Schiro v. Clark et al

Filing 184

ORDER - # 172 Motion to Dismiss is GRANTED. FURTHER ORD ## 173 , 174 , 175 Motions in Limine are DENIED as moot. FURTHER ORD Clerk shall enter judgment and close this case. Signed by Judge Robert C. Jones on 2/2/2015. (Copies have been distributed pursuant to the NEF - DRM)

1
2
3
UNITED STATES DISTRICT COURT

4

DISTRICT OF NEVADA

5
6

_____________________________________

7

KENNETH J. SCHIRO,

8

Plaintiff,

9
10
11

vs.
STEPHEN CLARK et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

3:10-cv-00203-RCJ-VPC
ORDER

12
13

One claim remains for trial in this prisoner civil rights case brought pursuant to 42 U.S.C.

14

§ 1983. That claim is based on an alleged violation of Plaintiff Kenneth Schiro’s Fourteenth

15

Amendment due process rights at a disciplinary hearing that resulted in eighteen months of

16

segregation, the loss of 300 days of statutory good time credits, and restitution. The remaining

17

Defendant, Stephen Clark, has moved to dismiss. He has also filed three motions in limine.

18

The Court grants the motion to dismiss and denies the motions in limine as moot.

19

Whether a Fourteenth Amendment violation occurred has now been finally adjudicated against

20

Plaintiff in the state courts, where he brought a parallel habeas corpus proceeding concerning,

21

inter alia, the same Fourteenth Amendment issue that remains for trial in the present case. (See

22

Order, July 9, 2014, ECF No. 172-4; Order of Affirmance, Nov. 13, 2014, ECF No. 172-6). The

23
24

1 of 4

1

issue is therefore precluded from relitigation here via § 1983 under common-law rules of

2

preclusion and the Full Faith and Credit Act, 28 U.S.C. § 1738, even assuming arguendo that

3

Plaintiff has no route to federal habeas corpus relief. See Allen v. McCurry, 449 U.S. 90, 96–105

4

(1980). The Court grants the motion to dismiss for this reason, although the motion is untimely

5

under the Scheduling Order. There is good cause for Defendant to bring the late motion, because

6

the defense of issue preclusion did not become available until the state trial court adjudicated the

7

Fourteenth Amendment issue in Plaintiff’s state habeas corpus petition on July 9, 2014.

8

Although this Court previously permitted the Fourteenth Amendment claim to proceed past the

9

pleading and summary judgment stages, the state courts have now finally adjudicated the issue

10

against Plaintiff, and without the ability to prove a Fourteenth Amendment violation, there

11

remains no claim on which Plaintiff can succeed at trial.

12

The Court also dismisses based on Defendant’s argument that Heck v. Humphrey, 512

13

U.S. 477 (1994) bars the case. The Court need not rely on Heck to dismiss based on issue

14

preclusion under Allen, but Heck provides an additional basis for dismissal. Heck was not about

15

issue preclusion. Rather, the Heck Court ruled that § 1983 was not exempt from a long-standing

16

(“hoary”) common law doctrine—existing separate from the doctrines of collateral estoppel and

17

full faith and credit at issue in Allen—that “civil tort actions are not appropriate vehicles for

18

challenging the validity of outstanding criminal judgments.” Heck, 512 U.S. at 486. Under Heck,

19

even if a particular issue is not precluded under Allen, if the determination of the issue in a

20

plaintiff’s favor would imply the invalidity of a conviction or sentence, it is not cognizable as the

21

basis of any later civil action (including under § 1983), except in the nature of habeas corpus.

22
23
24

2 of 4

1

The Heck rule applies not only to criminal convictions and sentences, but also to prison

2

disciplinary hearings resulting in the loss of good time credits, as here. See Ramirez v. Galaza,

3

334, F.3d 850, 856 (9th Cir. 2003).
Dispositive motions were due on May 2, 2012, and although a Court may, and should,

4
5

consider challenges to subject matter jurisdiction at any time, Mansfield, C. & L.M.R. Co. v.

6

Swan, 111 U.S. 379, 382–84 (1884), the Heck rule is not jurisdictional, see Okoro v. Bohman,

7

164 F.3d 1059, 1061 (7th Cir. 1999). Accordingly, a Heck defense can be waived. Carr v.

8

O’Leary, 167 F.3d 1124, 1126–27 (7th Cir. 1999); see also, e.g., In re Cellular 101, Inc., 539

9

F.3d 1150, 1155 (9th Cir. 2008) (citing Fed. R. Civ. P. 8(c)). The Court is unaware of any split

10

of authority, and it agrees with the Seventh Circuit’s resolution of the issue. Defendants did not

11

plead Heck as an affirmative defense, but a defendant may preserve an affirmative defense by

12

raising it in a motion, so long as any delay does not prejudice a plaintiff. Owens v. Kaiser Found.

13

Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001). Despite the delay in raising the Heck issue,

14

the Court can find no prejudice to Plaintiff in this case, both because the case is independently

15

unviable under Allen and because the Heck defense itself disposes of the case completely as

16

opposed to simply making it more difficult for Plaintiff to succeed on a claim that might

17

potentially be viable, e.g., because of an inability to retrieve evidence.

18

///

19

///

20

///

21

///

22
23
24

3 of 4

CONCLUSION

1
2

IT IS HEREBY ORDERED that the Motion to Dismiss (ECF No. 172) is GRANTED.

3

IT IS FURTHER ORDERED that the Motions in Limine (ECF Nos. 173, 174, 175) are

4

DENIED as moot.

5

IT IS FURTHER ORDERED that the Clerk shall enter judgment and close the case.

6

IT IS SO ORDERED.

7

Dated this 2nd day of February, 2015.

8
9
10

_____________________________________
ROBERT C. JONES
United States District Judge

11
12
13
14
15
16
17
18
19
20
21
22
23
24

4 of 4