Opinion
No. C00-2878 MMC
July 9, 2001
ORDER GRANTING DEFENDANTS' MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS; DISMISSING STATE LAW CLAIMS; VACATING HEARING
Before the Court is defendants' motion for partial judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Plaintiff filed opposition, to which defendants have replied. Having considered the papers submitted, the Court deems the matter appropriate for decision on the papers, VACATES the hearing scheduled for July 6, 2001, and rules as follows.
BACKGROUND
On May 29, 1998, a criminal complaint was filed against plaintiff in the San Francisco Municipal Court. (Defs.' Req. for Judicial Not. Ex. B.) The criminal complaint alleged that, inter aba, on January 2, 1998 plaintiff possessed for sale cocaine base in violation of § 11351.5 of the California Health and Safety Code. (See id.)
Defendants request that the Court take judicial notice of excerpts from the state court criminal case file. Plaintiff does not object and requests that the Court take judicial notice of many of the same documents. Accordingly, the Court grants the parties' respective requests for judicial notice of the proffered copies of the state court record.
On August 28, 1998, a preliminary hearing was held in the San Francisco Municipal Court. (See id. Ex. C.) At the hearing, the prosecution offered evidence that a police officer observed plaintiff, while on a street, reach into her pants, retrieve "two small white objects," and hand them to a man after he provided plaintiff with currency. (See id. Ex. C at 4-5.) The man dropped the "two small white objects" on the ground, and they were retrieved by another officer. (See id. Ex. C at 5.) Plaintiff was arrested and "off-white rocks were recovered from [plaintiff] during a strip search in a strip tank." (See id. Ex. C at 7.) Both the "white objects" retrieved from the street and the "off-white rocks" recovered from plaintiff tested "positive for cocaine base." (See id. Ex. C at 10.)
An information charging plaintiff with inter alia, a violation of § 11351.5 was filed in the San Francisco Superior Court on September 10, 1998. (See id. Ex. D.) On May 2, 2000, plaintiff pleaded guilty to a violation of § 11351.5. (See id. Ex. E at 2-3, 7.) At her sentencing on June 9, 2000, plaintiff was placed on probation for a period of three years, on condition that she serve an eight-month jail term, which could be served through home detention. (See id. Ex. F.)
On August 10, 2000, plaintiff filed the instant action. In the First Cause of Action contained in her First Amended Complaint ("FAC"), filed March 23, 2001, plaintiff alleges that defendants violated 42 U.S.C. § 1983 by depriving plaintiff of her "Fourth Amendment right to be free from unreasonable search and seizure." (See FAC at ¶ 29.) The factual allegations supporting this claim are as follows: "After her arrest [plaintiff] was taken to the Tenderloin Task Force Police Station and subjected to an invasive physical body cavity search, conducted by both male and female officers. During the body cavity search [plaintiff] was kicked and beaten which resulted in multiple physical injuries. Her injuries were so serious that she was taken to San Francisco General Hospital immediately after the body cavity search. At San Francisco General Hospital [plaintiff] was treated by a rape counselor." (See id. at ¶ 1.)
DISCUSSION
Defendants move for judgment on the pleadings on plaintiffs First Cause of Action, 42 U.S.C. § 1983, on the ground that the claim is barred under Heck v. Humphrey, 512 U.S. 477 (1994).
"Under the Court's holding in Heck, a § 1983 action that would call into question the lawfulness of a plaintiffs conviction or confinement is not cognizable, and does not, therefore, accrue until and unless the plaintiff can prove that [her] conviction or sentence has been reversed on direct appeal" or "invalidated." Harvey v. Waldron, 210 F.3d 1008, 1013 (9th Cir. 2000). "[A] § 1983 action alleging illegal search and seizure of evidence upon which criminal charges are based does not accrue until the criminal charges have been dismissed or the conviction has been overturned." Id. at 1015 (holding § 1983 claim based on unreasonable seizure of gaming devices not cognizable until criminal charge of possessing illegal gaming devices was dismissed, as gaming devices were "essential element" of crime charged).
Recently, a district court, applying Harvey, concluded that a § 1983 claim based on excessive force used during a body cavity search is not cognizable under Heck where the search results in the retrieval of evidence that is "an essential element" of the crime. See Anderson v. Pearman, 2001 WL 568619 (N.D. Cal. 2001) (holding where body cavity search resulted in retrieval of cocaine base, § 1983 claim that excessive force was used during search not cognizable because criminal charge of possession for sale of cocaine base was pending). As explained in Anderson, evidence obtained as a result of an invasive search, even if the search is supported by probable cause or exigent circumstances, is subject to suppression if the force used to conduct the search was excessive. See United States v. Cameron, 538 F.2d 1976 (9th Cir. 1976) (reversing conviction where evidence used to support possession of heroin claim was retrieved as a result of "compelled enemas" administered under circumstances that violated Fourth Amendment).
Here, the contraband seized as a result of the body cavity search was offered at the preliminary hearing as evidence that plaintiff possessed for sale cocaine base, and plaintiff was held to answer based on that evidence. Plaintiff subsequently pleaded guilty to the charge of possession for sale of cocaine base. At no time during the state criminal proceedings did plaintiff file a motion to suppress. (See Pl.s' Opp. at 8.)
Plaintiff argues that the instant action does not implicate the validity of her conviction because other contraband was seized and offered against her, and that her failure to file a motion to suppress is irrelevant to a determination of whether Heck bars her § 1983 claim.
In interpreting Heck, some circuits have created a general exception for § 1983 claims based on unlawful search and seizure, holding the mere possibility that convictions could withstand the suppression of evidence resulting from such challenged seizures precludes application of the Heck bar. See, e.g. Copus v. City of Edgerton, 151 F.3d 646, 648 (7th Cir. 1998) (holding "it is enough that these possibilities exist;" declining to apply Heck to § 1983 unreasonable search claim, even though evidence seized as result of challenged search was offered at criminal trial and plaintiff never moved to suppress).
The Ninth Circuit, as well as the Second, Fifth, and Sixth Circuits, however, have rejected that approach, and instead look to what actually occurred in the criminal proceedings, rather than what possibly could have occurred. See Harvey, 210 F.3d at 1015 (citing cases). In Mackey v. Dickson, 47 F.3d 744 (5th Cir. 1995), cited with approval in Harvey, the Fifth Circuit stayed the § 1983 action pending conclusion of the criminal case, and observed:
If [plaintiff] is tried and convicted and in his contested criminal case no evidence is presented resulting directly or indirectly from any of his arrests, it is difficult to see how any illegality in any of his arrests could be inconsistent with his conviction. On the other hand, if he is convicted and evidence is presented by the prosecution at his criminal trial which is a direct or indirect product of one or more of his arrests, then his section 1983 damage claims challenging the validity of his arrests would appear to undermine the validity of his conviction and hence be barred by Heck.
Id. at 746.
As noted, plaintiff argues she could have been convicted on the basis of evidence seized before the strip search. By pleading guilty, however, plaintiff has precluded the Court from reviewing a record of the proceedings at trial, and thus has effectively forfeited that argument. In the absence of a trial on the criminal charges, the Court could only speculate as to sufficiency of other evidence to support a conviction. What the Court does have before it is the record of the preliminary hearing, which establishes that the prosecution relied on the contraband seized as a result of the strip search, and, based on the evidence offered at the preliminary hearing, plaintiff was held to answer to the charge to which she subsequently pleaded guilty. To conclude in this action that the very evidence offered to obtain plaintiffs conviction was unlawfully seized, and thus inadmissible, would serve to "undermine the validity" of that conviction. See Mackey, 47 F.3d at 746; Harvey, 210 F.3d at 1015-16.
For example, the contraband taken as a result of the body cavity search was found location that leaves no room for argument as to plaintiffs knowledge or control of that contraband. The other contraband, by contrast, was not found in plaintiffs possession. As noted, the prosecution relied on both seizures to prove its case at the preliminary hearing, (see Def.'s Req. for Judicial Notice Ex. C at 3-5), and inevitably would have offered evidence obtained during both seizures at trial.
Citing Haddad v. State of California, 64 F. Supp.2d 930 (C.D. Cal. 1999), plaintiff argues that Heck does not apply because plaintiff is not "in custody" and thus cannot challenge the validity of her conviction through habeas procedures. See id. at 937 (holding Heck inapplicable where plaintiff not "in custody" and unable to file habeas petition); but see Huey v. Stime, 230 F.3d 226, 230 (6th Cir. 2000) (holding Heck bar applies even where plaintiff is not "in custody" and has no available habeas remedy to challenge conviction). Plaintiff, however, is on probation until approximately June 2003, (see Def.'s Req. for Judicial Not. Ex. F), and thus is considered to be "in custody" for purposes of both federal and state habeas relief. See Benson v. State of California, 328 F.2d 159, 162 (9th Cir. 1964) (holding federal habeas petition not moot when prisoner released from jail and placed on probation, in light of "limitations which would continue to apply to petitioner even after he [is] released from confinement"); Mendez v. Superior Court, 87 Cal.App.4th 791, 796 (Cal.Ct.App. 2001) (noting person "on probation" or "otherwise in constructive custody" has available state habeas remedies).
Consequently, plaintiff's § 1983 claim is not cognizable unless and until her conviction is reversed or otherwise invalidated. See Harvey, 210 F.3d at 1015-16. Accordingly, plaintiffs § 1983 claim is dismissed without prejudice.
Plaintiffs remaining claims, as well as the entirety of the Counterclaim filed on behalf of certain of the individual defendants, arise under state law. As the sole federal claim raised in this action has been dismissed, the Court declines to exercise supplemental jurisdiction over the state law claims. See 28 U.S.C. § 1367 (c)(3) (providing district court may decline to exercise supplemental jurisdiction over state claims when it has dismissed claims over which it has original jurisdiction).
CONCLUSION
For the reasons expressed above:
1. Defendants' motion for partial judgment on the pleadings is hereby GRANTED, and plaintiffs First Cause of Action is hereby DISMISSED without prejudice.
2. Plaintiffs remaining claims and all counter-claims are hereby DISMISSED without prejudice to refiling in state court.
The Clerk shall close the file and terminate all pending motions.
IT IS SO ORDERED.