Paul Blumberg v. Brian Hewitt

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
SEP 06 2017
No. 15-56216 MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
PAUL BLUMBERG,
D.C. No. 2:10-cv-05072-R-AJW
Plaintiff - Appellant,

v. MEMORANDUM*

BRIAN HEWITT, BRAD FOSS,
CITY OF LOS ANGELES,
COUNTY OF LOS ANGELES,

Defendants - Appellees.

Appeal from the United States District Court
for the Central District of California,
Manuel L. Real, District Judge, Presiding

Argued and Submitted April 6, 2017
Pasadena, California

Before: McKEOWN and CALLAHAN, Circuit Judges, and QUIST,
District Judge**

Plaintiff, Paul Blumberg, appeals the district court’s order granting

Defendants’ motions to dismiss. Blumberg had been convicted in state court in a

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Gordon J. Quist, Senior District Judge for the United States
Court for the Western District of Michigan, sitting by designation.
1998 trial at which the individual defendants in the instant case testified. After

exhausting state remedies, Blumberg’s conviction and sentence were overturned on

habeas review. Blumberg v. Garcia, 687 F. Supp. 2d 1074, 1141 (C.D. Cal. 2010).

Blumberg then filed a complaint under 42 U.S.C. § 1983, alleging that Defendants

violated his right to due process by testifying falsely and suppressing favorable

material evidence. While his § 1983 case was pending, Blumberg pled guilty to

the same attempted murder and, pursuant to a plea agreement, was sentenced to

time served. The district court dismissed the claims as barred by Heck v.

Humphrey, 512 U.S. 477 (1994). Blumberg v. Hewitt, No. CV 10-5072 GAF

(AJWx), 2012 WL 12882723 (C.D. Cal. July 26, 2012). We reversed and

remanded, directing the district court to consider the case in light of Jackson v.

Barnes, 749 F.3d 755 (9th Cir. 2014), and Rosales-Martinez v. Palmer, 753 F.3d

890 (9th Cir. 2014). Blumberg v. Hewitt, 599 F. App’x 715 (9th Cir. 2015).

Blumberg moved to amend his operative complaint, which had been filed before he

entered a guilty plea. The district court, without ruling on the motion to amend,

again dismissed the § 1983 claims as Heck-barred.

The key language in Heck is:

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,

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 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. Thus, when 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. But if 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.

512 U.S. at 486–87 (footnotes omitted).

When Blumberg’s habeas petition was granted, his original conviction was

vacated. Garcia, 687 F. Supp. 2d at 1141. Therefore, Blumberg’s § 1983 claims

do not implicate the validity of that conviction, as it has already been “called into

question by a federal court’s issuance of a writ of habeas corpus.” Heck, 512 U.S.

at 487. Resolving whether Blumberg’s § 1983 claims are barred by Heck depends

on the interplay between those claims and his subsequent guilty plea. See Jackson,

749 F.3d at 759–60.

The district court did not address whether Blumberg’s § 1983 claims

necessarily imply the invalidity of his subsequent guilty plea. Instead, the district

court simply stated that his claims “necessarily require demonstration of

[Blumberg’s] alleged innocence.” However, neither Brady v. Maryland, 373 U.S.

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83 (1963), nor Napue v. Illinois, 360 U.S. 264 (1959), requires actual innocence.

See Soto v. Ryan, 760 F.3d 947, 958 (9th Cir. 2014); Osborne v. Dist. Attorney’s

Office for the Third Judicial Dist., 521 F.3d 1118, 1134 (9th Cir. 2008), rev’d on

other grounds, 557 U.S. 52 (2009).

The district court abused its discretion by dismissing these claims without

the opportunity to amend because, first, Blumberg’s § 1983 complaint was filed

before his guilty plea and, second, dismissal without leave to amend is generally

improper unless the complaint “could not be saved by amendment.” Eminence

Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). Without

comparing a proposed amended complaint against Blumberg’s subsequent guilty

plea, we cannot determine whether amendment would be futile.1

Although we denied on appeal Defendants’ motion for judicial notice of

certain documents, we make no comment on the appropriateness of those

documents to the district court’s decision on remand.

REVERSED AND REMANDED.

1
At oral argument, Blumberg conceded that under his theory for proceeding,
he would not be entitled to compensatory damages.
4