Free Reply Memorandum - District Court of California - California

Case 3:07-cv-04770-MMC

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DENNIS J. HERRERA, State Bar #139669 City Attorney JOANNE HOEPER, State Bar #114961 Chief Trial Deputy DANIEL ZAHEER, State Bar #237118 Deputy City Attorney Fox Plaza 1390 Market Street, 6th Floor San Francisco, California 94102-5408 Telephone: (415) 554-3822 Facsimile: (415) 554-3837 E-Mail: [email protected] Attorneys for Defendant CITY & COUNTY OF SAN FRANCISCO

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA JOAQUIN CIRIA, Plaintiff, vs. NICHOLAS J. RUBINO, OFFICER AISSA, JAMES CROWLEY, ARTHUR GERRANS AND DOES 1-10 INCLUSIVE, Defendants. Case No. C07-4770 MMC REPLY BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS Judge: Trial Date: Maxine M. Chesny Not Set

Plaintiff's complaint is barred by the doctrine of Heck v. Humphrey, 512 U.S. 477 (1994). 22 The opposition brief's arguments that Heck does not apply rest on a misreading of relevant case law. 23 The Complaint pleads only a claim under Brady v. Maryland, 373 U.S. 83 (1963), which is barred by 24 the Heck doctrine as set forth by binding Ninth Circuit precedent. Moreover, even if the Complaint is 25 not barred by Heck, it nonetheless is untimely and fails to state a claim upon which relief can be 26 granted. Accordingly, the City respectfully requests that the Court dismiss the Complaint without 27 leave to amend. 28
CCSF'S REPLY TO MOTION TO DISMISS COMPLAINT; Case No. C07-4770 MMC
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I.

THE COMPLAINT IS BARRED BY THE DOCTRINE OF HECK V. HUMPHREY. Plaintiff argues that Heck does not apply to the extent that he seeks only the remedy of an

injunction ordering release and preservation of evidence relating to his criminal case. See Oppo Br. at 8 (arguing that his request for such an order "will not `necessarily imply the invalidity of' his conviction"). Plaintiff's argument in this regard relies upon a misunderstanding of the distinction between rights and remedies which, once corrected, disposes of the opposition. In order to be due relief under section 1983, plaintiff first must show that a specific statutory or constitutional right has been violated. See Baker v. McCollan, 443 U.S. 137, 144 n.3 (Section 1983 "is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred"). The Complaint and the Opposition Brief identify only a single right that was violated: plaintiff's pre-trial right to exculpatory evidence under Brady. The Ninth Circuit has plainly held, however, that in order to vindicate this right under section 1983 a plaintiff must satisfy the Heck prerequisite of first invalidating his conviction through habeas corpus. See Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675 (9th Cir. 1984). Plaintiff misreads Osborne v. District Attorney's Office, 423 F.3d 1050 (9th Cir. 2005). Contrary to plaintiff's suggestion, Osborne does not hold that Heck is inapplicable to all section 1983 actions seeking the remedy of evidence production. Instead, Osborne focused on the plaintiff's novel claim "that by refusing him post-conviction access to the evidence, the State has violated his constitutional rights under the First, Sixth, Eighth, and Fourteenth Amendments." 1 Id. at 1051 (emphasis added). The plaintiff in Osborne did not argue that DNA evidence implicating him had been withheld at the time of his trial, thus violating his Brady rights. Instead, Osborne claimed that after he was convicted the defendant had unconstitutionally denied him access to the DNA evidence. It was thus plain that Osborne's claim did not require a ruling on the validity of his conviction because Osborn had not alleged ­ and was not required to prove ­ that the DNA evidence was

The court noted that the district court did not reach "the question of whether there exists a constitutional right of post-conviction access to DNA evidence" but instead assumed such a claim was valid and dismissed on Heck grounds. Osborne, 423 F.3d at 1051. The Ninth Circuit likewise expressed no opinion regarding whether such a constitutional right exists. See id. at 1056.
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unlawfully suppressed at the time of trial. See Osborne, 423 F.3d at 1054 ("Heck does not bar a prisoner's § 1983 action seeking post-conviction access to biological evidence in the government's possession." (emphasis added)). Indeed, the core of Osborne's claim was that the type of DNA testing he sought to have conducted "was [not] available at the time of his trial," id. at 1052, and that he had a constitutional right to take advantage of new technological developments that might have exonerated him. Here, plaintiff's complaint is premised on an entirely different constitutional right. Plaintiff does not argue that he has a constitutional right to the post-conviction release of evidence. Instead, he makes an ordinary Brady claim, i.e. that "[d]efendants violated his federal constitutional rights by denying him access to exculpatory/exonerating evidence" at the time of his trial. See Oppo. Br. at 7; id. at 12 ("The violative conduct by the defendants interfered with and infringed upon Plaintiff's constitutional rights to prepare and present a defense."); see also Complaint ¶ 32 (alleging that defendants violated his rights under the Constitution in that "the government must disclose all exculpatory and exonerating evidence to the defense prior to trial" (emphasis added)). Unlike the claim made in Osborne, plaintiff's claim necessarily implies the invalidity of his conviction. This Court could not simultaneously hold that plaintiff's Brady rights were violated and thus plaintiff is entitled to remedies under section 1983 while also holding that plaintiff's conviction need not be vacated. Plaintiff is wrong in arguing that success on his Brady claim does not necessarily imply the invalidity of his conviction. As noted, the Ninth Circuit held to the contrary in Ybarra. Explaining that the plaintiff, Ybarra, "seeks declaratory relief that, under Brady, [defendant] has violated his right to a fair trial," the court held that "[a]lthough [Ybarra] does not specifically request release, the finding of such declaratory relief in his favor would show that release was required." Id. at 682 (citing Prieser v. Rodriguez, 411 U.S. 475, 500 (1973)). Accordingly, "in order to prevail on this claim, he must collaterally void his state court conviction." Id. Ybarra has not been undermined or overruled by subsequent precedent, and therefore is binding authority. Nor is the Ninth Circuit alone in holding that the Heck doctrine applies to Brady claims. See Amaker v. Weiner, 179 F.3d 48, 51 (2d
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Cir. 1999) (holding that a Brady claim "does indeed call into question the validity of [plaintiff's] conviction [and] is barred by Heck"). Plaintiff attempts to avoid Ybarra by arguing that a Brady violation does not require the invalidation of a conviction because he does not need to show prejudice in order to obtain relief under section 1983. However, the underlying assumption of plaintiff's argument ­ that he would be due declaratory and/or injunctive relief under section 1983 even if the alleged withholding of exculpatory evidence did not prejudice the outcome of his trial ­ is simply incorrect. There is no difference between showing a Brady violation for section 1983 purposes and showing a Brady violation to invalidate a conviction. 2 Whichever relief is sought, "there is never a real `Brady violation' unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict." Strickler v. Greene, 527 U.S. 263, 281 (1999). Simply put, there is no Brady violation unless there is prejudice. See id. ("There are three components of a true Brady violation: [1] The evidence at issue must be favorable to the accused . . . [2] that evidence must have been suppressed by the State . . . [3] and prejudice must have ensued." (emphasis added)). Ciria also misleadingly quotes Bradley v. Pryor, 305 F.3d 1287, 1291 (11th Cir. 2002), which quoted in dicta a statement by one judge from another circuit in a concurrence to a denial of rehearing en banc. See id. (quoting Harvey v. Horan, 285 F.3d 298, 307-08 (4th Cir. 2002) (Luttig, J., concurring in denial of reh'g en banc)). In that passage, Judge Luttig was making the uncontroversial statement that "an assertion of [the] constitutional right to material and exculpatory information producible under Brady . . . has never been thought necessarily to imply the invalidity of the underlying conviction." Id. (emphasis added). Of course, an accused's pre-trial demand that the prosecution disclose Brady evidence before trial does not necessarily implies the invalidity of the Defendants have not found any case discussing the standard for establishing a Brady violation for purposes of a section 1983 suit. As discussed in the opening brief, such claims are typically brought against the prosecutor that has the Brady obligation. However, a section 1983 suit against the prosecutor is almost always barred by absolute immunity. See Broam v. Bogan, 320 F.3d 1023, 1030 (9th Cir. 2003). Because such claims rarely make it past the pleadings stage, no court has apparently ever had the opportunity to explain the requisite showing. However, as argued, there is no basis for changing the Brady requirements when the plaintiff seeks money or declaratory relief, rather than habeas relief.
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conviction. However, when a convict makes a post-conviction section 1983 claim for declaratory and injunctive relief based upon Brady, that is more than a mere "assertion" before trial, and the plaintiff must show a "true" Brady violation as set forth in Strickler, i.e. favorable evidence that was withheld and caused prejudice to the plaintiff. Moreover, Bradley rests upon the same assumption as does Osborne ­ that if there exists a constitutional right to post-conviction release of evidence, then a claim based upon such a right would not be barred by Heck. See Bradley, 305 F.3d at 1292 (Birch, J., specially concurring) (noting that "I am inclined to affirm [because] the petitioner does not enjoy a substantive or procedural due process right to the relief he seeks" but noting that further briefing would help flesh out that question). 3 Judge Luttig agreed that the right at issue was not one under Brady. See Harvey, 285 F.3d at 310 ("The asserted right at issue is not one to material exculpatory evidence necessary to ensure a fair trial." (citing Brady, 373 U.S. at 83)). Finally, in any event, even if Judge Luttig's statement carried the meaning suggested by Ciria it would make no difference because it would not overrule Ybarra, which still provides the binding rule in this Circuit. II. PLAINTIFF CANNOT SALVAGE THE COMPLAINT THROUGH AMENDMENT. Plaintiff argues that his complaint could be saved through amendment to exclude his request for a declaratory judgment. Oppo. Br. at 13. For the reasons noted above, even a stand-alone claim seeking only an evidence release injunction would be barred by Heck. Moreover, plaintiff should not be permitted to amend his complaint to plead an Osborne-type claim alleging a violation of a putative post-conviction constitutional right to access evidence. Such a claim would rest on entirely different factual and legal foundation than the allegations set forth in the Complaint and would not be properly brought against the retired officer defendants in this lawsuit. The defendants here are not responsible for the maintenance and release of records regarding cases they investigated nearly twenty years ago prior to their retirement. Moreover, such a claim would not be ripe because plaintiff has not yet Judge Luttig argued that a new constitutional right should be recognized ­ though limited solely to release of evidence for DNA testing. See Harvey, 285 F.3d at 305-06 (Luttig, J., concurring in denial of reh'g en banc) (arguing that technological advances in DNA testing was the "evidentiary equivalent of `watershed' rules of constitutional law" and thus warranted recognition of a new constitutional right "of access to DNA evidence post-conviction"). Here, Ciria does not claim he wishes to subject any evidence to DNA testing.
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requested the evidence from the person or entity that maintains such records. One proper method of obtaining such evidence is by filing a habeas corpus petition and satisfying the discovery requirements within such proceeding. See, e.g. Pham v. Terhune, 400 F.3d 740, 742-43 (9th Cir. 2005) (discussing discovery request for evidence supporting a Brady claim, which was made under Rule 6(a) of the Federal Rules Governing Section 2254 cases). Heck requires that plaintiff follow such procedures and forecloses plaintiff's attempt to avoid them through a section 1983 action. III. THE COMPLAINT IS BARRED BY THE STATUTE OF LIMITATIONS. As noted in defendant's opening brief, Heck applies and therefore plaintiff's claim has not yet accrued. However, if Heck does not apply, plaintiff's claim is barred by the statute of limitations. Plaintiff's claim is time barred because, according to the complaint, the only new discovery he made in May 2006 was a discovery about his legal rights under Brady. In the opposition brief, Ciria lists several factual "discoveries" which he claims also did not come to light until May 2006. See Oppo. Br. at 15. However, each of these facts were either known to Ciria at the time of his 1991 trial or should have been discovered through reasonable diligence. See, e.g., Bartelson v. United States, 96 F.3d 1270, 1277 (9th Cir. 1996) (holding that the discovery rule sets the date of accrual as when "the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, the injury and its cause"). First, Ciria states that he discovered in May 2006 that alleged surveillance of him before his arrest "was required to be recorded." Oppo. Br. at 15. Ciria does not argue that he did not know at the time that he was being watched by police, cf. Complaint ¶ 17 (alleging that before April 19, 1990, "Plaintiff witnessed Rubino following him on numerous occasions"), but rather that he only discovered in 2006 that records should have been prepared based upon that surveillance. This constitutes nothing more than ignorance of police procedures which could have been discovered by the exercise of diligence and would have been known to Ciria's defense counsel ­ whose knowledge is imputed to Ciria. 4 See Veal v. Geraci, 23 F.3d 722, 725 (2d Cir. 1994). Plaintiff's second factual Although Ciria would be right that facts not known to his lawyer would not be imputed to him, see Oppo. Br. at 17-18, as noted above he has failed to identify any fact that would not be known either to him or to his attorney had they exercised diligence at the time of trial.
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"discovery" fails for the same reason. Plaintiff does not argue that he did not know that Crowley and Gerrans interviewed people at Galan's Bar, cf. Complaint ¶ 29 ("Plaintiff informed the detectives that he had seen them the night before, April 18 [1990], at Galan's Bar talking with patrons"), but rather that he did not know that they would have taken notes. This too is not a newly available fact that triggers the discovery rule. Ciria's third factual predicate, that he discovered that two defendants knew that he traded a red Pontiac Firebird before the murder, is nonsensical. Plaintiff obviously knew in 1990 that he traded the car, see Complaint ¶ 18, and thus if that fact were exculpatory he and his lawyer could have brought it to the jury's attention at the time of trial. Plaintiff also knew that the officers were aware that he no longer drove the Firebird, as he alleges that he was arrested while driving a different car. See Complaint ¶ 19. Similarly, the fourth factual discovery ­ that Crowley had evidence that plaintiff had a jeri curl on the night of the murder ­ is not exculpatory or new because Ciria knew in 1990 what hairstyle he had on the night of the murder. Ciria's next factual discovery, that Crowley's knowledge of plaintiff's hairstyle led him to concoct an unfairly suggestive lineup, is not new to Ciria, who had access to the lineup photos at the time of his trial and could have used them then to argue that the lineup was tainted by the hairstyle issue. Ciria's final "discovery" ­ that the officers "met, discussed and exchanged information concerning" plaintiff's case is a truism that was obviously known to him and his lawyer at the time of his trial. IV. THE COMPLAINT FAILS TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED. Recognizing that the Brady claim alleged in the complaint fails because the defendant officers

21 had no obligation to disclose evidence directly to him, Oppo. Br. at 18-19, Ciria instead argues 22 around the allegations in the Complaint by contending that his Brady claim rests on the officers' 23 failure to turn over evidence to the prosecutor. However, even if Ciria had alleged such a claim, it 24 would nonetheless fail because defendants are absolutely immune with regard to conduct occurring 25 after probable cause has been established that constitutes a judicial or quasi-judicial function. See 26 Broam, 320 F.3d at 1033-34. Here, even assuming defendants did not turn over some exculpatory 27 evidence to the prosecutor, such conduct would have occurred after plaintiff was arrested, and thus 28
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after probable cause had been established. See id. The officers' decision to turn over particular evidence to the prosecutor in order to comply with their Brady obligations is neither an investigatory nor an administrative act and therefore they are afforded absolute immunity with regard to that conduct. See id. Even if the officers are not absolutely immune for their activities in aiding the prosecution of Ciria's case, Ciria's official capacity claim against them fails because they have retired. And, to the extent Ciria pleads an official capacity cause of action against the City, such cause of action fails because Ciria has not alleged ­ nor could he prove ­ that the alleged withholding of exculpatory evidence was the result of an official policy, custom or practice. See Monell v. Dep't of Social Services, 436 U.S. 658, 694 (1978). Ciria admits this by stating that "[t]he Complaint does not theorize that the City of San Francisco `had a deliberate policy, custom, or practice that was the `moving force' behind the constitutional violation suffered." Oppo. Br. 21. Accordingly, Ciria's official capacity suit fails. V. STATUS OF SERVICE. Since the City's motion to dismiss was filed, the City has located all of the individual named defendants in this lawsuit. However, those individuals have not yet been served. As noted in the opening brief, service will be unnecessary if the Court grants the motion to dismiss. CONCLUSION For all the foregoing reasons, defendant respectfully requests that the Court grant the motion to dismiss without leave to amend. Dated: April 16, 2008 DENNIS J. HERRERA City Attorney JOANNE HOEPER Chief Trial Deputy DANIEL ZAHEER Deputy City Attorney By: s/Daniel Zaheer DANIEL ZAHEER Attorneys for Defendant(s) CITY AND COUNTY OF SAN FRANCISCO
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CCSF'S REPLY TO MOTION TO DISMISS COMPLAINT; Case No. C07-4770 MMC

PROOF OF SERVICE I, Pamela Cheeseborough, declare as follows: I am a citizen of the United States, over the age of eighteen years and not a party to the aboveentitled action. I am employed at the City Attorney's Office of San Francisco, Fox Plaza Building, 1390 Market Street, Fifth Floor, San Francisco, CA 94102. On April 16, 2008, I served the following document(s): REPLY BRIEF IN SUPPORT OF DEFENDANT'S MOTION TO DISMISS on the following persons at the locations specified: Joaquin Ciria Plaintiff In Pro Se E-89966 Facility 2-12-117 C.S.P. ­ Solano State Prison Post Office Box 4000 Vacaville, CA 95696 in the manner indicated below: BY UNITED STATES MAIL: Following ordinary business practices, I sealed true and correct copies of the above documents in addressed envelope(s) and placed them at my workplace for collection and mailing with the United States Postal Service. I am readily familiar with the practices of the San Francisco City Attorney's Office for collecting and processing mail. In the ordinary course of business, the sealed envelope(s) that I placed for collection would be deposited, postage prepaid, with the United States Postal Service that same day. BY PERSONAL SERVICE: I sealed true and correct copies of the above documents in addressed envelope(s) and caused such envelope(s) to be delivered by hand at the above locations by a professional is attached or will be messenger service. A declaration from the messenger who made the delivery filed separately with the court. BY OVERNIGHT DELIVERY: I sealed true and correct copies of the above documents in addressed envelope(s) and placed them at my workplace for collection and delivery by overnight courier service. I am readily familiar with the practices of the San Francisco City Attorney's Office for sending overnight deliveries. In the ordinary course of business, the sealed envelope(s) that I placed for collection would be collected by a courier the same day. BY FACSIMILE: Based on a written agreement of the parties to accept service by fax, I transmitted true and correct copies of the above document(s) via a facsimile machine at telephone number Fax #' to the persons and the fax numbers listed above. The fax transmission was reported as complete and without error. The transmission report was properly issued by the transmitting facsimile machine, and a copy of the transmission is attached or will be filed separately with the court. report I declare under penalty of perjury pursuant to the laws of the State of California that the foregoing is true and correct. Executed April 16, 2008, at San Francisco, California. s/Pamela Cheeseborough Pamela Cheeseborough

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