Francisco Duarte v. City of Stockton ( 2023 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANCISCO DUARTE, No. 21-16929
Plaintiff-Appellant, D.C. No. 2:19-cv-
00007-MCE-CKD
and
ALEJANDRO GUTIERREZ, OPINION
Plaintiff,
v.
CITY OF STOCKTON; STOCKTON
POLICE DEPARTMENT; ERIC
JONES; KEVIN JAYE HACHLER;
ERIC B. HOWARD; MICHAEL
GANDY; CONNER NELSON;
UNDERWOOD, Sergeant,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Morrison C. England, Jr., District Judge, Presiding
Argued and Submitted November 15, 2022
San Francisco, California
2 DUARTE V. CITY OF STOCKTON
Filed February 16, 2023
Before: Johnnie B. Rawlinson and Andrew D. Hurwitz,
Circuit Judges, and Kathleen Cardone, * District Judge.
Opinion by Judge Cardone
SUMMARY **
Civil Rights
In an action brought pursuant to 42 U.S.C. § 1983, the
panel reversed the district court’s dismissal of plaintiff’s
false arrest and municipal liability claims, as well as the
district court’s adverse summary judgment on plaintiff’s
excessive force claim, and remanded for further
proceedings.
Plaintiff pled “no contest” or “nolo contendere” to
willfully resisting, obstructing, and delaying a peace officer
in violation of section 148(a)(1) of the California Penal
Code. Although plaintiff entered the equivalent of a guilty
plea, the state court never entered an order finding him guilty
of the charge to which he pleaded. Instead, the court ordered
that its acceptance of plaintiff’s plea would be “held in
abeyance,” pending his completion of ten hours of
*
The Honorable Kathleen Cardone, United States District Judge for the
Western District of Texas, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
DUARTE V. CITY OF STOCKTON 3
community service and obedience of all laws. After the six
months of abeyance elapsed, the charges against plaintiff
were “dismissed” in the “interest of justice” on the
prosecutor’s motion.
The district court held that plaintiff’s false arrest and
excessive force claims were barred by Heck v. Humphrey,
512 U.S. 477 (1994), which holds that § 1983 claims must
be dismissed if they would “necessarily require the plaintiff
to prove the unlawfulness of his conviction.” Plaintiff’s
municipal liability claims were also rejected as improperly
filed against defendants who were not “persons.”
The panel held that the Heck bar does not apply in a
situation where criminal charges are dismissed after entry of
a plea that was held in abeyance pending the defendant’s
compliance with certain conditions. The panel rejected
appellees’ argument that by pleading no contest and
completing the conditions of his agreement with the
prosecution, plaintiff was functionally convicted and
sentenced. The panel held that the Heck bar requires an
actual judgment of conviction, not its functional equivalent.
The panel further held that the district court erred in
dismissing plaintiff’s municipal liability claims against the
City of Stockton and Stockton Police
Department. Longstanding precedent establishes that both
California municipalities and police departments are
“persons” amenable to suit under § 1983. See Monell v.
Dep’t of Soc. Servs., 436 U.S. 658, 701 (1978); Karim-
Panahi v. L.A. Police Dep’t, 839 F.2d 621, 624 n.2 (9th Cir.
1988).
4 DUARTE V. CITY OF STOCKTON
COUNSEL
Elizabeth Bixby (argued) and David Oyer, Roderick &
Solange MacArthur Justice Center, Washington, D.C.;
Easha Anand, Roderick & Solange MacArthur Justice
Center, San Francisco, California; Yolanda Huang, Law
Office of Yolanda Huang, Oakland, California; for Plaintiff-
Appellant.
Dana A. Suntag (argued), Joshua J. Stevens, and Amy N.
Seilliere, Herum Crabtree Suntag, Stockton, California, for
Defendants-Appellees.
Marie L. Miller and Patrick M. Jaicomo, Institute for Justice,
Arlington, Virginia; Anya Bidwell, Institute for Justice,
Austin, Texas; for Amicus Curiae Institute for Justice.
DUARTE V. CITY OF STOCKTON 5
OPINION
CARDONE, District Judge:
In this 42 U.S.C. § 1983 action, Francisco Duarte appeals
from the dismissal of his false arrest and municipal liability
claims, as well as the adverse grant of summary judgment on
his excessive force claim. The district court held that
Duarte’s false arrest and excessive force claims were barred
by Heck v. Humphrey, 512 U.S. 477 (1994). Under Heck, §
1983 claims must be dismissed if they would “necessarily
require the plaintiff to prove the unlawfulness of his
conviction.” Id. at 486. But because Duarte was never
convicted, we find that the Heck bar does not apply.
Duarte’s municipal liability claims were also rejected as
improperly filed against defendants who were not “persons.”
But longstanding precedent establishes that both California
municipalities and police departments are “persons”
amenable to suit under § 1983. See Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 701 (1978); Karim-Panahi v. L.A.
Police Dep’t, 839 F.2d 621, 624 n.2 (9th Cir. 1988).
Accordingly, we reverse the judgment of the district court
and remand for further proceedings.
I. BACKGROUND
The following facts are undisputed unless otherwise
noted.
A. Duarte’s Arrest
On May 5, 2017, Duarte was in a public area in
downtown Stockton, California. The parties dispute how it
happened but agree that Duarte ended up standing within a
few feet of a group of Stockton police officers—including
6 DUARTE V. CITY OF STOCKTON
Michael Gandy and Kevin Jaye Hachler—who were
detaining another person. Appellees assert that Gandy twice
ordered Duarte to back up. Duarte contends that if he was
so ordered, he did not hear it. Either way, the parties agree
that Gandy forcefully took Duarte to the ground when he did
not back up.
The parties also agree that either Hachler, Gandy, or both
ordered Duarte to put his hands behind his back. Duarte
claims he was unable to do so because his hands were pinned
under him by the weight of Gandy pressing down on his
back. Appellees claim that rather than attempt to comply,
Duarte tried to pull his arm away.
The parties agree that Hachler then struck Duarte in the
leg with a baton, breaking a bone. Duarte claims that
Hachler struck him “at least six times on the same spot on
his leg.” After the encounter, Duarte was taken into custody.
B. State Criminal Proceedings
Duarte was charged with willfully resisting, obstructing,
and delaying a peace officer in violation of section 148(a)(1)
of the California Penal Code. On July 12, 2018, Duarte and
his attorney both signed and dated a document titled
“Misdemeanor Advisement of Rights, Waiver and Plea
Form” (the “Plea Form”). On the Plea Form, Duarte initialed
the statement, “I hereby freely and voluntarily plead . . . no
contest.” He also initialed several statements evincing his
understanding of his rights, the charges against him, and the
effect of entering a plea. Among those statements were the
following:
I understand that a plea of no contest (nolo
contendere) will have exactly the same effect
DUARTE V. CITY OF STOCKTON 7
in this case as a plea of guilty, but it cannot
be used against me in a civil lawsuit.
...
My decision to enter this plea has been made
freely and voluntarily. No promises or
inducements have been made in connection
with this plea except: plea in abeyance – 10
hours community service at any non-profit of
my choice. 6 month [illegible] vacate plea
and dismissal on Jan. 12, 2019 – if I fail to do
the 10 hours of community service, then CTS
& 3 years informal probation.
...
I understand that this conviction could be
used against me in the future as a prior
conviction, to increase any penalties for
future convictions, or could be used to violate
my probation or parole which has been
granted in another case.
On the same day, the court held a hearing and entered a
Minute Order, stating, “Defendant pleads Nolo Contendre
[sic] to: 1, PC 148(A)(1) . . . . Court’s acceptance of plea
held in abeyance.” 1 The Minute Order also incorporated the
conditions from the Plea Form, requiring Duarte to complete
ten hours of community service and obey all laws.
Six months later, the state court held another hearing and
entered a Minute Order, in which the “event type” was
1
The judge signed Duarte’s Plea Form beneath a paragraph stating that
“[t]he Court accepts the defendant’s plea(s) and admission(s), if any,”
but left the space for a date next to his signature blank.
8 DUARTE V. CITY OF STOCKTON
denoted “Plea Held In Abeyance,” and which ordered, “Case
dismissed upon motion of DDA, Interest of justice.”
C. Federal Civil Proceedings
On December 31, 2018, Duarte filed this § 1983 action
in the United States District Court for the Eastern District of
California, asserting claims for excessive force and false
arrest against Gandy, Hachler, Stockton Chief of Police Eric
Jones, three other Stockton police officers, and a number of
John Doe officers. Duarte also brought associated municipal
liability claims against the City of Stockton and the Stockton
Police Department.
The district court dismissed Duarte’s claims against the
City of Stockton and Stockton Police Department, and the
false arrest claims against the individual defendants. It
found that neither municipal entity was a “person” subject to
suit under § 1983 and dismissed the false arrest claim as
barred under Heck. After discovery, the district court
granted summary judgment to the police officers on Duarte’s
claim for excessive force, finding it was also Heck-barred.
This timely appeal followed. We have jurisdiction
pursuant to 28 U.S.C. § 1291. See Hall v. City of Los
Angeles, 697 F.3d 1059, 1070 (9th Cir. 2012).
II. DISCUSSION
A. Standard of Review
“We review de novo a district court’s grant or denial of
summary judgment. We also review de novo a district
court’s grant of a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6).” Lopez-Valenzuela v. Arpaio, 770
F.3d 772, 777 (9th Cir. 2014) (en banc) (internal citations
omitted).
DUARTE V. CITY OF STOCKTON 9
B. Excessive Force and False Arrest Claims
We have never considered whether the Heck bar applies
when criminal charges were dismissed after entry of a plea
that was held in abeyance pending the defendant’s
compliance with certain conditions. We hold that Heck does
not apply in this situation.
1. The Heck Doctrine
The Supreme Court framed its Heck decision as standing
“at the intersection” of 42 U.S.C. § 1983 and 28 U.S.C. §
2254. See Heck, 512 U.S. at 480–81. Section 1983 provides
a cause of action against state actors who commit
constitutional violations, while § 2254 authorizes habeas
corpus relief from unconstitutional state detention. Id. A
habeas petitioner must first exhaust state remedies, while a
§ 1983 plaintiff need not. Id. A tension thus arises between
the two laws “when establishing the basis for [a § 1983]
damages claim necessarily demonstrates the invalidity of [a]
conviction.” Id. at 481–82.
Resolving that tension, Heck held 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 . . . . A claim for damages bearing that
10 DUARTE V. CITY OF STOCKTON
relationship to a conviction or sentence that
has not been so invalidated is not cognizable
under § 1983.
Id. at 486–87 (footnote omitted); see also Jackson v. Barnes,
749 F.3d 755, 759–60 (9th Cir. 2014) (quoting Heck, 512
U.S. at 486–87). 2
But “[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.” Heck, 512 U.S. at
487 (footnotes omitted). In other words, “the Heck rule . . .
is called into play only when there exists ‘a conviction or
sentence that has not been . . . invalidated,’ that is to say, an
‘outstanding criminal judgment.’” Wallace v. Kato, 549
U.S. 384, 393 (2007) (quoting Heck, 512 U.S. at 486–87);
accord Roberts v. City of Fairbanks, 947 F.3d 1191, 1198
(9th Cir. 2020).
2. Heck does not apply because Duarte was never
convicted.
Duarte argues that Heck does not apply because the
criminal charges against him were dismissed without entry
of a conviction. Appellees argue Heck should nevertheless
apply because by pleading no contest and completing the
conditions of his agreement with the prosecution, Duarte
2
The holding was confined to claims for money damages. The Court
had previously held that “habeas corpus is the exclusive remedy for a
state prisoner who challenges the fact or duration of his confinement and
seeks immediate or speedier release, even though such a claim may come
within the literal terms of § 1983.” Heck, 512 U.S. at 481 (citing Preiser
v. Rodriguez, 411 U.S. 475, 488–90 (1973)).
DUARTE V. CITY OF STOCKTON 11
was functionally convicted and sentenced.
The Heck bar, however, requires an actual judgment of
conviction, not its functional equivalent. Wallace, 549 U.S.
at 393; Roberts, 947 F.3d at 1198 (“The absence of a
criminal judgment [] renders the Heck bar inapplicable; the
plain language of the decision requires the existence of a
conviction in order for a § 1983 suit to be barred.” (citing
Heck, 512 U.S. at 487)); Martin v. City of Boise, 920 F.3d
584, 613 (9th Cir. 2019) (“Where there is no ‘conviction or
sentence’ that may be undermined by a grant of relief to the
plaintiffs, the Heck doctrine has no application.”).
Heck speaks of challenges that would impugn “a
conviction or sentence,” see Heck, 512 U.S. at 486–87
(emphasis added), and Appellees argue that Duarte was
effectively sentenced to completing the terms of his plea
agreement. But a conviction is a prerequisite to a sentence.
See Sentence, Black’s Law Dictionary (11th ed. 2019) (“The
judgment that a court formally pronounces after finding a
criminal defendant guilty; the punishment imposed on a
criminal wrongdoer . . . . Also termed judgment of
conviction.”). Because Duarte was never convicted, he was
also never sentenced. See Mitchell v. Kirchmeier, 28 F.4th
888, 895 (8th Cir. 2022) (holding the plaintiff’s claims were
not Heck barred because he “was never convicted of—and
therefore, a fortiori, never sentenced on—the charges
against him.”); see also Blazak v. Ricketts, 971 F.2d 1408,
1413 (9th Cir. 1992) (noting, in the habeas context, “There
can be no sentence without a conviction.”).
According to Black’s Law Dictionary, the primary
definition of “conviction” is, “The act or process of
judicially finding someone guilty of a crime; the state of
having been proved guilty.” Conviction, Black’s Law
12 DUARTE V. CITY OF STOCKTON
Dictionary (11th ed. 2019). A secondary definition is, “The
judgment (as by a jury verdict) that a person is guilty of a
crime.” Id. Applying these definitions to the case at hand
yields a straightforward result: Duarte was not convicted
because he was never found or proved guilty. See id.To be sure, Duarte pleaded “no contest” or “nolo
contendere” to the resisting arrest charge. And, under
California law, a court ordinarily “shall find the defendant
guilty” upon entry of such a plea, which is “considered the
same as a plea of guilty.” Cal. Penal Code § 1016(3). But
this only serves to underscore that a plea itself is not a
conviction. A plea is entered by the criminal defendant, but
a conviction does not follow without a subsequent order
from the court. See id. Indeed, California law provides for
several pretrial diversion programs, with terms akin to those
in the agreement entered by Duarte, in which this distinction
is highlighted. See, e.g., id. § 1000.10(a) (“A defendant’s
plea of guilty shall not constitute a conviction for any
purpose unless a judgment of guilty is entered . . . .”).
Although Duarte entered the equivalent of a guilty plea,
the state court never entered an order finding him guilty of
the charge to which he pleaded. Instead, the court ordered
that its acceptance of Duarte’s plea would be “held in
abeyance,” pending his completion of ten hours of
community service and obedience of all laws. Black’s Law
Dictionary defines “abeyance” as, “Temporary inactivity;
suspension.” Abeyance, Black’s Law Dictionary (11th ed.
2019). Suspension of the plea is not a finding of guilt or a
conviction.
After the six months of abeyance elapsed, the charges
against Duarte were “dismissed” in the “interest of justice”
on the prosecutor’s motion. A “dismissal” is the
DUARTE V. CITY OF STOCKTON 13
“[t]ermination of an action, claim, or charge without further
hearing, esp. before trial; esp. a judge’s decision to stop a
court case through the entry of an order or judgment that
imposes no civil or criminal liability on the defendant with
respect to that case.” Dismissal, Black’s Law Dictionary
(11th ed. 2019). Dismissal, which imposes no criminal
liability, is thus the opposite of a conviction, which imposes
such liability. See Vasquez Arroyo v. Starks, 589 F.3d 1091,
1095 (10th Cir. 2009); see also People v. Hernandez, 994
P.2d 354, 359, 361 (Cal. 2000) (noting that “furtherance of
justice” dismissals “cut[] off an action or a part of an action
against the defendant”). Because the charges against Duarte
were dismissed, he was never convicted. And because there
is no conviction that Duarte’s § 1983 claims would impugn,
Heck is inapplicable.
Our conclusion is consistent with the majority of circuits
to consider Heck in the context of pretrial diversion
agreements. The Sixth, Eighth, Tenth, and Eleventh Circuits
have all held that where the conditions of the agreement are
satisfied and the criminal charges are dismissed without
entry of conviction, Heck does not bar subsequent civil rights
claims. See Mitchell, 28 F.4th at 895–96; Vasquez Arroyo,
589 F.3d at 1093–96; S.E. v. Grant Cnty. Bd. of Educ., 544
F.3d 633, 637–39 (6th Cir. 2008); McClish v. Nugent, 483
F.3d 1231, 1250–52 (11th Cir. 2007).
The district court relied on a contrary decision by the
Third Circuit, which held that the plaintiff’s civil rights
claims were Heck-barred even though he had never been
formally convicted in the state criminal proceedings. See
Gilles v. Davis, 427 F.3d 197, 208–12 (3d Cir. 2005). But
for the reasons explained above, we find Gilles
unpersuasive. Moreover, Gilles predated Wallace, in which
the Supreme Court explicitly rejected an argument that
14 DUARTE V. CITY OF STOCKTON
Gilles appears to embrace—that § 1983 claims inconsistent
with ongoing criminal charges, not just outstanding criminal
judgments, could be barred by Heck. See Mitchell, 28 F.4th
at 896. Compare Wallace, 549 U.S. at 393–94, with Gilles,
427 F.3d at 209.
We recognize the Fifth Circuit has also held “a deferred
adjudication order is a conviction for the purposes of Heck’s
favorable termination rule” because it is “a judicial finding
that the evidence substantiates the defendant’s guilt” and “a
final judicial act.” See DeLeon v. City of Corpus Christi, 488
F.3d 649, 655–56 (5th Cir. 2007). As explained above, we
do not adopt that logic. The final judicial act is either the
dismissal of the charges or the imposition of a sentence.
Moreover, unlike Duarte, the DeLeon plaintiff remained
under the conditions of his deferred adjudication agreement
and the criminal charges against him had not yet been
dismissed. Id. at 653. Indeed, the Fifth Circuit explicitly
declined to decide how it would apply Heck for a plaintiff
who, like Duarte, did satisfy the terms of his agreement. Id.
at 657 (“We do not decide whether DeLeon can meet the
Heck conditions . . . by successfully completing his deferred
adjudication.”).
In sum, Heck’s “core” concern is for preventing the
circumvention of habeas exhaustion requirements through
§ 1983. Martin, 920 F.3d at 615 (quoting Wilkinson v.
Dotson, 544 U.S. 74, 82 (2005)). More broadly, Heck seeks
to promote finality and consistency by “refrain[ing] from
multiplying avenues for collateral attack on criminal
judgments.” McDonough v. Smith, 139 S. Ct. 2149, 2157
(2019) (collecting cases).
Thus, the sine qua non of Heck is a judgment of
conviction and a resultant sentence. See Wallace, 549 U.S.
DUARTE V. CITY OF STOCKTON 15
at 392–93 (citing Heck, 512 U.S. at 486–87). Challenges
that cast doubt on such judgments are the province of direct
appeals or habeas—not § 1983. But where, as here, the
criminal charges were dismissed and there is no conviction
to impugn, the tension with which Heck was principally
concerned is missing. Also absent are any concerns about
finality, consistency, or comity, when there is no order in the
state criminal case with which a decision in the federal civil
lawsuit could be inconsistent. Because Duarte was never
convicted of a crime, his claims should not have been
dismissed under Heck.
C. Municipal Liability
The district court also erred in dismissing Duarte’s
claims against the City of Stockton and Stockton Police
Department. The Supreme Court first held that municipal
entities, like cities, were “persons” amenable to suit under §
1983 in its seminal decision, Monell v. Department of Social
Services, 436 U.S. 658, 690 (1978). Monell’s core
holding—that claims for municipal liability are cognizable
under the Civil Rights Act—has been affirmed many times
over by this Court and the Supreme Court. See, e.g., City of
St. Louis v. Praprotnik, 485 U.S. 112, 121 (1988); Hervey v.
Estes, 65 F.3d 784, 791 (9th Cir. 1995) (“It is beyond dispute
that a local governmental unit or municipality can be sued as
a ‘person’ under section 1983.” (citing Monell, 436 U.S. at
690)).
As to the Stockton Police Department, we held over
thirty years ago that municipal police departments in
California “can be sued in federal court for alleged civil
rights violations.” Karim-Panahi v. L.A. Police Dep’t, 839
F.2d 621, 624 n.2 (9th Cir. 1988) (citations omitted). More
recently, we reaffirmed this holding and extended it to
16 DUARTE V. CITY OF STOCKTON
California’s county sheriffs’ departments. Streit v. County
of Los Angeles, 236 F.3d 552, 565–66 (9th Cir. 2001). We
have never overruled Karim-Panahi.
The district court reasoned that Karim-Panahi could not
be reconciled with a concurring opinion in United States v.
Kama, 394 F.3d 1236, 1240 (9th Cir. 2005). There, without
citing Karim-Panahi or Streit, a judge commented that
“municipal police departments and bureaus are generally not
considered ‘persons’ within the meaning of 42 U.S.C.
§ 1983.” Kama, 394 F.3d at 1239–40 (Ferguson, J.,
concurring).
But “concurring opinions have no binding precedential
value.” Pub. Watchdogs v. S. Cal. Edison Co., 984 F.3d 744,
757 n.7 (9th Cir. 2020) (citing Maryland v. Wilson, 519 U.S.
408, 412–13 (1997)). And “as a general rule, one three-
judge panel of this court cannot reconsider or overrule the
decision of a prior panel.” Koerner v. Grigas, 328 F.3d
1039, 1050 (9th Cir. 2003) (quoting United States v. Gay,
967 F.2d 322, 327 (9th Cir. 1992)). Therefore, when a
subsequent panel makes a “suggestion” that “is inconsistent
with earlier opinions of this court,” such suggestions are to
be disregarded in favor of the earlier, binding holding. See,
e.g., Ass’n of Mexican-Am. Educators v. California, 231
F.3d 572, 592 (9th Cir. 2000).
Neither a lone concurring judge nor the full Kama panel
could overrule Karim-Pahani. See Koerner, 328 F.3d at
1050. Nor can we. See id. The district judge’s
determination that the City of Stockton and Stockton Police
DUARTE V. CITY OF STOCKTON 17
Department are not persons within the meaning of § 1983 is
reversed. 3
III. CONCLUSION
We reverse the district court’s dismissal of Duarte’s false
arrest and municipal liability claims. We also reverse the
summary judgment in favor of the individual Appellees on
Duarte’s excessive force claim. We remand for further
proceedings consistent with this opinion.
REVERSED AND REMANDED.
3
We decline to reach Appellees’ other arguments for dismissal of the
municipal liability claims, which were raised for the first time on appeal.
See Henry A. v. Willden, 678 F.3d 991, 999 n.5 (9th Cir. 2012) (citing
Mansourian v. Regents of Univ. of Cal., 602 F.3d 957, 974 (9th Cir.
2010)).