ruling that the plaintiff’s § 1983 claim against the city
for damages was barred. Id., cert. denied 522 U.S. 871 (2007).
15

Plaintiffs cited to the Declaratory Judgment Act, 28 U.S.C. §§ 2201-02, in the
Jurisdiction and Venue section of their Amended Complaint (Dkt. 53), and asked for declaratory
relief in their Prayer for Relief, but did not include this claim as a separate “claim for relief”, see
id. pp. 22-24. However, they incorporated “all preceding paragraphs” in the section of the
Amended Complaint stating their claims for relief. Id. at p. 22, ¶ 55.
MEMORANDUM DECISION AND ORDER - 12

In most instances, the holding in Heck will bar § 1983 claims for injunctive or
declaratory relief. See Wilkinson v. Dotson, 544 U.S. 74, 81–82 (2005) (explaining that
certain “cases, taken together, indicate that a state prisoner’s § 1983 action is barred
(absent prior invalidation) – no matter the relief sought (damages or equitable relief), no
matter the target of the prisoner’s suit (state conduct leading to conviction or internal
prison proceedings) – if success in that action would necessarily demonstrate the
invalidity of confinement or its duration”) (emphasis added).16 However, Heck does not
necessarily preclude all claims under the Declaratory Judgment Act.
Moreover, Plaintiffs seek a declaration that the Ordinances violate both the United
States Constitution and the Idaho Constitution. See Los Angeles County, Cal. v.
Humphries, 131 S.Ct. 447, 451 (2010) (Section 1983 protects against “deprivation of any
rights ... secured by the Constitution and laws [of the United States]”.) (quoting 42 U.S.C.
§ 1983) (internal quotation marks omitted, emphasis added, alterations in original));
Skinner v. Switzer, 131 S.Ct. 1289, 1301–02 (2011) (Thomas, J., dissenting) (explaining
that the boundaries of § 1983 were first circumscribed in Preiser v. Rodriguez, 411 U.S.
at 489, where “the Court began with the undisputed proposition that a state prisoner may
not use § 1983 to challeng[e] his underlying conviction and sentence on federal

16

But see Wolff v. McDonnell, 418 U.S. 539, 554-55 (1974) (permitting prisoners to use
§ 1983 “as a predicate to a damages award” to obtain a declaratory judgment, explaining that
“because under [Preiser v. Rodriguez, 411 U.S. 475 (1973)] only an injunction restoring good
time improperly taken is foreclosed, [it would not] preclude a litigant with standing from
obtaining by way of ancillary relief an otherwise proper injunction enjoining the prospective
enforcement of invalid prison regulations”).
MEMORANDUM DECISION AND ORDER - 13

constitutional grounds”) (alteration in original, emphasis added, internal quotation marks
omitted)). Accordingly, summary judgment is not warranted at this time on Plaintiffs’
request for declaratory relief under the Declaratory Judgment Act, 28 U.S.C. §§ 220102.17
D.

Heck’s bar applies to Plaintiffs’ Eighth Amendment claims brought under
§ 1983, even if federal habeas relief was unavailable on the facts of this case.
Even if federal habeas relief was unavailable to any of the Plaintiffs because he or

she was never in custody (or if in custody, not for any significant length of time), Heck is
still a bar to the § 1983 claims based on the Eighth Amendment. Plaintiffs ask that the
Court rule otherwise, relying on a concurring opinion written by Justice Souter in Spencer
v. Kemna, 523 U.S. 1 (1998), a case decided after Heck. Pls.’ Resp., p. 4 (Dkt. 143). In
his Spencer concurrence, Justice Souter opined that “a former prisoner, no longer ‘in
custody,’ may bring a § 1983 action establishing the unconstitutionality of a conviction or
confinement without being bound to satisfy a favorable-termination requirement that it
would be impossible as a matter of law for him to satisfy.” Id. at 21 (Souter, J.
concurring) (emphasis added). That circumstance, however, does not apply to Plaintiffs
here, as it was not “impossible as a matter of law” for Plaintiffs to obtain the “favorable
termination” required to bring a §1983 action. Any of the Plaintiffs could have raised a

17

As detailed further on in this Decision, the Court will require Plaintiffs to file an
Amended Complaint and, if Plaintiffs believe they have a right to bring a declaratory judgment
claim under § 1983 as one for prospective declaratory and injunctive relief despite the Court’s
ruling that Heck bars all other relief requested under §1983, they should support their amended
claim with appropriate authority.
MEMORANDUM DECISION AND ORDER - 14

constitutional challenge to the ordinances in their criminal case, based on the same facts
underlying Plaintiffs’ Eighth Amendment claims in this case, and, if successful, paved the
way for a §1983 case.
Most court rulings that have found an exception to the Heck doctrine have done so
in reliance on Justice Souter’s concurrence in Spencer18. That concurrence, however,
must be considered in conjunction with a close reading of the majority opinion issued in
Spencer, in which the Court affirmed the dismissal of a habeas claim brought by a
petitioner who was no longer in custody. Such a claim, the Supreme Court ruled, was
moot because after being released from custody the petitioner no longer suffered any
continuing collateral consequences from his earlier parole revocation. Id. at 14–16.
Justice Souter and the other justices joining in his concurrence sought to limit the reach of
the majority’s ruling, (and that of Heck), by asserting that “a former prisoner, no longer
‘in custody,’ may bring a § 1983 action establishing the unconstitutionality of a
conviction or confinement without being bound to satisfy a favorable-termination
requirement,” and thus “the answer to [petitioner] Spencer’s argument that his habeas
claim cannot be moot because Heck bars him from relief under § 1983 is that Heck has no
such effect.” Id. at 21 (Souter, J., concurring).19

18

Spencer, 523 U.S. 1, 18-19 (Justice Souter, in his concurrence, joined in the “Court’s
opinion as well as the judgment, though [he did] so for an added reason that the Court [did] not
reach.”).
19

Justice Stevens, who dissented from the majority opinion, agreed with those Justices
joining in the Souter concurrence that a petitioner without a remedy under the habeas statute may
bring an action under § 1983. Id. at 25 n. 8 (Stevens, J., dissenting).
MEMORANDUM DECISION AND ORDER - 15

The petitioner in Spencer argued that the ruling in Heck “would foreclose him
from pursuing a damages action” under § 1983, “unless he can establish the invalidity of
his parole revocation,” and, therefore, “his action to establish that invalidity cannot be
moot.” Id. at 17. The majority of the Justices were not persuaded, and described this
argument as “a great non sequitur, unless one believes (as we do not) that a § 1983 action
for damages must always and everywhere be available.” Id. (emphasis added). The
majority opinion then went on to explain that a § 1983 damages claim is not foreclosed by
Heck “[i]f, for example, petitioner were to seek damages for using the wrong procedures,
not for reaching the wrong result,” and if that procedural defect did not “necessarily
imply the invalidity of the revocation.” Id. (citing Heck, 512 U.S. at 482–83) (citations
and internal quotation marks omitted).
Significantly, Justice Souter agreed that “the majority opinion in Heck can be read
to suggest that [the] favorable-termination requirement is an element of any § 1983 action
alleging unconstitutional conviction, whether or not leading to confinement and whether
or not any confinement continued when the § 1983 action was filed.” Id. at 19 (citing
Heck, 512 U.S. at 483–84). He further agreed that the majority in Heck “acknowledged
the possibility that even a released prisoner might not be permitted to bring a § 1983
action implying the invalidity of a conviction or confinement without first satisfying the
favorable-termination requirement.” Id. at 19-20 (Souter J., concurring). Justice Souter
then explained that he joined the majority decision in Heck, “not because the
favorable-termination requirement was necessarily an element of the § 1983 cause of
MEMORANDUM DECISION AND ORDER - 16

action for unconstitutional conviction or custody, but because it was a ‘simple way to
avoid collisions at the intersection of habeas and § 1983.’” Id. at 21 (citation omitted).
Justice Souter’s concurrence assumes that the federal habeas statute may provide
the only means of satisfying Heck’s favorable-termination requirement and, in many
cases, that may well be true. However, in other cases, plaintiffs (such as those who
brought this lawsuit) convicted of state crimes may raise § 1983 claims based upon
underlying circumstances in which those same plaintiffs could have secured favorable
terminations by raising the defense of unconstitutionality before the trial court, or by
direct appeal, or by post-conviction litigation. See, e.g., Molina-Aviles v. District of
Columbia, 797 F.Supp.2d 1, 6 (D.D.C. June 23, 2011) (pointing to the availability of state
court habeas and habeas-type remedies to challenge plaintiffs’ alleged unconstitutional
driving while intoxicated convictions and concluding that “Heck precludes any § 1983
suit challenging a criminal conviction that has not already been favorably terminated,
regardless of the availability of habeas-type relief”). See also Harrison v. Michigan,
722 F.3d 768, 772–75 (6th Cir. 2013) (discussing Heck, 512 U.S. at 487).
Moreover, the Heck favorable-termination requirement is described in the
disjunctive, i.e., “a § 1983 plaintiff must prove that the conviction or sentence has been
reversed on direct appeal, expunged by executive order, declared invalid by a state
tribunal authorized to make such determination, or called into question by a federal
court’s issuance of a writ of habeas corpus.” 512 U.S. 486–87 (emphasis added).

MEMORANDUM DECISION AND ORDER - 17

After Spencer, some federal circuit courts have drawn upon Justice Souter’s
concurrence to support decisions which do not apply Heck’s favorable termination
requirement, in a variety of circumstances.20 See, e.g., Leather v. Eyck, 180 F.3d 420, 424
(2d Cir. 1999) (holding that Heck did not bar a plaintiff who was convicted and fined, but
not imprisoned, from alleging selective prosecution under § 1983 because he was never in
custody and thus could not seek habeas relief)21; Wilson v. Johnson, 535 F.3d 262,

20

The Second Circuit has issued the most recent decision upon the issue. See Poventud
v. City of New York, No. 12–1011–cv, 2014 WL 182313, *13 (2nd Cir. Jan. 16, 2014)
(explaining that “many violations of constitutional rights, even during the criminal process, may
be remedied without impugning the validity of a conviction” and finding that Poventud’s
conviction had been “declared invalid by a state tribunal”). See also id., 2014 WL 182313 at *37
(Jacobs, J., dissenting) (arguing “[t]here is no need to choose a side in this split because the
narrow exception articulated by Justice Souter would be inapplicable here in any event” as “[t]he
motivating concern in the Spencer dicta was that circumstances beyond the control of a criminal
defendant might deprive him of the opportunity to challenge a federal constitutional violation in
federal court” and the defendant in the Poventud case “is not such a person”).
21

Leather was assessed a $300 fine as well as a $25 surcharge, and his driver’s license
was suspended for 90 days, but he did not appeal this conviction. Leather, 180 F.3d at 424. The
Second Circuit relied on a prior decision, Jenkins v. Haubert, 179 F.3d 19 (2d Cir. 1999), to
decide “whether a plaintiff, convicted of a criminal offense, could proceed with a § 1983 claim
where no remedy of habeas corpus existed.” Id. However, the facts of Jenkins are
distinguishable from Leather and the case at hand. Jenkins’ § 1983 claim did not challenge his
state court conviction, but was based on his allegations that a state department of corrections
employee “violated his constitutional right to procedural due process in the course of presiding
over two separate disciplinary hearings.” 179 F.3d at 20. In concluding that Heck’s favorabletermination requirement did not bar Jenkins’ claim, the Second Circuit observed that, “[i]n Heck,
the Court did not address administrative or disciplinary segregation at all because the plaintiff
challenged only the legality of his underlying criminal conviction and not any subsequent
disciplinary action” and then “h[e]ld that a § 1983 suit by a prisoner, such as Jenkins,
challenging the validity of a disciplinary or administrative sanction that does not affect the
overall length of the prisoner’s confinement is not barred by Heck and Edwards.” 179 F.3d at
27. Thus, considering that the Leather decision relied on the factually distinct case of Jenkins,
this Court concludes that any persuasive value Leather may have does not override the other
considerations that led this Court to conclude that Heck applies to bar the Plaintiffs’ claims in
this case.
MEMORANDUM DECISION AND ORDER - 18

266–68 (4th Cir. 2008)22; Powers v. Hamilton Cnty. Pub. Defender Comm’n, 501 F.3d
592, 603 (6th Cir. 2007)23 (concluding that Heck is inapplicable because Powers’ one day
term of incarceration for his reckless-driving misdemeanor “was too short to enable him
to seek habeas relief”); DeWalt v. Carter, 224 F.3d 607, 617-18 (7th Cir. 2000)24 (relying
on Spencer to overrule Anderson v. County of Montgomery, 111 F.3d 494, 499 (7th Cir.

22

The Fourth Circuit in Wilson explained that the purpose of § 1983 is to “provid[e]
litigants with a uniquely federal remedy against incursions . . . upon rights secured by the
Constitution and laws of the Nation,” and that “[b]arring [the plaintiff’s] claim would leave him
without access to any judicial forum in which to seek relief for his alleged wrongful
imprisonment.” Wilson, 535 F.3d at 268. Plaintiffs here are not claiming they lacked access to a
judicial forum in which to raise their Eighth Amendment challenges.
23

The plaintiff in Powers filed a § 1983 action under circumstances similar to the
Plaintiffs here, i.e., upon a misdemeanor conviction for which only a short jail term was
imposed. Powers alleged that he was deprived of an indigency hearing “because the Public
Defender has a policy or custom of failing to request such hearings when its clients face jail time
for nonpayment of court-ordered fines his incarceration,” and that “the absence of any inquiry
into his ability to pay the court-imposed fine, violated his Fifth, Sixth, and Fourteenth
Amendment rights.” Powers, 501 F.3d at 597. However, in a later decision discussing Powers,
the Sixth Circuit commented:
Because Justice Souter joined both the Court’s opinion that
Spencer’s habeas claim was moot and the judgment affirming the
district court’s decision to that effect, the question he raised about
whether Spencer could nevertheless maintain a § 1983 action for
damages was not only unnecessary to the holding of the case but
could also be described as purely hypothetical. At this point,
however, we are bound by Powers . . . in which the panel chose to
treat the Souter concurrence as establishing a rule of law, rather
than dictum.
Harrison v. Michigan, 722 F.3d 768, 774 n.1 (6th Cir. 2013).
24

The Seventh Circuit explained that “[u]nlike the plaintiffs in Preiser, Heck, and
Edwards,” Mr. DeWalt’s case does not “lie at the intersection of sections 2254 and 1983”
because “DeWalt does not challenge the fact or duration of his confinement, but only a condition
of his confinement-the loss of his prison job.” 224 F.3d at 617. Thus, DeWalt’s circumstances
also are unlike those of the Plaintiffs in this case, who have challenged the fact of their
conviction and the resulting fines and, for some, confinement.
MEMORANDUM DECISION AND ORDER - 19

1997), which held that Heck barred a former prisoner from challenging his conviction in a
§ 1983 suit even if he could not seek habeas relief); Cohen v. Longshore, 621 F.3d 1311,
1317 (10th Cir. 2010) (“adopt[ing] the reasoning of these circuits and hold[ing] that a
petitioner who has no available remedy in habeas, through no lack of diligence on his
part, is not barred by Heck from pursuing a § 1983 claim”); Harden v. Pataki, 320 F.3d
1289, 1298-99 (11th Cir. 2003) (concluding “that Heck does not bar most § 1983
damages claims based on improper extradition”).
Plaintiffs argue that this Court should reach a similar result, where they argue that
Plaintiffs “never had, and never would have on mootness grounds, an opportunity to
petition for a writ of habeas corpus.” Pls.’ Resp., p. 1 (Dkt. 143). However, other circuits
have imposed Heck’s bar even when federal habeas relief is not available,
notwithstanding the Souter concurrence in Spencer. As described by the Third Circuit:
As we recently held in Gilles v. Davis, 427 F.3d 197, 210 (3d
Cir. 2005), a § 1983 remedy is not available to a litigant to
whom habeas relief is no longer available. In Gilles, we
concluded that Heck’s favorable-termination requirement had
not been undermined, and, to the extent that its validity was
called into question by Spencer, we observed that the Justices
who believed § 1983 claims should be allowed to proceed
where habeas relief is not available so stated in concurring
and dissenting opinions in Spencer, not in a cohesive majority
opinion.
Williams v. Consovoy, 453 F.3d 173, 177–78 (3d Cir. 2006). See also, Randell v.
Johnson, 227 F.3d 300, 300–01 (5th Cir. 2000) (per curiam) (holding that Heck barred a
former prisoner from alleging under § 1983 that he was improperly made to serve two
sentences for the same offense because he was not given credit for his initial prison stay);
MEMORANDUM DECISION AND ORDER - 20

Entzi v. Redmann, 485 F.3d 998, 1003–04 (8th Cir. 2007) (stating that “[a]bsent a
decision of the [Supreme] Court that explicitly overrules what we understand to be the
holding of Heck, . . . we decline to depart from that rule” and holding that the plaintiff’s
claim may be pursued only in an action for habeas corpus relief even though plaintiff had
argued that habeas corpus was no longer available to him on a claim challenging the
length of his imprisonment). Indeed, the Supreme Court has said in a case decided after
Spencer that the issue remains undecided of whether Heck applies when habeas review is
unavailable. See Muhammad v. Close, 540 U.S. 749, 752 (2004) (per curiam) (noting that
“[m]embers of the Court have expressed the view that unavailability of habeas for other
reasons may also dispense with the Heck requirement” but “[t]his case is no occasion to
settle the issue”).
The Court agrees with this second line of cases. The majority opinion in Heck
described Justice Souter’s concurring opinion in that case as “adopt[ing] the common-law
principle that one cannot use the device of a civil tort action to challenge the validity of
an outstanding criminal conviction, but [thinking] it necessary to abandon that principle
in those cases (of which no real-life example comes to mind) involving former state
prisoners who, because they are no longer in custody, cannot bring postconviction
challenges.” Heck, 512 U.S. at 490 n. 10. In response, the majority opinion firmly stated
that “the principle barring collateral attacks – a longstanding and deeply rooted feature of
both the common law and our own jurisprudence – is not rendered inapplicable by the
fortuity that a convicted criminal is no longer incarcerated” and, therefore, could not

MEMORANDUM DECISION AND ORDER - 21

bring a federal habeas claim. 512 U.S. at 490 n. 10. Thus, the Supreme Court in Heck
considered more than the intersection of § 1983 actions with habeas relief. The majority
opinion emphasized “the hoary principle that civil tort actions are not appropriate vehicles
for challenging the validity of outstanding criminal judgments” and stated the Court’s
concern for “finality and consistency” in such cases, where the Court “has generally
declined to expand opportunities for collateral attack.” 512 at 485–86.
This Court is also attuned to the touchstone of caution that must attend any case
such as this, which arguably invites a remodeling of constitutional law precedent from our
Supreme Court. The Court agrees with the First Circuit, in a similar proceeding:
We are mindful that dicta from concurring and dissenting
opinions in a recently decided case, Spencer v. Kemna, 523
U.S. 1 . . ., may cast doubt upon the universality of Heck’s
“favorable termination” requirement. See id. at 19-21, 118
S.Ct. at 989 (Souter, J., concurring); id. at 21-23, 118 S.Ct. at
990 (Ginsberg, J., concurring); id. at 25 n. 8, 118 S.Ct. at 992
n. 8 (Stevens, J., dissenting). The Court, however, has
admonished the lower federal courts to follow its directly
applicable precedent, even if that precedent appears weakened
by pronouncements in its subsequent decisions, and to leave
to the Court “the prerogative of overruling its own decisions.”
Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 2017,
138 L.Ed.2d 391 (1997); see also Rodriguez de Quijas v.
Shearson/American Express, Inc., 490 U.S. 477, 484, 109
S.Ct. 1917, 104 L.Ed.2d 526 (1989). We obey this
admonition.
Figueroa v. Rivera, 147 F.3d 77, 81 n. 3 (1st Cir. 1998).
Accordingly, this Court concludes that the particular nuances of Justice Souter’s
concurrence in Spencer are not directly implicated in this case, and the Court finds no

MEMORANDUM DECISION AND ORDER - 22

exception to the Heck rule drawn from that decision which would require the result
sought by Plaintiffs here.
E.

The Ninth Circuit’s holding in Nonnette is limited to the particular
circumstances of that case, which are not found here.
Some of the circuit courts finding exceptions to the ruling in Heck have cited in

support the case of Nonnette v. Small, 316 F.3d 872 (9th Cir. 2002). Plaintiffs also rely
upon Nonnette, arguing that they were either not incarcerated or not incarcerated long
enough to bring a federal habeas action and, thus, Heck does not apply. See Pls.’ Resp.,
pp. 5-6 (Dkt. 143). The facts of Nonnette, however, are far different than the matter
before the Court here.
In Nonnette, the plaintiff claimed that he had been deprived of “good time” credits
which should have reduced the amount of time he spent in state custody. 316 F.3d at
874–75. Nonnette first exhausted his prison administrative remedies, as required, before
seeking alternative forms of relief. Id. at 874, n. 1. The remedy for such “good time”
deprivation is ordinarily found in a petition for writ of habeas corpus, but Nonnette could
not file a habeas petition because he already had been released from custody. Id. at
875–76. Under those circumstances, the Ninth Circuit held that Heck did not bar
Nonnette from maintaining a § 1983 claim.25 Id. at 876.

25

The issue on appeal was framed as: “Does the unavailability of a remedy in habeas
corpus because of mootness permit Nonnette to maintain a § 1983 action for damages, even
though success in that action would imply the invalidity of the disciplinary proceeding that
caused revocation of his good-time credits?” Id. at 876.
MEMORANDUM DECISION AND ORDER - 23

However, the Nonnette court “emphasize[d]” that its holding “affects only former
prisoners challenging loss of good-time credits, revocation of parole or similar matters.”
316 F.3d at 877 n. 7. In contrast to the Plaintiffs’ claims in this case, Nonnette’s
constitutional claim was not ripe at the time that the issue was being considered by the
prison’s administrative process. It was the decision that resulted in what Nonnette
contended was a short-changing of his good time credits that gave rise to his § 1983
claim, not the underlying conviction that led him to prison in the first place.
A careful reading of the more recent decision in Guerrero v. Gates, 442 F.3d 697
(9th Cir. 2003) also limits the holding in Nonnette to other similar circumstances, such as
former prisoners challenging loss of good-time credits, revocation of parole, or similar
matters. Guerrero involved a former prisoner who, after his release from prison, filed a
§ 1983 challenge to the validity of his conviction. The Ninth Circuit ruled that Heck
barred his § 1983 claims: “Guerrero never challenged his convictions by any means prior
to filing” his § 1983 lawsuit and that “[h]is failure timely to achieve habeas relief is
self-imposed.” Guerrero, 442 F.3d at 705. “[T]hough habeas relief for Guerrero may be
‘impossible as a matter of law,’ we decline to extend the relaxation of Heck’s
requirements.” 442 F.3d at 704–05 (comparing Nonnette, where the plaintiff diligently
challenged administrative revocation of good-time credits, with Cunningham v. Gates,
312 F.3d 1148 (9th Cir. 2002), where the plaintiff failed diligently to challenge an

MEMORANDUM DECISION AND ORDER - 24

underlying criminal conviction).26 The Guerrero court narrowly construed the holding in
Nonnette, emphasizing that “Nonnette was founded on the unfairness of barring a
plaintiff’s potentially legitimate constitutional claims when the individual immediately
pursued relief after the incident giving rise to those claims and could not seek habeas
relief only because of the shortness of his prison sentence.” Guerrero, 442 F.3d at 705
(emphases added). The court emphasized that although “Guerrero is no longer in custody
and thus cannot overturn his prior convictions by means of habeas corpus does not lift
Heck’s bar” and even though exceptions to Heck’s bar may exist for plaintiffs no longer
in custody, “any such exceptions would not apply” in Guerrero’s case. Id. at 704.
Plaintiffs’ claims here are most similar to those of the plaintiff in Guerrero, in that
they seek to challenge (and thereby invalidate) convictions and sentences that have never
been invalidated, or favorably-terminated, as required by Heck. Their claims are not
similar to those described in Nonnette, which are those brought by “former prisoners
challenging loss of good-time credits, revocation of parole or similar matters” who have
timely pursued other available relief. 316 F.3d at 877 n. 7. Unlike the plaintiff in
Nonnette, the plaintiffs here not only made no timely prior challenge, they did not make

26

See also Smith v. Ulbricht, No. CV12-00199-M-DLC, 2013 WL 589628, *1-3
(D.Mont. Feb. 14, 2013) (finding the plaintiff’s request to “expunge and effectively purge any
evidence an arrest ever took place or conviction entered” to be more like Guerrero than Nonnette
and explaining that the plaintiff “has not timely and diligently sought appropriate relief from his
prior convictions” and though habeas relief may be “impossible as a matter of law,” the plaintiff
was not entitled to the relaxation of Heck’s bar).
MEMORANDUM DECISION AND ORDER - 25

any challenge to the constitutionality of the government conduct of which they now
complain.
When considered under the Guerrero decision, decisions from other circuit courts
that have applied Heck despite the unavailability of habeas relief, and against the
majority opinion in Heck, this Court views the holding in Nonnette as limited to the
particular circumstances and distinct facts of that case. Other district courts in the Ninth
Circuit are of the same mind, in analogous circumstances. See Robertson v. Qadri, No. C
06-4624 JF, 2009 WL 150952, *3 (N.D.Cal. Jan. 21, 2009) (explaining that Robertson’s
circumstances are entirely different from Nonnette because “[t]he remedy for
[Robertson’s] allegedly unlawful arrest and conviction is an appropriate motion or appeal
with respect to his criminal conviction” and, thus, the Heck doctrine barred Robertson’s
later § 1983 claim). See also Ra El v. Crain, No. ED CV 05–00174 DDP, 2008 WL
2323524, *12-13 (C.D.Cal. June 4, 2008) (describing Nonnette as a “narrow exception
limited to plaintiffs (1) who are former prisoners challenging loss of good-time credits,
revocation of parole or similar matters, . . . not collaterally challenging underlying
criminal convictions, and (2) who diligently pursued ‘expeditious litigation’ to challenge
those punishments to the extent possible” (citations and internal quotation marks
omitted).27

27

This part of the district court’s decision was affirmed on appeal to the Ninth Circuit,
where the panel explained that: “[t]o the extent that [plaintiff] claims a denial of the Fourteenth
Amendment right to production of exculpatory evidence, summary judgment was proper because
a favorable decision on this claim ‘would necessarily imply the invalidity of his conviction.’”
Ra El v. Crain, No. 08–56122, 399 Fed.Appx. 180, 182, 2010 WL 3937982, *1 (9th Cir. Oct. 5,
MEMORANDUM DECISION AND ORDER - 26

F.

Plaintiffs’ claims for prospective declaratory relief are not claim-precluded.
Alternatively, Defendants argue that Plaintiffs’ constitutional challenge to the

Ordinances is claim-precluded because Plaintiffs were convicted and judgments imposed
for violations of the Ordinances. See Defs.’ Mem., p. 7 (Dkt. 141-3). The Court need not
reach this issue as to the non-prospective relief sought by Plaintiffs. However, because
Heck’s bar does not apply to Plaintiffs’ requests for prospective declaratory relief under
the Declaratory Judgment Act, the Court will now consider whether they are barred by
the doctrine of res judicata.
Res judicata (or claim preclusion) prevents parties from re-litigating causes of
action which were finally decided in a previous suit. Res judicata is an affirmative
defense which, this setting, operates to give preclusive effect to prior state court
judgments. See 28 U.S.C. § 1738 (federal courts must afford full faith and credit to state
judicial proceedings); Allen v. McCurry, 449 U.S. 90 (1980) (federal courts considering
§ 1983 actions must give collateral estoppel preclusive effect to state court judgments);
Migra v. Warren City Sch. Dist. Bd. of Educ., 465 U.S. 75 (1984). Whether a state
judgment has preclusive effect in a federal action is determined by state law governing
claim preclusion. See Migra, 465 U.S. at 83–85.
The doctrine of claim preclusion is recognized as an affirmative defense under
Idaho law. Put simply, “under the principle of res judicata or claim preclusion, judgment
on the merits in a prior proceeding generally bars relitigation between the same parties or

2010) (quoting Heck, 512 U.S. at 487)).
MEMORANDUM DECISION AND ORDER - 27

their privies on the same cause of action.” D.A.R., Inc., v. Sheffer, 997 P.2d 602, 605
(Idaho 2000) (citing Yoakum v. Hartford Fire Ins., 923 P.2d 416 (Idaho 1996)). Claim
preclusion generally bars adjudication not only on the matters offered and received to
defeat the claim, but also as to matters relating to the claim which might have been
litigated in the first suit. Ticor Title Co. v. Stanion, 157 P.3d 613, 620 (Idaho 2007). In
asserting the affirmative defense, the Defendants have the burden of establishing all of the
essential elements by a preponderance of the evidence. Foster v. City of St. Anthony, 841
P.2d 413, 420 (Idaho 1992).
Defendants argue that Plaintiffs’ § 1983 claim is “factually premised upon the
same conduct that led to Plaintiffs’ misdemeanor convictions.” Defs.’ Mem., p. 9 (Dkt.
141-3). Defendants do not explain how Plaintiffs could have requested prospective
declaratory or injunctive relief in their criminal cases. The Court recognizes that, as
described in Preiser v. Rodriguez, 411 U.S. 475 (1975), res judicata principles apply to
civil rights suits brought under § 1983. Id. at 497. See also Huffman v. Pursue, Ltd., 420
U.S. 592, 606, n. 18; Wolff v. McDonnell, 418 U.S. 539, 554, n. 12. Additionally, as
outlined in Preiser, the doctrine of res judicata has been applied to issues previously
decided both in state civil proceedings, e. g., Coogan v. Cincinnati Bar Assn., 431 F.2d
1209, 1211 (6th Cir. 1970), and in state criminal proceedings, e. g., Goss v. Illinois, 312
F.2d 257, 259 (7th Cir. 1963). See also Allen v. McCurry, 449 U.S. 90, 103-04 (1980)
(“[N]othing in the legislative history of § 1983 reveals any purpose to afford less
deference to judgments in state criminal proceedings than to those in state civil

MEMORANDUM DECISION AND ORDER - 28

proceedings.”); Webber v. Giffin, Civil No. 07–1675–KI, 2008 WL 5122702 (D.Or. Dec.
3, 2008) (finding plaintiff barred from pursuing claims, including constitutional violations
under § 1983, where those claims could have been raised in administrative proceeding
addressing plaintiff’s violation of Oregon water laws).
However, even though the “[t]he transactional concept of a claim is broad,” Ticor,
157 P.3d 613, 620 (internal quotation marks omitted), the res judicata doctrine does not
stretch so far as to preclude the claim for prospective declaratory judgment relief that
remains in this case. “What constitutes the same transaction must be determined
pragmatically, giving weight to such considerations as whether the facts are related in
time, space, origin, or motivation, whether they form a convenient trial unit, and whether
their treatment as a unit conforms to the parties’ expectations or business understanding
or usage.” Sadid v. Vailas, 936 F.Supp.2d 1207, 1218 (D.Idaho 2013) (internal quotation
marks omitted and emphasis added) (citing Andrus, 186 P.3d at 633 (quoting the
Restatement (Second) of Judgments § 24 (1982)). Here, Plaintiffs could have raised a
constitutional claim as a defense to their criminal charges. However, claims for
prospective injunctive and declaratory relief – traditionally tried in a civil court -- were
likely unavailable for them, and would not have formed a convenient trial or conformed
to the parties’ expectations about the issues involved in a criminal case.
The Court finds persuasive the decision in Cutler v. Guyer, No. 3:08–CV–371–
BLW, 2010 WL 3735689 (D.Idaho Sept. 14, 2010), in which District Judge B. Lynn
Winmill ruled that claim preclusion principles did not bar a § 1983 claim. Although

MEMORANDUM DECISION AND ORDER - 29

brought under different circumstances, the defendants in Cutler sought to use both claim
and issue preclusion to dismiss a federal civil rights action based on the plaintiff’s prior
state habeas corpus action. “An Idaho habeas corpus action is a unique state law cause of
action based upon the Idaho Constitution and Idaho statute,” Judge Winmill wrote, and
while that action “may involve federal constitutional issues, there is ordinarily no right to
discovery, no availability of jury trial, and no availability of a remedy other than
injunctive relief.” Id. at *10.
Plaintiffs did have a right to a jury trial in their criminal cases.28 However, the
criminal rules and procedures do not permit the extent of discovery allowed in civil cases,
nor provide an avenue to join a civil counterclaim in a criminal proceeding.
In summary, res judicata and claim preclusion principles do not bridge this
proceeding and the plaintiffs’ individual criminal prosecutions. There is simply not a
sufficient common ground between the facts and the nature of the proceedings to permit
such a defense in this case. Additionally, because claim preclusion does not apply, the
Court need not consider Plaintiffs’ argument that Defendants waived this defense by
excluding it from their Answer to the Amended Complaint.

28

See Idaho Code § 19-1902 (“Issues of fact must be tried by jury, unless a trial by jury
be waived in criminal cases by the consent of both parties expressed in open court and entered in
the minutes. In case of misdemeanor the jury may consist of six (6) or any number less than six
(6) upon which the parties may agree in open court. There shall be no right to trial by jury for an
infraction punishable only by a penalty not to exceed one hundred dollars ($100) and no
imprisonment.”).
MEMORANDUM DECISION AND ORDER - 30

G.

Conclusion
On the facts of this case, the favorable termination requirement of Heck is a bar to

Plaintiffs’ § 1983 claims. However, Plaintiffs’ claim for prospective injunctive and
declaratory relief, to the extent that such claim seeks declaratory relief under the
Declaratory Judgment Act, is not barred by Heck. Finally, the criminal cases and the
instant case are not sufficiently identical under a claim preclusion analysis to justify
application of the bar of res judicata to Plaintiffs’ claims for prospective declaratory and
injunctive relief.
A portion of this case remains, but most of the claims have been dismissed. In the
exercise of its discretion, the Court finds that it is appropriate for case management
purposes to require Plaintiffs to file a second amended complaint stating only the claim
that remains. After the Amended Complaint is filed, and Defendants respond in the
ordinary course, the parties shall meet and confer and submit a new stipulated litigation
plan. The stipulated litigation plan is due no later than twenty days after Defendants
respond to the Amended Complaint. At that time, the Court will set a telephonic case
management conference.
ORDER
ACCORDINGLY, IS HEREBY ORDERED that Defendants’ Second Motion
for Summary Judgment (Dkt. 141) is GRANTED, in part, and DENIED, in part, as set
forth in more detail above.

MEMORANDUM DECISION AND ORDER - 31

On or before February 25, 2014, Plaintiffs shall file and Amended Complaint.
After the Amended Complaint is filed, and Defendants respond, the parties shall meet and
confer and submit a new stipulated litigation scheduling plan. The stipulated litigation
plan is due no later than 20 days after Defendants respond to the Amended Complaint.
DATED: January 27, 2014

Honorable Ronald E. Bush
U. S. Magistrate Judge

MEMORANDUM DECISION AND ORDER - 32