Ciria v. Rubino et al, No. 3:2007cv04770 - Document 23 (N.D. Cal. 2008)

Court Description: ORDER GRANTING 13 MOTION TO DISMISS; DENYING 22 LEAVE TO FILE FIRST AMENDED COMPLAINT. Signed by Judge Maxine M. Chesney on September 17, 2008. (mmcsec, COURT STAFF) (Filed on 9/17/2008)
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Ciria v. Rubino et al Doc. 23 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 For the Northern District of California United States District Court 10 11 12 13 14 15 ) ) ) Plaintiff, ) ) v. ) ) NICHOLAS J. RUBINO, et al., ) ) Defendants. ______________________________ ) JOAQUIN CIRIA, No. C 07-4770 MMC (PR) ORDER GRANTING MOTION TO DISMISS; DENYING LEAVE TO FILE FIRST AMENDED COMPLAINT (Docket Nos. 13 & 22) On September 17, 2007, plaintiff, a California prisoner proceeding pro se, filed the 16 above-titled civil rights action under 42 U.S.C. § 1983. On October 12, 2007, after 17 reviewing the complaint, the Honorable Martin J. Jenkins found plaintiff had stated 18 cognizable claims alleging defendants, all San Francisco police officers, violated plaintiff’s 19 constitutional rights by withholding, prior to plaintiff’s criminal trial, exculpatory evidence 20 of plaintiff’s innocence. In the same order, Judge Jenkins directed defendants to file a 21 dispositive motion or, in the alternative, a notice indicating defendants are of the opinion 22 such a motion is not warranted. 23 On January 4, 2008, defendants filed a motion to dismiss the complaint pursuant to 24 Rule 12(b)(6) of the Federal Rules of Civil Procedure, on the ground that plaintiff’s claims 25 fail to state a claim upon which relief can be granted.1 Plaintiff has filed opposition to the 26 motion to dismiss, and defendants have filed a reply. 27 28 1 The motion was filed by the City and County of San Francisco (“City”). The City was not named as a defendant to this action but has appeared on behalf of the defendants in their official capacities. (Mot. Dismiss at 4:5-9.) 1 2 On April 7, 2008, the above-titled action was reassigned to the undersigned. For the reasons stated below, the Court will grant defendants’ motion to dismiss. FACTUAL AND PROCEDURAL BACKGROUND 3 4 5 6 In his complaint and the declaration attached thereto, plaintiff makes the following allegations: In December 1989, when leaving the Amazon Hotel in San Francisco, plaintiff was 7 arrested by undercover police officers. He was taken to a police station, where he was 8 questioned about drugs and contraband found in the hotel. Plaintiff told defendant Officer 9 Rubino (“Rubino”) that plaintiff didn’t know anything about the drugs. Rubino subsequently 10 released plaintiff, but told plaintiff he would get him sooner or later. When plaintiff returned 11 to his car, a red 1986 Firebird, he discovered certain items were missing from the car. For 12 several months following his release, plaintiff was followed by undercover police officers. 13 Consequently, to avoid being followed, plaintiff, at the end of January 1990, traded his red 14 Firebird for a brown truck belonging to a friend. (Compl. ¶¶ 10-18.) 15 On March 25, 1990, Felix Bastarrica (“Bastarrica”) was shot and killed. Plaintiff was 16 identified as a possible suspect. On April 13, 1990, plaintiff, accompanied by his attorney, 17 came to the police station, where he was questioned about his whereabouts on the night of 18 the shooting. Plaintiff explained that on the night in question he had played video games 19 with his stepson at a video arcade and then stopped at Galan’s Bar, where he got into a fight 20 with an individual named Roberto and then went home. On April 19, 1990, Rubino arrested 21 plaintiff for the murder of Bastarrica. Plaintiff was taken to the police station and 22 interrogated by defendants Officer Crowley (“Crowley”) and Officer Gerrans (“Gerrans”). 23 During the interrogation, the officers acknowledged that on the previous night they had gone 24 to Galan’s Bar to verify plaintiff’s story about the night of the shooting. Additionally, the 25 officers questioned plaintiff about the type of car he owned, specifically, whether he owned a 26 red vehicle. (Id. ¶¶ 22-30.) 27 28 In 1991, in the Superior Court of San Francisco County, plaintiff was convicted of Bastarrica’s murder. In December 2003, plaintiff became aware that prosecutors and their 2 1 investigating officers have a legal obligation to disclose all exculpatory evidence to a 2 criminal defendant before trial. (Id. ¶ 32.) With the assistance of another inmate who 3 reviewed the legal papers, trial transcripts and police reports from plaintiff’s criminal 4 proceedings, plaintiff realized that defendants should have disclosed the following 5 exculpatory evidence to him prior to his criminal trial: (1) surveillance records/reports 6 prepared by defendants documenting plaintiff’s movements and whereabouts from December 7 1989 to April 19, 1990, which records/reports, plaintiff alleges, contain exculpatory evidence 8 with respect to plaintiff’s whereabouts at the time of the shooting; (2) witness statements 9 collected by Crowley and Gerrans at Galan’s Bar on April 18, 1990, which statements, 10 plaintiff alleges, will confirm that plaintiff had a jeri curl hairstyle and was wearing a 11 distinctive red and black jacket on the night of the shooting; (3) information as to how 12 defendants knew plaintiff had a jeri curl on the night of the shooting, which information, 13 plaintiff alleges, led them to show a mug shot of plaintiff with a jeri curl to an eyewitness 14 three days after the shooting; (4) evidence that the officers knew plaintiff had a jeri curl on 15 the night of the shooting, which evidence, plaintiff alleges, calls into question whether the 16 lineup conducted on April 26, 1990 was unduly suggestive because it included all black 17 males with afros; (5) evidence that Crowley and Gerrans obtained information about 18 plaintiff’s ownership of the red Firebird from someone other than plaintiff. (Id. ¶¶ 33-39.) 19 By the instant action, plaintiff claims his constitutional rights were violated by 20 defendants’ failure to disclose the above evidence. Plaintiff seeks both declaratory and 21 injunctive relief. In particular, he seeks a declaratory judgment that defendants’ failure to 22 disclose and preserve the evidence was intentional and violated his constitutional rights to 23 present a defense, as guaranteed by the Sixth Amendment, and to a fair trial, as guaranteed 24 by the Fourteenth Amendment. He also seeks an injunction ordering defendants or their 25 representatives to locate, preserve, and provide plaintiff and the Court with defendants’ 26 “files, records, reports, logs, tape recordings and/or any other documents, papers or writing 27 instrument” pertaining to plaintiff’s state criminal proceedings, and to provide an explanation 28 with respect to any items that have been lost or destroyed. (Compl. at 13-14.) 3 DISCUSSION 1 2 A. Standard of Review A motion to dismiss for failure to state a claim under Rule 12(b)(6) should be granted 3 4 if the complaint does not proffer “enough facts to state a claim for relief that is plausible on 5 its face.” Bell Atlantic Corp v Twombly, 127 S Ct 1955, 1974 (2007). The court “must 6 accept as true all of the factual allegations contained in the complaint,” Erickson v. Pardus, 7 127 S. Ct. 2197, 2200 (2007), but need not accept as true allegations that are legal 8 conclusions, unwarranted deductions of fact or unreasonable inferences. See Sprewell v. 9 Golden State Warriors, 266 F.3d 979, 988, amended, 275 F.3d 1187 (9th Cir. 2001). 10 Dismissal can be based on the lack of a cognizable legal theory or the absence of sufficient 11 facts alleged under a cognizable legal theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 12 696, 699 (9th Cir. 1990). 13 In considering a motion to dismiss, the court must construe the complaint in the light 14 most favorable to the plaintiff and accept all factual allegations as true. See Cahill v. Liberty 15 Mut. Ins. Co., 80 F.3d 336, 337-38 (9th Cir. 1996). Federal courts are particularly liberal in 16 construing allegations made in pro se civil rights complaints. See Thompson v. Davis, 295 17 F.3d 890, 895 (9th Cir. 2002). In ruling on a Rule 12(b)(6) motion, the court may not 18 consider any material outside the complaint but may consider exhibits attached thereto. See 19 Arpin v. Santa Clara Valley Transportation Agency, 261 F.3d 912, 925 (9th Cir. 2001); Fed. 20 R. Civ. P. 10(c) (treating exhibits attached to complaint as part of complaint for purposes of 21 ruling on 12(b)(6) motion). 22 B. Analysis 23 1. 24 As noted, plaintiff seeks declaratory and injunctive relief for the alleged violation of Heck v. Humphrey 25 his constitutional right to be provided, prior to trial, with evidence in possession of the 26 prosecution and/or its investigating officers relevant to his defense. Plaintiff brings his claim 27 under Brady v. Maryland, 373 U.S. 83 (1963), wherein the Supreme Court held “the 28 suppression by the prosecution of evidence favorable to an accused upon request violates due 4 1 process where the evidence is material either to guilt or to punishment, irrespective of the 2 good faith or bad faith of the prosecution.” Id. at 87. Since Brady, the Supreme Court has 3 made clear that the duty to disclose such evidence applies even when there has been no 4 request by the accused, see United States v. Agurs, 427 U.S. 97, 107 (1976), and that the duty 5 encompasses impeachment evidence as well as exculpatory evidence, see United States v. 6 Bagley, 473 U.S. 667, 676 (1985). Under Brady, evidence is material “if there is a 7 reasonable probability that, had the evidence been disclosed to the defense, the result of the 8 proceeding would have been different. A ‘reasonable probability’ is a probability sufficient 9 to undermine confidence in the outcome.” Id. at 682. In the criminal context, a defendant 10 establishes a Brady violation whenever he can show that favorable evidence material to his 11 case was not disclosed to the defense, without respect to whether the prosecution 12 intentionally withheld such evidence. See Brady, 373 U.S. at 87. Upon the showing of a 13 Brady violation, the defendant is entitled to a new trial. See Strickler v. Greene, 527 U.S. 14 263, 266 (1999); Brady, 373 U.S. at 87-88. 15 In the civil rights context, a plaintiff claiming a Brady violation must show he was 16 deprived of favorable evidence material to his case; additionally, in order to prevail on a 17 § 1983 claim brought against investigating officers, a plaintiff must establish that the officers 18 deliberately withheld exculpatory evidence from the prosecutor. See Tennison v. City and 19 County of San Francisco, Nos. C 04-0574 CW & C 04-1463 CW, 2006 WL 733470, *27-29 20 (N.D. Cal. Mar. 22, 2006). 21 In the instant action, defendants move to dismiss the complaint under Heck v. 22 Humphrey, 512 U.S. 477 (1994). Heck holds that in order to state a claim for damages for an 23 allegedly unconstitutional conviction or term of imprisonment, or for other harm caused by 24 actions whose unlawfulness would render a conviction or sentence invalid, a plaintiff 25 asserting a violation of 42 U.S.C. § 1983 must prove that the conviction or sentence has been 26 reversed or declared invalid. Id. at 486-87. If success in the § 1983 lawsuit would 27 necessarily demonstrate the invalidity of the confinement or its duration, the § 1983 lawsuit 28 is barred, irrespective of whether the plaintiff seeks monetary damages or equitable relief. 5 1 Wilkinson v. Dotson, 544 U.S. 74, 81 (2005). A complaint that is barred under Heck must be 2 dismissed. Heck, 512 U.S. at 487. 3 It is undisputed herein that plaintiff’s conviction has not been reversed or otherwise 4 declared invalid. Thus, defendants argue, the current action is barred under Heck because a 5 determination by the Court that plaintiff is entitled to relief under § 1983 as a result of 6 defendants’ failure to disclose favorable evidence material to plaintiff’s case necessarily 7 would imply the invalidity of plaintiff’s conviction. In support of their argument, defendants 8 rely on the Ninth Circuit case of Ybarra v. Reno Thunderbird Mobile Home Village, 723 9 F.2d 675 (9th Cir. 1984), which case was decided prior to the Supreme Court’s decision in 10 Heck. In Ybarra, the plaintiff, a state prisoner serving a sentence of life imprisonment for 11 first degree murder, brought a suit for damages and declaratory relief under § 1983, alleging 12 therein that the prosecutor, along with the District Attorney and their mutual employer, the 13 County, had destroyed or permitted the destruction of exculpatory evidence needed for his 14 defense to the murder charge. Id. at 677. As here, the plaintiff claimed the failure to 15 preserve exculpatory material evidence constituted a Brady violation. Id. at 678. 16 After finding the plaintiff could not prevail on his claims for damages because the 17 prosecutor was entitled to absolute immunity and no liability had been established as to the 18 District Attorney and the County, see id. at 678-81, the Ninth Circuit addressed the plaintiff’s 19 claim that he was entitled to a declaratory judgment that he had suffered a constitutional 20 violation under Brady. Acknowledging that declaratory relief is an available remedy under 21 § 1983, id. at 681, the Ninth Circuit nevertheless concluded the plaintiff’s exclusive remedy, 22 for his claim that his right to a fair trial had been violated under Brady, was by way of habeas 23 corpus. Specifically, the Ninth Circuit held: 24 25 26 It is clear that the basis of Ybarra’s claim is a challenge to the constitutionality of his conviction; in order to prevail on this claim, he must collaterally void his state court conviction. Although he does not specifically request release, the finding of such declaratory relief in his favor would show that release was required. 27 Id. at 682 (citations omitted). In support of its conclusion, the Ninth Circuit cited to Preiser 28 v. Rodriguez, 411 U.S. 475, 500 (1973), in which the Supreme Court held that habeas corpus 6 1 is the sole remedy when the relief sought is a determination that the prisoner is entitled to 2 immediate release. See id.. Here, defendants argue that, under Ybarra, plaintiff’s claims for declaratory and 3 4 injunctive relief are barred by Heck. As noted, Ybarra was decided prior to Heck. 5 Defendants cite no Ninth Circuit authority, and the Court is aware of none, that has 6 addressed, subsequent to Heck, the question of whether a plaintiff whose conviction has not 7 been reversed is barred from bringing a § 1983 claim under Brady for damages or equitable 8 relief. Defendants argue that the rationale of Heck nonetheless is consistent with the 9 reasoning of Ybarra, and that Heck does not call into question the conclusion reached by the 10 Ninth Circuit. Defendants further point out that a number of federal courts have found the 11 Heck doctrine applicable to Brady claims. See Amaker v. Weiner, 179 F.3d 48, 51 (2d Cir. 12 1999); Moore v. Novak, 146 F.3d 531, 536 (8th Cir. 1998); Hamilton v. Lyons, 74 F.3d 99, 13 103 (5th Cir.1996); Robinson v. Rudenstein, No. 07-3160, 2008 WL 623594, *5 (E.D. Pa. 14 Mar. 6, 2008); Gravely v. Speranza, 408 F. Supp. 2d 185, 189 (D.N.J. 2006); Strohl v. 15 Lifequest Nursing Center, No. Civ. A. 01- 2722, 2002 WL 188571, at *3 (E.D. Pa. Feb. 4, 16 2002). 17 In opposition, plaintiff argues his claim is not barred because, plaintiff asserts, the 18 relief he seeks does not necessarily demonstrate the invalidity of his conviction. In support 19 of his argument, plaintiff relies on Osborne v. District Attorney’s Office, 423 F.3d 1050 (9th 20 Cir. 2005) (“Osborne I”), in which the Ninth Circuit held a prisoner’s § 1983 claim seeking 21 post-conviction access to DNA evidence for biological testing is not barred under Heck. In 22 Osborne I, the plaintiff, a prisoner serving a sentence for state court convictions of kidnaping 23 and sexual assault, filed a § 1983 action to compel the state to release DNA evidence used to 24 convict him. Id. at 1051. Without reaching the question of whether there exists a 25 constitutional right of post-conviction access to DNA evidence, the Ninth Circuit found the 26 plaintiff’s claim was not barred under Heck because success in the § 1983 action would not 27 “necessarily demonstrate the invalidity of confinement or its duration.” Id. at 1054 (internal 28 quotation and citation omitted). Specifically, the Ninth Circuit found the invalidity of the 7 1 plaintiff’s conviction or confinement would not be demonstrated by the requested relief 2 because: (1) success on the plaintiff’s claim “would yield only access to the evidence – 3 nothing more”; (2) the analysis of the DNA “[might] prove exculpatory, inculpatory, or 4 inconclusive; thus there is a significant chance that the results [would] either confirm or have 5 no effect on the validity of Osborne’s confinement”; and (3) “even if the results [were to] 6 exonerate Osborne, a separate action – alleging a separate constitutional violation altogether 7 – would be required to overturn his conviction.” Id. at 1054-55 (emphasis in original). 8 Subsequently, in Osborne v. District Attorney’s Office, 521 F.3d 1118 (9th Cir. 2008) 9 (“Osborne II”), petition for cert. filed, 77 U.S.L.W. 2009 (U.S. June 27, 2008) (No. 08-6), the 10 Ninth Circuit found there exists a limited constitutional right to post-conviction access to 11 DNA for biological testing that was not available at the time of the prisoner’s trial. Id. at 12 1122. In so holding, the Ninth Circuit reasoned as follows: 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 . . . Osborne’s right to due process of law prohibits the State from denying him reasonable access to biological evidence for the purpose of further DNA testing, where that biological evidence was used to secure his conviction, the DNA testing is to be conducted using methods that were unavailable at the time of trial and are far more precise than the methods that were then available, such methods are capable of conclusively determining whether Osborne is the source of the genetic material, the testing can be conducted without cost or prejudice to the State, and the evidence is material to available forms of postconviction relief. In so holding, however, we do not purport to set the standards by which all future cases must be judged. We are presented with a certain set of circumstances presenting a meritorious case for disclosure, and our analysis and holding are addressed to those circumstances only. Id. at 1141-42 (footnote omitted). Additionally, the Ninth Circuit made clear that the plaintiff’s claim of entitlement to DNA evidence was distinct from any claim he might bring in habeas corpus based on the results of the DNA analysis, which claim would assert the separate constitutional violation that he had been convicted of a crime of which he was actually innocent. See id. at 1131. Based on the foregoing, the Court finds unpersuasive plaintiff’s assertion that Osborne I stands for the proposition that Heck is inapplicable to all § 1983 claims seeking the remedy of production of evidence. As discussed above, Osborne I determined that the plaintiff’s 8 1 § 1983 claim therein was viable not only because the plaintiff had merely requested access to 2 DNA evidence and not release from confinement, but also because the plaintiff’s claim that 3 he was constitutionally entitled to such evidence was altogether separate from any claim the 4 plaintiff might assert in a habeas corpus action challenging the validity of his conviction. 5 Consequently, as the Ninth Circuit held, a determination in the § 1983 action that the 6 plaintiff’s constitutional right of access to post-conviction DNA evidence had been violated 7 would not necessarily imply the invalidity of the plaintiff’s conviction. Moreover, the 8 plaintiff’s success in such action would not necessarily imply the invalidity of his conviction, 9 because the DNA analysis might not prove to be exculpatory, but, rather, inculpatory or 10 inconclusive. 11 Here, by contrast, a determination that plaintiff is entitled to declaratory and/or 12 injunctive relief because his constitutional right to Brady evidence was violated would 13 necessarily demonstrate the invalidity of plaintiff’s conviction. Specifically, a finding herein 14 that favorable evidence material to plaintiff’s case was not disclosed to the defense is the 15 same finding that, in the criminal context, would require a determination that plaintiff is 16 entitled to a new trial. See Ybarra, 723 F.3d at 682. Consequently, even though plaintiff is 17 not, by the instant action, seeking release, his success herein would necessarily demonstrate 18 the invalidity of plaintiff’s confinement or its duration. Further, the favorable material 19 evidence to which plaintiff seeks access would, as alleged by plaintiff in his complaint, 20 necessarily prove that plaintiff’s rights under Brady had been violated. Lastly, the Court 21 finds, based on the allegations in the complaint, that plaintiff has no constitutional right to 22 production of the evidence he seeks other than the right established in Brady. See Thames v. 23 Los Angeles Police Dept., No. CV 08-1044 RGK (MLG), 2008 WL 2641361, *4 (C.D. Cal. 24 June. 30, 2008) (finding plaintiff had no due process right to access police investigative 25 records absent showing records favorable and material under Brady). Consequently, plaintiff 26 cannot avoid the Heck bar by asserting an independent right to production of evidence where 27 such claim does not necessitate a determination that his Brady rights were violated. 28 For the foregoing reasons, the Court concludes the instant action is barred under Heck. 9 1 Accordingly, defendants motion to dismiss will be granted.2 2 2. 3 Defendants argue, in the alternative, that if plaintiff’s complaint is not barred under 4 5 Statute of Limitations Heck, the claims are barred by the applicable statute of limitations. Section 1983 does not contain its own limitations period. See Elliott v. City of Union 6 City, 25 F.3d 800, 802 (9th Cir. 1994). Rather, the appropriate period is that of the forum 7 state’s statute of limitations for personal injury torts. See Wilson v. Garcia, 471 U.S. 261, 8 276 (1985). In the event the state has multiple statutes of limitations for different torts, 9 federal courts considering claims brought pursuant to § 1983 borrow the general or residual 10 statute for personal injury actions. See Silva v. Crain, 169 F.3d 608, 610 (9th Cir. 1999). 11 Effective January 1, 2003, California’s general residual statute of limitations for personal 12 injury actions is two years; prior to that date, the limitations period for such actions was one 13 year. See Maldonado v. Harris, 370 F.3d 945, 954-55 (9th Cir. 2004). Additionally, a 14 federal court must give effect to a state’s tolling provisions. See Hardin v. Straub, 490 U.S. 15 536, 543-44 (1989). In California, incarceration of the plaintiff is a disability that tolls the 16 statute for a maximum of two years. See Cal. Civ. Proc. Code § 352.1. 17 Under federal law a cause of action accrues when the plaintiff possesses sufficient 18 facts about the harm done to him such that reasonable inquiry will reveal his cause of action. 19 See United States v. Kubrick, 444 U.S. 111, 122-24 (1979). A plaintiff must be diligent in 20 discovering the critical facts of his injury, however. Thus, a plaintiff who did not actually 21 know that his rights were violated will be barred from bringing his claim after the expiration 22 of the statutory limitations period, if he should have discovered such violation by the exercise 23 of due diligence. Bibeau v. Pacific Northwest Research Found., 188 F.3d 1105, 1108 (9th 24 Cir. 1999), amended, 208 F.3d 831 (9th Cir. 2000). Once a plaintiff knows he has been 25 26 2 In his opposition, plaintiff states that in order to avoid the Heck bar, he is willing to strike his claim for a declaratory judgment and go forward only with his claim for injunctive 27 relief. As discussed above, however, plaintiff’s § 1983 claim is barred regardless of the relief sought. Consequently, such leave to amend will be denied. 28 10 1 injured and who inflicted the injury, he is on inquiry notice to determine the readily- 2 discoverable details of his claims. Nasim v. Warden, Md. House of Correction, 64 F.3d 951, 3 955 (4th Cir. 1995). 4 Here, defendants argue, plaintiff’s claims accrued at the time of plaintiff’s trial in 5 1991, because at that time the facts either were known to plaintiff or his attorney or should 6 have been discovered through the exercise of due diligence. In opposition, plaintiff asserts 7 he did not possess sufficient facts to discover the injuries he suffered and who caused them 8 until May 2006, when the inmate reviewing plaintiff’s legal files informed him that 9 defendants had withheld exculpatory evidence. He further argues that no prior knowledge of 10 such injuries can be imputed to him through his trial attorney because his attorney likewise 11 was not aware of the withheld evidence. 12 At the outset, the Court finds that where a plaintiff is represented at the time an injury 13 occurs, his counsel’s knowledge is imputed to him for purposes of the statute of limitations. 14 See Veal v. Geraci, 23 F.3d 722, 725 (2d Cir. 1994) (holding counsel’s knowledge of facts 15 with respect to allegedly tainted lineup imputed to plaintiff); see also Temple v. Adams, 16 No. CV-F-04-6716 OWW DLB (E.D. Cal. Aug. 23, 2006) (finding plaintiff’s attorney’s 17 failure to pursue reasonable investigation that would have led to discovery of extent of 18 plaintiff’s injury did not mitigate plaintiff’s failure to timely file § 1983 claim). 19 Consequently, in addressing each of plaintiff’s claims, the Court will consider whether either 20 plaintiff or his attorney knew or should have discovered the critical facts with respect to 21 plaintiff’s injuries. 22 a. Surveillance Records/Reports 23 24 25 26 27 28 Plaintiff seeks records and/or reports maintained by defendants with respect to their undercover surveillance of plaintiff from December 1989 to April 19, 1990. According to plaintiff, such records/reports contain exonerating evidence that was never introduced at plaintiff’s trial on the issue of plaintiff’s whereabouts at the time of the shooting. Specifically, plaintiff asserts, the records/reports would show plaintiff had a jeri curl hairstyle 11 1 on the night of the shooting, that plaintiff did not leave his house after 8:30 p.m. on the night 2 of the shooting, and that plaintiff was wearing a distinctive red and black jacket on the night 3 of the shooting. 4 Plaintiff claims he could not have discovered the existence of such records and/or 5 reports prior to May 2006, when he learned defendants were required to record their 6 surveillance activities. Plaintiff states, however, that he knew, during the surveillance period, 7 both that he was being followed and by whom he was being followed. (See Compl. ¶ 17.) 8 Based on such knowledge, plaintiff and/or his attorney should have discovered, through the 9 exercise of due diligence and reasonable inquiry, that police procedures required defendants 10 to keep records and/or reports of their surveillance activities. Had they done so, they would 11 have been able to determine whether any records and/or reports had been withheld from the 12 defense. Accordingly, plaintiff’s claim that defendants withheld such evidence accrued at the 13 latest at the time of plaintiff’s state criminal proceedings in 1991. 14 b. Witness Statements 15 16 17 18 19 20 Plaintiff seeks access to witness statements collected by Crowley and Gerrans at Galan’s Bar on April 18, 1990. Plaintiff asserts he could not have discovered the existence of such statements prior to May 2006, when he was advised by the inmate assisting him that Crowley and Gerrans would have taken notes of their conversations with the witnesses. Plaintiff does not allege, however, that he was unaware that Crowley and Gerrans had 21 interviewed people at Galan’s Bar. Rather, plaintiff states in his complaint that when he was 22 arrested on April 19, 1990, he “informed the detectives that he had seen them the night 23 before, April 18, at Galan’s Bar talking with patrons.” (Compl. ¶ 29.) Based on such 24 knowledge, plaintiff and/or his attorney should have discovered, through the exercise of due 25 diligence and reasonable inquiry, that Crowley and Gerrans took notes of their conversations 26 with prospective witnesses at Galan’s Bar. Had they done so, they would have been able to 27 determine that such notes had been withheld from the defense. Accordingly, plaintiff’s claim 28 that defendants withheld such evidence accrued at the latest at the time of plaintiff’s state 12 1 criminal proceedings in 1991. 2 c. 3 4 5 6 7 8 9 10 11 12 Plaintiff’s Hairstyle Plaintiff claims defendants withheld evidence that would have shown how they knew plaintiff had a jeri curl hairstyle on the night of the shooting. Specifically, plaintiff asserts, defendants, three days after the shooting, showed a mug shot of plaintiff with a jeri curl to an eyewitness who identified plaintiff from the photograph, even though defendants also had a mug shot of plaintiff with an afro hairstyle. Plaintiff does not allege he was unaware of the contents of the photograph the eyewitness was shown; rather, his claimed injury is that defendants did not disclose how they knew plaintiff had a jeri curl on the night of the shooting. Plaintiff knew, however, that he had a jeri curl on the night of the shooting, that the mug shot displayed to the eyewitness showed plaintiff with a jeri curl, and that the police also had a mug shot of him with an afro. Based on such knowledge, plaintiff and/or his 13 attorney should have discovered, through the exercise of due diligence and reasonable 14 inquiry, that the police had information about plaintiff’s hairstyle on the night of the shooting 15 and how they came to obtain such information. Accordingly, plaintiff’s claim that 16 defendants withheld evidence that would have shown how they knew plaintiff had a jeri curl 17 on the night of the shooting accrued at the latest at the time of plaintiff’s state criminal 18 proceedings in 1991. 19 20 d. The Lineup 21 On April 26, 1990, a week after plaintiff was arrested, defendants conducted a 22 physical lineup of six black males, including plaintiff, all with afros. Plaintiff claims 23 defendants, in conducting the lineup, withheld evidence indicating they knew plaintiff had a 24 jeri curl on the night of the shooting. Plaintiff states he did not learn that defendants had 25 withheld such evidence until May 2006, when he reviewed his legal files. At the time of the 26 lineup, however, plaintiff knew that all of the men in the lineup had afros, that plaintiff had a 27 jeri curl on the night of the shooting and, as discussed above, that three days after the 28 shooting defendants had shown an eyewitness a mug shot of plaintiff with a jeri curl. Based 13 1 on such knowledge, plaintiff and/or his attorney should have discovered, through the exercise 2 of due diligence and reasonable inquiry, that defendants knew plaintiff had a jeri curl on the 3 night of the shooting and withheld such evidence from the defense when conducting the 4 lineup. Accordingly, plaintiff’s claim that defendants withheld such evidence accrued at the 5 latest at the time of plaintiff’s state criminal proceedings in 1991. 6 7 8 9 10 11 12 e. Plaintiff’s Firebird Plaintiff claims defendants Crowley and Gerrans withheld evidence that they knew plaintiff owned a red Firebird prior to the shooting. Specifically, plaintiff claims Crowley and Gerrans knew plaintiff had owned the Firebird even they did not start investigating plaintiff until more than two months after he had sold the Firebird. Plaintiff states he did not discover the injury resulting from defendants’ conduct until he reviewed his legal files in May 2006. Plaintiff knew, however, as early as April 19, 1990, that Crowley and Gerrans 13 might have information about plaintiff’s ownership of the red Firebird; at that time, plaintiff 14 was interviewed by Crowley and Gerrans and they questioned him about his ownership of a 15 red vehicle. (See Compl. ¶ 30.) Based on such knowledge, plaintiff and/or his attorney 16 should have discovered, through the exercise of due diligence and reasonable inquiry, that 17 defendants had learned about plaintiff’s ownership of the red Firebird from sources other 18 than plaintiff and how they came to obtain such information. Accordingly, plaintiff’s claim 19 that defendants withheld information with respect to how they knew about plaintiff’s Firebird 20 accrued at the latest at the time of plaintiff’s state criminal proceedings in 1991. 21 22 f. Summary 23 In sum, plaintiff and/or his attorney either knew, or in the exercise of due diligence 24 and reasonable inquiry should have discovered, all of the injuries alleged herein and their 25 causes no later than the conclusion of his state criminal proceedings in 1991. Consequently, 26 plaintiff’s § 1983 claims accrued, at the latest, in 1991. As plaintiff had three years from the 27 date on which his claims accrued in which to file his complaint against defendants, he was 28 14 1 required to do so no later than 1994.3 Plaintiff, however, did not file the instant action until 2 September 17, 2007. As a result, the complaint is clearly time-barred. Further, the 3 complaint, when read with the requisite liberality, contains no allegation that would suggest 4 plaintiff is able to show he is entitled to any period of statutory tolling other than that 5 discussed above. See Jablon v. Dean Witter & Co., 614 F.2d 677, 683 (9th Cir. 1980) 6 (holding complaint may be dismissed on statute of limitations grounds without leave to 7 amend, where allegations therein, even when read with required liberality, would not permit 8 plaintiff to prove statute was tolled). Accordingly, the complaint is subject to dismissal on 9 the alternative ground that the complaint is time-barred.4 10 11 12 C. Unserved Defendants In its October 12, 2007 Order of Service, the Court directed the United States Marshal (“Marshal”) to serve, at the SFPD, the four investigating officers named as defendants to this 13 action. The Court also directed that a courtesy copy of the Order of Service be mailed to the 14 San Francisco City Attorney. On January 4, 2008, Deputy City Attorney Daniel Zaheer 15 (“Zaheer”) filed the instant motion to dismiss on behalf of defendants in their official 16 capacities. In so doing, Zaheer submitted a declaration in which he stated: (1) the Marshal 17 had attempted to serve the individual defendants at the SFPD and had served a courtesy copy 18 of the complaint on the San Francisco City Attorney’s Office; (2) three of the defendants are 19 former SFPD employees and have retired; (3) Zaheer had been unable to verify whether the 20 fourth defendant was a former SFPD employee or is a current SFPD employee, but his efforts 21 22 to do so are continuing; and (4) Zaheer had drafted letters to the defendants and asked the 23 3 The two-year statute of limitations for personal injury actions, which statute became effective January 1, 2003, does not apply retroactively to claims that accrued prior to that date. See Maldonado, 370 F.3d at 954-55. Thus, plaintiff had one year under the pre-2003 25 statute of limitations, plus an additional two years under the statute that tolls for the disability of imprisonment, in which to file his action. 26 24 4 As the Court has determined plaintiff’s claims are barred under Heck and, alternatively, are time-barred, the Court does not reach defendants’ arguments that plaintiff has not stated cognizable Brady claims against the investigating officers and that the officers 28 are immune from suit. 27 15 1 City’s Retirement Department to forward them to the individual officers. (Zaheer Decl. ¶¶ 2- 2 5.) Subsequently, upon filing the reply brief in this matter on April 16, 2008, Zaheer notified 3 the Court that all of the individual defendants had been located but had not yet been served. 4 Although the defendants to this action have not been served in their individual 5 capacities, it is apparent that the claims against them are subject to dismissal for the reasons 6 discussed above. Specifically, the allegations against the defendants in their individual 7 capacities are the same as those against the defendants in their official capacities, and there is 8 no suggestion in the complaint and exhibits attached thereto, or in the briefs and exhibits 9 filed in connection with the instant motion to dismiss, that the analysis of the claims against 10 the defendants in their individual capacities differs in any respect from the analysis of the 11 claims against the defendants in their official capacities. Cf. Columbia Steel Fabricators, Inc. 12 v. Ahlstrom Recovery, 44 F.3d 800, 803 (9th Cir.1995) (affirming grant of summary 13 judgment in favor of nonappearing defendant where plaintiff, in response to summary 14 judgment motion filed by defendant who had appeared, had “full and fair opportunity to brief 15 and present evidence” on dispositive issue as to claim against nonappearing defendant). As 16 the Court has found plaintiff’s claims are barred under Heck, and, alternatively, that the 17 claims are time-barred, plaintiff cannot prevail on his claims against the defendants in their 18 individual capacities. Accordingly, the claims against defendants in their individual 19 capacities will be dismissed. 20 D. Plaintiff’s Motion for Leave to File First Amended Complaint 21 22 23 24 25 Plaintiff has moved for leave to file a first amended complaint expressly naming the SFPD as a defendant. For the reasons discussed above, however, the Court finds such amendment would be futile. Accordingly, plaintiff’s motion to amend will be denied. CONCLUSION 26 For the foregoing reasons, the Court orders as follows: 27 1. Defendants’ motion to dismiss is hereby GRANTED, and the above-titled action is 28 hereby DISMISSED with prejudice as to all defendants. (Docket No. 13.) 16 1 2 3 4 2. Plaintiff’s motion for leave to file a first amended complaint is hereby DENIED. (Docket No. 22.) This order terminates Docket Nos. 13 and 22. The Clerk shall close the file. 5 6 7 8 9 IT IS SO ORDERED. DATED: September 17, 2008 _____________________________ MAXINE M. CHESNEY United States District Judge 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17