Paul Blumberg v. Brian Hewitt

FILED
NOT FOR PUBLICATION APR 07 2015

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

PAUL BLUMBERG, No. 12-56568

Plaintiff - Appellant, D.C. No. 2:10-cv-05072-GAF-
AJW
v.

BRIAN HEWITT; et al., MEMORANDUM*

Defendants - Appellees.

Appeal from the United States District Court
for the Central District of California
Gary A. Feess, District Judge, Presiding

Submitted October 14, 2014**

Before: LEAVY, GOULD, and BERZON, Circuit Judges.

Former California state prisoner Paul Blumberg appeals pro se from the

district court’s judgment dismissing his 42 U.S.C. § 1983 action alleging civil

rights violations arising from his state court conviction for assault with a

semiautomatic firearm, attempted murder, and conspiracy to commit murder. We

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
have jurisdiction under 28 U.S.C. § 1291. We review de novo a dismissal under

Fed. R. Civ. P. 12(c). Berg v. Popham, 412 F.3d 1122, 1125 (9th Cir. 2005). We

may affirm on any ground supported by the record. Guerrero v. Gates, 442 F.3d

697, 703 (9th Cir. 2006). We affirm in part, reverse in part, and remand.

The district court properly dismissed Blumberg’s malicious prosecution

claims as Heck-barred because a favorable judgment on these claims would

necessarily imply the invalidity of his guilty plea conviction for attempted murder.

See id. at 703-04. To the extent that Blumberg’s other claims are premised on his

alleged actual innocence, they fail for the same reason.

However, Blumberg’s procedural due process and conspiracy claims are

premised at least in part on “Brady violations” and “fabrication of evidence” in

Blumberg’s 1998 conviction, which has been reversed, and his later guilty plea

may have been “completely insulated from” defendants’ alleged violations.

Jackson v. Barnes, 749 F.3d 755, 759-60 (9th Cir. 2014) (Fifth Amendment

violation claims against county sheriff’s department and deputy were not Heck-

barred because the criminal defendant was reconvicted without use of the evidence

obtained in violation of his constitutional rights). We therefore reverse and remand

for the district court to consider if and to what extent Blumberg’s plea to the crime

of attempted murder affects his § 1983 claims. See Rosales-Martinez v. Palmer,

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753 F.3d 890, 899 (9th Cir. 2014) (remanding for the district court to consider,

among other things, whether facts allocuted to by plaintiff as part of his guilty plea

are inconsistent with the allegations of plaintiff’s § 1983 action).

To the extent that Blumberg’s claims against defendant Hewitt arise from

Hewitt’s alleged perjury, dismissal of Blumberg’s claims was proper because

absolute immunity protects a police officer testifying as a witness. See Paine v.

City of Lompoc, 265 F.3d 975, 981-82 (9th Cir. 2001) (discussing witness

immunity).

The parties shall bear their own costs on appeal.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

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