Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.

Bell v. City of Boise

United States District Court, D. Idaho

January 27, 2014

JANET F. BELL, BRIAN S. CARSON, ROBERT MARTIN, LAWRENCE LEE SMITH, ROBERT ANDERSON, PAMELA S. HAWKES, JAMES M. GODFREY, and BASIL E. HUMPHREY, Plaintiffs,
v.
CITY OF BOISE; BOISE POLICE DEPARTMENT; and MICHAEL MASTERSON, in his official capacity as Chief of Police, Defendants

For Janet F. Bell, Brian S. Carson, Robert Martin, Lawerence Lee Smith, Robert Anderson, Pamela Hawkes, Basil E. Humphrey, James M. Godfrey, Plaintiffs: Aziz Ahmad, Rebecca Valentine, LEAD ATTORNEYS, PRO HAC VICE, Latham & Watkins LLP, Washington, DC; Eric S Tars, LEAD ATTORNEY, PRO HAC VICE, National Law Center on Homelessness & Poverty, Washington, DC; Howard A Belodoff, LEAD ATTORNEY, Idaho Legal Aid Services, Inc, Boise, ID; Marguerite Sullivan, PRO HAC VICE, Latham & Watkins, Washington, DC.

For City of Boise, Idaho, Boise Police Department, Michael Masterson, Defendants: Scott B Muir, LEAD ATTORNEY, Boise City Attorney's Office, Boise, ID; Kelley K. Fleming, City of Boise, Boise, ID.

OPINION

Page 1238

Honorable Ronald E. Bush, U.S. Magistrate Judge.

MEMORANDUM DECISION AND ORDER ON DEFENDANTS' SECOND MOTION FOR SUMMARY JUDGMENT

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.

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 ordinances [1] prohibiting (as a practical matter) camping and sleeping in public. Defendants now seek summary judgment on Plaintiffs' claim that Defendants' enforcement

Page 1239

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 " favorable-termination" requirement of Heck v. Humphrey, 512 U.S. 477, 114 S.Ct. 2364, 129 L.Ed.2d 383 (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 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 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]

Page 1240

BACKGROUND [4]

In this lawsuit, Plaintiffs claim that Defendants enforce Boise City ordinances [5] (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 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). Court entered a Memorandum Decision and Order which held that the Rooker-Feldman doctrine [7] precluded subject matter jurisdiction over Plaintiffs' claims for retrospective relief and that Plaintiffs' claims for prospective injunctive

Page 1241

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, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) (" We hold that, in 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 on the case of Jones v. City of Los Angeles, 444 F.3d 1118 (9th Cir. 2006), vacated by 505 F.3d 1006

Page 1242

(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, 97 S.Ct. 1401, 51 L.Ed.2d 711 (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 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, 82 S.Ct. 1417, 8 L.Ed.2d 758 (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,

Page 1243

88 S.Ct. 2145, 20 L.Ed.2d 1254 (1968).

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 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

Page 1244

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, 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.[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).

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, 125 S.Ct. 1242, 161 L.Ed.2d 253 (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

Page 1245

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, 562 U.S. 29, 131 S.Ct. 447, 451, 178 L.Ed.2d 460 (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, 179 L.Ed.2d 233 (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 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. § § 2201-02.[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, 118 S.Ct. 978, 140 L.Ed.2d 43 (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 constitutional challenge to the ordinances in their criminal case, based on the same facts underlying Plaintiffs' Eighth Amendment

Page 1246

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 Spencer [18]. 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]

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 action for unconstitutional conviction or custody, but because it was a 'simple way

Page 1247

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).

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,

Page 1248

535 F.3d 262, 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. 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."

Page 1249

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); 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, 124 S.Ct. 1303, 158 L.Ed.2d 32 (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 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:

Page 1250

We are mindful that dicta from concurring and dissenting opinions in a recently decided case, Spencer v. Kemna, 523 U.S. 1, 118 S.Ct. 978, 140 L.Ed.2d 43 . . ., 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 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.

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

Page 1251

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 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 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)

Page 1252

(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]

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, 101 S.Ct. 411, 66 L.Ed.2d 308 (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, 104 S.Ct. 892, 79 L.Ed.2d 56 (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 their privies on the same cause of action." D.A.R., Inc., v. Sheffer, 134 Idaho 141, 997 P.2d 602, 605 (Idaho 2000) (citing Yoakum v. Hartford Fire Ins., 129 Idaho 171, 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, 144 Idaho 119, 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, 122 Idaho 883, 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,

Page 1253

411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (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, 95 S.Ct. 1200, 43 L.Ed.2d 482; Wolff v. McDonnell, 418 U.S. 539, 554, n. 12, 94 S.Ct. 2963, 41 L.Ed.2d 935. 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 Ass'n, 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, 101 S.Ct. 411, 66 L.Ed.2d 308 (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 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, 144 Idaho 119, 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, 145 Idaho 774, 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 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." [WL] at *10.

Plaintiffs did have a right to a jury trial in their criminal cases.[28] However, the

Page 1254

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.

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.

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.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.