Weilburg v. Shapiro

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

DARO WEILBURG; and MARIA 
WEILBURG,
Plaintiffs-Appellants,
v. No. 05-15540
D.C. No.
DAVID SHAPIRO, Deputy County
Attorney; ARTHUR MARKHAM,  CV 05-0048-PGR-
Justice of the Peace; JOHN DOE, DKD
Sheriff of Yavapai County; JOHN OPINION
DOE’S A-Z, Yavapai County Jail;
and the STATE OF ARIZONA,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Arizona
Paul G. Rosenblatt, District Judge, Presiding

Submitted February 16, 2007*
San Francisco, California

Filed June 1, 2007

Before: Ronald M. Gould and Johnnie B. Rawlinson,
Circuit Judges, and Alfred V. Covello,** District Judge.

Opinion by Judge Covello

*This panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
**The Honorable Alfred V. Covello, Senior United States District
Judge for the District of Connecticut, sitting by designation.

6657
 WEILBURG v. SHAPIRO 6659

COUNSEL

The plaintiffs-appellants, Daro Weilburg and Maria Weilburg,
proceeding pro se.

Terry Goddard, Arizona Attorney General, Phoenix, Arizona;
and Daniel P. Schaack, Assistant Attorney General, Phoenix,
Arizona, for defendant-appellee the State of Arizona.

Randall H. Warner, Phoenix, Arizona, for defendants-
appellees David Shapiro, Arthur Markham, and the Yavapai
County Sheriff.

OPINION

COVELLO, District Judge:

This is an appeal of the district court’s sua sponte dismissal
of an action for damages brought pursuant to 42 U.S.C.
§ 1983 (“section 1983”).1 The pro se plaintiffs, Daro

1
“Every person who, under color of [law] . . . , subjects, or causes to
be subjected, any citizen of the United States or other person within the
jurisdiction thereof to the deprivation of any rights . . . secured by the
Constitution and laws, shall be liable to the party injured in an action at
law . . . .” 42 U.S.C. § 1983.
6660 WEILBURG v. SHAPIRO
Weilburg and Maria Weilburg (“Weilburgs”), allege that the
State of Arizona and various officials in Yavapai County, Ari-
zona, extradited Daro Weilburg from Arizona to Illinois in
violation of state and federal statutes, thereby violating Daro
Weilburg’s right to procedural due process.

The issue presented is whether the United States Supreme
Court’s ruling in Heck v. Humphrey, 512 U.S. 477 (1994),
bars prospective plaintiffs, who have not otherwise success-
fully challenged their underlying convictions, from bringing
section 1983 actions that are based upon a violation of extra-
dition law.

For the reasons set forth hereinafter, we vacate the judg-
ment of the district court, and order the case remanded to the
United States District Court for the District of Arizona for fur-
ther proceedings consistent with this opinion.

I. FACTS

Unless otherwise indicated, an examination of the com-
plaint, as well as the exhibits attached thereto, discloses the
following.

In 1999, an Illinois state court convicted the plaintiff, Daro
Weilburg, of felony theft. Weilburg failed to appear at his
sentencing hearing. The court sentenced him, in absentia, to
a term of imprisonment of seven years. Subsequently, an Illi-
nois grand jury indicted Weilburg for violating a bail bond,
also a felony. On the basis of this indictment, authorities
issued an arrest warrant for Weilburg.

On June 26, 2003, during a traffic stop in Arizona, police
officers arrested Weilburg pursuant to that outstanding war-
rant. After a series of extradition proceedings in Arizona
superior court, authorities returned Weilburg to Illinois.
 WEILBURG v. SHAPIRO 6661
On January 4, 2005, Weilburg and his wife, Maria Weil-
burg, proceeding pro se, filed an action for damages in the
United States District Court for the District of Arizona, pursu-
ant to 42 U.S.C. § 1983. The complaint alleges numerous
irregularities in connection with the procedures pursuant to
which authorities extradited Daro Weilburg to Illinois.2

On February 14, 2005, before the defendants appeared in
this case, the district court dismissed the action pursuant to 28
U.S.C. § 1915A.3 The court concluded that the “Plaintiff’s
claims are based upon a belief that Mr. Weilburg was wrong-
fully arrested, extradited and incarcerated to serve his sen-
tence for theft and to be prosecuted for the bond violation”
and as such, the complaint failed to state a claim upon which
relief could be granted. Relying on Heck v. Humphrey, the
district court held that in order to bring a section 1983 action
alleging unlawful conviction or imprisonment, a “plaintiff
must prove the [original underlying] conviction or sentence
has been reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal . . . , or called into
question by a federal court’s issuance of a writ of habeas cor-
pus.” The district court concluded that because the Weilburgs
“have not done so, their § 1983 action is premature.”

On February 25, 2005, the Weilburgs moved for reconsid-
eration of the order of dismissal. They asserted that the dis-
trict court’s reliance on Heck v. Humphrey was misplaced, as
they had “not sought damages for an unconstitutional convic-
tion or imprisonment.” Rather, they argued that the “gist of
2
Additionally, the complaint appears to assert that Daro Weilburg was
not a fugitive when extradited, because the statute of limitations allegedly
had run with respect to his bail violation charge.
3
“The court shall review . . . a complaint in a civil action in which a
prisoner seeks redress from a governmental entity or officer or employee
of a governmental entity . . . . On review, the court shall identify cogniza-
ble claims or dismiss the complaint, or any portion of the complaint, if the
complaint . . . fails to state a claim upon which relief may be granted . . . .”
28 U.S.C. §§ 1915A(a), (b).
6662 WEILBURG v. SHAPIRO
the plaintiffs’ complaint hinges on violations of procedural
due process protected by the Uniform Criminal Extradition
Act,” Ariz. Rev. Stat. § 13-3841 et seq., and the federal extra-
dition procedures statute, 18 U.S.C. § 3182. On March 9,
2005, the district court denied the motion for reconsideration,
maintaining that “this type of challenge concerns the legality
of [Daro Weilburg’s] detention and must initially be brought
in habeas corpus after exhausting available state court reme-
dies.”

On March 21, 2005, the Weilburgs filed their notice of
appeal of the district court’s dismissal of this action.

II. STANDARD OF REVIEW

We “review[ ] de novo a district court’s dismissal of a com-
plaint under 28 U.S.C. § 1915A for failure to state a claim
upon which relief can be granted.” Resnick v. Hayes, 213 F.3d
443, 447 (9th Cir. 2000). In reviewing a dismissal for failure
to state a claim, the court accepts all factual allegations in the
complaint as true and draws all reasonable inferences in favor
of the plaintiff. Oki Semiconductor Co. v. Wells Fargo Bank,
298 F.3d 768, 772 (9th Cir. 2002). Pro se complaints are to
be construed liberally and “may be dismissed for failure to
state a claim only where ‘it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.’ ” Franklin v. Murphy, 745
F.2d 1221, 1228, 1230 (9th Cir. 1984) (quoting Haines v.
Kerner, 404 U.S. 519, 520-21 (1972)). “Dismissal of a pro se
complaint without leave to amend is proper only if it is abso-
lutely clear that the deficiencies of the complaint could not be
cured by amendment.” Schucker v. Rockwood, 846 F.2d 1202,
1203-04 (9th Cir. 1988) (internal quotation marks and citation
omitted).

III. DISCUSSION

The Weilburgs argue that because their cause of action
alleges violations of extradition procedures, this case is not
 WEILBURG v. SHAPIRO 6663
barred by the Supreme Court’s holding in Heck v. Humphrey.
Specifically, “[t]he appellant-plaintiffs do not seek damages
for reaching the wrong results regarding conviction and sen-
tence, they seek damages for refusal by the appellee-
defendants to follow procedures.”

The defendants initially did not respond, presumably
because none of them had previously appeared in this action.
In response to this court’s order to file a brief, however, the
State of Arizona filed a two-page letter brief that did not
address the applicability of Heck v. Humphrey to the present
case, but rather asserted various defenses that the district court
did not address below. David Shapiro, Arthur Markham, and
the Yavapai County Sheriff, also defendants in this case, like-
wise filed a letter brief, raising defenses not considered
below. They do, however, address the applicability of Heck,
largely echoing the reasoning of the district court, and con-
tend generally that those cases that have held that Heck is
inapplicable in this context are “inconsistent with Ninth Cir-
cuit precedent.”

[1] In Heck v. Humphrey, in a challenge to the validity to
his underlying conviction, a prisoner initiated a section 1983
action, alleging that the defendants, police officers and prose-
cutors, employed improper investigative techniques,
destroyed evidence, and used unlawful identification proce-
dures, resulting in the prisoner’s conviction and imprison-
ment. Heck, 512 U.S. at 478-79. The United States Supreme
Court affirmed the lower court’s dismissal of the action, and
held that

in order to recover damages for allegedly unconstitu-
tional 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
6664 WEILBURG v. SHAPIRO
to make such determination, or called into question
by a federal court’s issuance of a writ of habeas cor-
pus, 28 U.S.C. § 2254.

Id. at 490, 486-87 (internal footnotes omitted) (emphasis
added). The Supreme Court directed that “when a state pris-
oner 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 sen-
tence.” Id. at 487. “[I]f the district court determines that the
plaintiff’s action, even if successful, will not demonstrate the
invalidity of any outstanding criminal judgment against the
plaintiff, the action should be allowed to proceed, in the
absence of some other bar to the suit.” Id. (internal footnotes
omitted).

[2] We conclude that Heck v. Humphrey is not a bar to the
present action. By the very specific language contained
therein, Heck v. Humphrey applies only to those cases in
which a complaint alleges that a defendant engaged in con-
duct “whose unlawfulness would render a conviction or sen-
tence invalid.” Id. at 486. The holding in Heck applies only
where “a judgment in favor of the plaintiff would necessarily
imply the invalidity of his conviction or sentence.” Id. at 487.

[3] Here, the gravamen of the complaint is that the defen-
dants returned Weilburg to Illinois in violation of state and
federal law, by ignoring established extradition procedures
and effectively kidnapping Weilburg. Such allegations, if
proven, would not invalidate Weilburg’s incarceration in Illi-
nois. To the contrary, “[t]here is nothing in the Constitution
that requires a court to permit a guilty person rightfully con-
victed to escape justice because he was brought to trial against
his will.” Frisbie v. Collins, 342 U.S. 519, 522 (1952). “An
illegal arrest, without more, has never been viewed as a bar
to subsequent prosecution, nor as a defense to a valid convic-
tion.” United States v. Crews, 445 U.S. 463, 474 (1980) (cit-
ing Gerstein v. Pugh, 420 U.S. 103, 119 (1975); Frisbie, 342
 WEILBURG v. SHAPIRO 6665
U.S. at 522; Ker v. Illinois, 119 U.S. 436, 443-44 (1886)). Nor
is invalid extradition a sufficient ground upon which to grant
habeas relief once the fugitive is present in the jurisdiction
from which he fled. See Hudson v. Moran, 760 F.2d 1027,
1029 (9th Cir. 1985); Siegel v. Edwards, 566 F.2d 958, 960
(5th Cir. 1978) (per curiam).

[4] To the extent that the complaint in the present case
alleges violations of extradition law, such allegations, if
proven, would not invalidate Daro Weilburg’s incarceration.
Therefore, with respect to these allegations, Heck v. Hum-
phrey does not apply.4 In reaching this conclusion, we join the
majority of those courts that have confronted this issue in
published dispositions. See Young v. Nickols, 413 F.3d 416,
420 (4th Cir. 2005) (holding that “Heck does not bar [the
plaintiff] from invoking § 1983 to assert a claim for damages
against the . . . defendants for violating his extradition
rights”); Harden v. Pataki, 320 F.3d 1289, 1298 (11th Cir.
2003) (holding “that Heck does not bar most § 1983 damages
claims based on improper extradition”); contra Knowlin v.
Thompson, 207 F.3d 907, 908-09 (7th Cir. 2000) (holding
that Heck does bar such claims).

The legal effect of the factual circumstances alleged here
are better illuminated by this court’s holding in Draper v.
Coombs, 792 F.2d 915 (9th Cir. 1986). In Draper, a plaintiff
4
In addition to asserting violations of extradition law, the Weilburgs
also appear to allege that because the statute of limitations had run with
respect to Daro Weilburg’s bond violation charge, the defendants illegally
imprisoned him. As to an allegation of this character, “a judgment in favor
of the plaintiff would necessarily imply the invalidity of his conviction or
sentence.” Heck, 512 U.S. at 487. As such, with respect to this specific
allegation, we conclude that Heck is applicable, and that dismissal was
proper. Nevertheless, the dismissal should have been without prejudice so
as to permit the Weilburgs to bring an action anew with respect to this one
allegation in the event that Daro Weilburg ever succeeds in invalidating
the underlying bond violation charge. See Trimble v. City of Santa Rosa,
49 F.3d 583, 585 (9th Cir. 1995) (per curiam).
6666 WEILBURG v. SHAPIRO
brought a section 1983 action against law enforcement offi-
cials after they transported him from Oregon to Washington
state, allegedly in violation of state and federal extradition
laws. Id. at 917. This court reversed the district court’s dis-
missal of the complaint, and held that “[i]n light of the nature
and purpose of the [federal] extradition statute, . . . a claim
alleging its violation by state or local police officers states a
cause of action under section 1983.” Id. at 920. The court fur-
ther stated “that a violation of state extradition law can serve
as the basis of a section 1983 action.” Id. at 921. Moreover,
the Draper court concluded that it was not material whether
the government ultimately convicted the plaintiff of the
underlying crime for which it sought his extradition. See id.
at 921-22. Although such a conviction might indicate that the
plaintiff would be unable to prove actual damages, the court
noted that he might still be entitled to nominal damages, and
as such, “his complaint stated valid section 1983 claims.” Id.
at 922.

[5] Because we hold that Heck v. Humphrey is inapposite
here, Draper v. Coombs constitutes the law of this circuit in
this context. See Cerrato v. San Francisco Cmty. Coll. Dist.,
26 F.3d 968, 972 n.15 (9th Cir. 1994) (“In the absence of an
en banc reversal or an intervening Supreme Court decision,
. . . we are bound by circuit law.”). Therefore, with respect to
those allegations that the defendants violated state and federal
extradition statutes, we vacate the judgment of the district
court, and remand this action for further proceedings consis-
tent with this opinion.5
5
Notably, we specifically do not address the defenses raised by the
defendants for the first time in their briefs, nor any number of issues not
resolved below, including whether the facts alleged in the complaint suffi-
ciently state a cause of action under Draper, the extent to which the doc-
trines of absolute or qualified immunity apply here, and whether either
Daro Weilburg or Maria Weilburg can possibly prove that the defendants
have caused any damages. Because this action terminated at such an early
stage in the proceedings, we do not render an opinion as to these issues,
but rather leave it to the district court in the first instance to resolve these
matters, should they arise.
 WEILBURG v. SHAPIRO 6667
VACATED and REMANDED.