Whitaker v. Garcetti , 486 F.3d 572 ( 2007 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JACK N. WHITAKER; RAMON 
PORTILLO, aka Candido Gutierrez-
Elenes; AVELINO AVALOS; EDUARDO
MARTINEZ; VIRGINIA DELGADO, aka
Edna Cabrera; RICARDO CARRIZOZA,
aka Vicente Lopez-Carrizoza;
LAURO ROCHA GAXIOLA; ANTONIO
ROCHA GASTELUM,
Plaintiffs-Appellees,
v. No. 05-55629
GIL GARCETTI; CURTIS A. HAZELL;  D.C. No.
DAVID DEMERJIAN; JASON LUSTIG; CV-99-08196-WJR
COUNTY OF LOS ANGELES,
Defendants-Appellants,
and
WILLIE WILLIAMS; DAN HARDEN;
HORACIO MARCO; CHUCK
LIVINGSTON; KEITH LEWIS; CITY OF
LOS ANGELES,
Defendants.

5409
5410 WHITAKER v. GARCETTI
JACK N. WHITAKER; RAMON 
PORTILLO, aka Candido Gutierrez-
Elenes; AVELINO AVALOS; EDUARDO
MARTINEZ; VIRGINIA DELGADO, aka
Edna Cabrera; RICARDO CARRIZOZA,
aka Vicente Lopez-Carrizoza;
LAURO ROCHA GAXIOLA; ANTONIO
No. 05-55690
ROCHA GASTELUM,
Plaintiffs-Appellants,
 D.C. No.
CV-99-08196-WJR
v.
OPINION
GIL GARCETTI; CURTIS A. HAZELL;
DAVID DEMERJIAN; JASON LUSTIG;
COUNTY OF LOS ANGELES; WILLIE
WILLIAMS; DAN HARDEN; HORACIO
MARCO; CHUCK LIVINGSTON; KEITH
LEWIS; CITY OF LOS ANGELES,
Defendants-Appellees,

Appeals from the United States District Court
for the Central District of California
William J. Rea, District Judge, Presiding
Argued and Submitted
March 5, 2007—Pasadena, California
Filed May 10, 2007
Before: Thomas G. Nelson, Susan P. Graber, and
Sandra S. Ikuta, Circuit Judges.
Opinion by Judge Graber
5414 WHITAKER v. GARCETTI
COUNSEL
Alison M. Turner, Greines, Martin, Stein & Richland LLP,
Los Angeles, California, and Lisa S. Berger, Deputy City
Attorney, Los Angeles, California, for the defendants-
appellants-cross-appellees.
Philip A. DeMassa, San Diego, California, for the plaintiffs-
appellees-cross-appellants.
OPINION
GRABER, Circuit Judge:
Eight individual Plaintiffs allege that Defendants, who are
individuals and entities associated with the City and County
of Los Angeles, intercepted Plaintiffs’ telephone calls after
having obtained wiretap authorizations by using falsified war-
rant applications. Plaintiffs also allege that Defendants uncon-
stitutionally concealed the existence of the wiretaps by using
WHITAKER v. GARCETTI 5415
a “handoff” procedure. Plaintiffs sued Defendants under 42
U.S.C. § 1983 for declaratory and monetary relief.1 The dis-
trict court granted summary judgment to Plaintiffs on their
claim for declaratory relief on the handoff procedure, ruling
that the procedure violates the Fourth Amendment. The dis-
trict court granted summary judgment to Defendants on Plain-
tiffs’ claims for monetary relief, ruling that Heck v.
Humphrey, 512 U.S. 477 (1994), barred Plaintiffs’ claim for
damages from the alleged warrant falsification and that
Defendants were entitled to qualified immunity on Plaintiffs’
claim for damages from the handoff procedure. We hold that
Plaintiff Whitaker’s claim alleging that the wiretap that inter-
cepted his telephone call was obtained using a falsified war-
rant application may proceed against Defendants Williams,
Lewis, Garcetti, Demerjian, the City of Los Angeles, and the
County of Los Angeles; none of the other claims can survive.
FACTUAL AND PROCEDURAL HISTORY
A. Overview
This case involves three sets of Plaintiffs and two sets of
Defendants:
— Plaintiff Jack Whitaker, a lawyer;
— Plaintiffs Ramon Portillo, Avelino Avalos,
Eduardo Martinez, Virginia Delgado, and
Ricardo Carrizoza (“Portillo Plaintiffs”), who
possessed 60 kilograms of cocaine;
— Plaintiffs Lauro Gaxiola and Antonio Gastelum,
who possessed 190 kilograms of cocaine;
1
Plaintiffs also sued under California law. Some Plaintiffs procedurally
defaulted the state law claims. A jury found in favor of Defendants on the
remaining state law claims, and no Plaintiff appeals that verdict. Accord-
ingly, only the federal claims are before us.
5416 WHITAKER v. GARCETTI
— Defendants Gil Garcetti, Curtis Hazell, David
Demerjian, and Jason Lustig, who worked in
the Los Angeles District Attorney’s office, and
the County of Los Angeles (“County Defen-
dants”); and
— Defendants Willie Williams, Dan Harden,
Horacio Marco, Chuck Livingston, and Keith
Lewis, who worked in the Los Angeles Police
Department, and the City of Los Angeles (“City
Defendants”).
As summarized by the district court:
The events that gave birth to the instant dispute
were two separate narcotics wiretap investigations
conducted by the Los Angeles Police Department
(“LAPD”). The first investigation revolved around
Downey Communications (“Downey” and “the
Downey wiretaps”), while the second revolved
around the Atel Cellular and Pager Company (“Atel”
and “the Atel wiretaps”). LAPD investigators sup-
posedly suspected these companies of facilitating
drug deals by providing cellular telephone and digi-
tal paging services to narcotics traffickers and
money launderers. The Defendants then submitted to
the Los Angeles Superior Court applications for
wiretap orders, which included sworn affidavits in
order to establish probable cause against Downey
and Atel. In relying on the sworn statements within
the affidavits, the Superior Court issued wiretap
orders for the Downey and Atel wiretaps. Thus, the
wiretaps were supposedly designed to further inves-
tigate the suspected criminal activity of Downey
Communications and Atel Cellular and Pager Com-
pany, and their respective principals and employees.
. . . The Los Angeles Superior Court granted the
application to intercept nine telephone lines [of
WHITAKER v. GARCETTI 5417
Downey] on November 8, 1994. Due to the numer-
ous extensions of the wiretap order and expansions
in the number of telephone lines tapped, Defendants
intercepted over 30,000 conversations that took
place across thirty Downey telephone lines for a
duration of 11 months.
. . . The Los Angeles Superior Court granted the
application to intercept twenty-two telephone lines
[of Atel] on May 21, 1996. Due to the myriad of
extensions sought and obtained, Defendants were
able to intercept dozens of thousands of conversa-
tions over the course of twenty-two months.
. . . [T]he Downey and Atel wiretaps uncovered
substantial criminal activity, although none on the
part of any of the putatively targeted parties. While
intercepting calls pursuant to these broad and endur-
ing wiretaps, Defendants became aware of suspi-
cious conduct on the part of Plaintiffs, although none
of the Plaintiffs were so much as named in the wire-
tap orders or under investigation by the LAPD at the
time of the orders. In other words, Plaintiffs were
mere clients of Downey or Atel, or merely involved
in conversations with clients of Downey or Atel, but
as a result of the two wiretaps, were indirectly sub-
jected to electronic surveillance. These electronic
surveillances served as the soil out of which the
investigations against Plaintiffs originally grew.
Whitaker v. Garcetti, 291 F. Supp. 2d 1132, 1136-37 (C.D.
Cal. 2003) (footnotes omitted).
Plaintiffs allege that Defendants intentionally concealed the
existence of the wiretaps from them through the use of a
“handoff” procedure. By Defendants’ own admission,
[t]he logistics of the procedure are rather simple. An
investigative unit applies for and obtains a wiretap
5418 WHITAKER v. GARCETTI
order from a judge. Pursuant to the wiretap order, the
investigative unit conducts electronic surveillance
and gathers specific evidence of imminent criminal
conduct. Rather than arriving at the scene and mak-
ing arrests after observing the criminal conduct, the
investigating unit transmits the information to
another unit without expressly stating that the deliv-
ering unit obtained the information via a wiretap.
The receiving unit is given both the specific informa-
tion gathered through the wiretap and the critical
instruction to “investigate” the conduct, which, in
law enforcement code, . . . signifies that the receiv-
ing unit should arrive at the crime scene and, rather
than execute an arrest, observe the illicit conduct in
order to obtain what law enforcement refers to as
“independent” probable cause.
Upon acquiring this so-called “independent” prob-
able cause, the receiving unit either makes an imme-
diate arrest or obtains a search warrant on the sole
basis of the so-called “independent” probable cause.
The criminally accused is then prosecuted without
ever knowing that he was subjected to the wiretap
surveillance, as no mention of the wiretap is made in
any police reports, through any discovery disclo-
sures, or by any testifying detectives at hearings or
at trial (the testifying detectives, non-coincidentally,
belong to the receiving unit). The conviction fol-
lows, yet the very existence of the wiretap is con-
cealed from the criminally accused, in order to
permit the survival of any pending investigations
revolving around the wiretap.
Id. at 1138 (footnotes omitted).
B. The Three Sets of Plaintiffs
Each set of Plaintiffs raises claims about the wiretaps and
the handoff procedure from a different perspective.
WHITAKER v. GARCETTI 5419
1. Whitaker
On May 22, 1995, Whitaker, a lawyer, received a telephone
call from a client. An LAPD detective intercepted the call.
During the conversation, Whitaker and his client discussed
plea bargaining and witness interviews. Police never arrested
Whitaker or charged him with a crime.
2. Portillo Plaintiffs
On June 18, 1997, LAPD detectives were told to surveil a
location, allegedly based on interceptions of the Portillo
Plaintiffs’ telephone calls. From the surveilled location, detec-
tives followed a vehicle to a residence. After this surveillance,
police obtained a search warrant and seized 60 kilograms of
cocaine and $124,000 in cash. Police arrested Portillo,
Avalos, Martinez, Delgado, and Carrizoza.
On October 17, 1997, the Portillo Plaintiffs pleaded guilty.
Portillo was sentenced to 10 years’ imprisonment, Avalos was
sentenced to 15 years’ imprisonment, Martinez was sentenced
to 10 years’ imprisonment, Delgado was sentenced to 182
days’ imprisonment plus 3 years of probation, and Carrizoza
was sentenced to 17 years’ imprisonment. On May 29, 1998,
the Portillo Plaintiffs’ counsel of record received notice about
the existence of the wiretaps, but the notice did not state
whether the Portillo Plaintiffs’ calls had been intercepted.
3. Gaxiola and Gastelum
On May 23, 1996, an LAPD detective was told to surveil
a location, allegedly based on interceptions of Gaxiola’s and
Gastelum’s telephone calls. From that location, the detective
followed Gastelum. After this surveillance, police obtained a
search warrant for two residences and seized 190 kilograms
of cocaine, $400,000 in cash, an assault rifle, and drug led-
gers. Police arrested Gaxiola and Gastelum.
5420 WHITAKER v. GARCETTI
In June 1997, Gaxiola and Gastelum received notice about
the wiretaps and the interception of telephone numbers that
they identified as their own. On December 16, 1998, each
pleaded guilty and was sentenced to 8 years’ imprisonment.2
C. Procedural Background
On August 12, 1999, Plaintiffs filed suit against Defendants.3
Plaintiffs sued the individual Defendants under 42 U.S.C.
§ 1983 for unlawfully intercepting their telephone calls and
for intentionally concealing the interception. Plaintiffs sued
the City and County under § 1983 for maintaining an unlaw-
ful policy, custom, practice, and usage, and for failing to
instruct, supervise, control, or discipline their employees.
Plaintiffs also brought claims against all Defendants under
California law for unlawfully intercepting their telephone
calls.
In addition to asking for damages and declaratory relief,
Plaintiffs sought a preliminary injunction against Defendants’
use of the handoff procedure. The district court denied Plain-
tiffs’ request for a preliminary injunction. In addition, the
court “dismisse[d] the § 1983 claims based on failure to pro-
vide notice of the wiretap surveillance asserted by Plaintiffs
who were unnamed [in the wiretap order application] and
overheard but not charged with the commission of a crime as
a result of the surveillance.” The district court did not identify
Whitaker by name, but this ruling applied solely to his hand-
off claim. The district court never entered judgment on its
order. Nevertheless, Plaintiffs appealed the district court’s
denial of a preliminary injunction. We affirmed the denial.
Whitaker v. Garcetti, 11 F. App’x 921, 922 (9th Cir. 2001)
(unpublished decision).
2
In its order on November 17, 2003, the district court incorrectly stated
that Gaxiola and Gastelum were convicted following a trial.
3
Gaxiola and Gastelum joined as Plaintiffs on January 11, 2000, in the
First Amended Complaint.
WHITAKER v. GARCETTI 5421
Plaintiffs filed a Second Amended Complaint, renewing
their claims, and all parties moved for summary judgment. On
November 17, 2003, the district court issued an opinion grant-
ing in part and denying in part Plaintiffs’ and Defendants’
motions for summary judgment. Whitaker, 291 F. Supp. 2d
1132. The court analyzed Plaintiffs’ complaint as alleging two
cognizable constitutional violations: (1) violation of the
Fourth Amendment for obtaining the wiretap warrant through
judicial deception (“judicial deception claim”), and (2) viola-
tion of the Fourth Amendment for maintaining the handoff
procedure (“handoff claim”). Id. at 1142.
The district court granted summary judgment to Defendants
on Plaintiffs’ judicial deception claim. The court reasoned
that “a jury after proper witness testimony and cross-
examination could reasonably find for Plaintiffs.” Id. at 1143.
However, “a jury finding on the judicial deception issue in
favor of Plaintiffs would necessarily imply the reversal of
Plaintiffs’ earlier convictions.” Id. at 1144. Thus, the claim
was barred by Heck, 512 U.S. 477. Whitaker, 291 F. Supp. 2d
at 1145. In so ruling, the district court referred only to “Plain-
tiffs” generally, rather than examining the individual claims
of each set of Plaintiffs.
The district court granted summary judgment to Plaintiffs
on their claim for declaratory relief on the per se unconstitu-
tionality of the handoff procedure. “For purposes of isolating
the constitutional permissibility of the wiretap ‘hand off’ pro-
cedure, the [c]ourt assume[d] arguendo the legality of the ini-
tial wiretap.” Id. at 1151 n.39. The court then ruled that
“preserving the substance of the Fourth Amendment, respect-
ing the constitutional principles built into the Federal
Wiretapping Statute, and applying a proper understanding of
the notion of ‘independence’ all demand[ed] holding the
wiretapping ‘hand off’ procedure per se unconstitutional.” Id.
at 1152. Heck did not apply because Heck “repeated, time and
time again, that the § 1983 claims to be barred . . . were spe-
5422 WHITAKER v. GARCETTI
cifically restricted to claims for money damages.” Id. at 1152
n.44.
The district court granted summary judgment to Defendants
on Plaintiffs’ claim for damages from the handoff procedure.
The court ruled that “Defendants are undoubtedly entitled to
qualified immunity on this claim, since [the district court’s]
constitutional holding obviously was not ‘clearly established’
at the time of the activity.” Id. at 1153. The district court did
not discuss the applicability of Heck to the handoff claim for
damages.
Finally, the district court denied Defendants’ motion for
summary judgment on Plaintiffs’ state law claims. The district
court never entered judgment on the November 17, 2003,
order.
After the district court issued its order, the state law claims
of some Plaintiffs went to a jury.4 On May 7, 2004, the jury
found that no Plaintiff had proved by a preponderance of the
evidence that any Defendant had intercepted his or her tele-
phone call. The district court entered judgment in favor of
Defendants on Plaintiffs’ state law claims. No party appeals
a state law claim.
On December 10, 2004, the County Defendants filed a
motion to alter or amend the judgment or order regarding
Plaintiffs’ § 1983 claims. On March 30, 2005, the district
court denied the motion. The district court never entered judg-
ment on the order.
On April 4, 2005, Plaintiffs filed a request for a unified
judgment because the district court had not entered judgment
on its November 17, 2003, order. On April 26, 2005, the
County Defendants filed a notice of appeal from the district
court’s grant of declaratory relief on Plaintiffs’ handoff claim.
4
The remaining Plaintiffs procedurally defaulted their state law claims.
WHITAKER v. GARCETTI 5423
The next day, Plaintiffs filed a motion for attorney fees as pre-
vailing plaintiffs in reliance on the district court’s grant of
declaratory relief. The following day, Plaintiffs filed a notice
of appeal from the district court’s grant of declaratory relief
and partial grant of summary judgment in favor of Defen-
dants. On May 16, 2005, Plaintiffs filed a motion to enter a
unified judgment.5 The City Defendants did not file a notice
of appeal.
On June 16, 2005, the district court denied Plaintiffs’
request for attorney fees. The district court never ruled on
Plaintiffs’ motion for a unified judgment, nor did it enter
judgment on its attorney fees order. Plaintiffs did not file a
notice of appeal on their claim for attorney fees.
STANDARDS OF REVIEW
We review de novo a district court’s grant of summary
judgment, Buono v. Norton, 371 F.3d 543, 545 (9th Cir.
2004); a district court’s dismissal under Heck, Osborne v.
Dist. Attorney’s Office, 423 F.3d 1050, 1053 (9th Cir. 2005);
a district court’s grant of declaratory relief, DP Aviation v.
Smiths Indus. Aerospace & Def. Sys. Ltd., 268 F.3d 829, 840
(9th Cir. 2001); and a district court’s decision on qualified
immunity, Beier v. City of Lewiston, 354 F.3d 1058, 1064 (9th
Cir. 2004). We review for abuse of discretion a district court’s
award of attorney fees pursuant to 42 U.S.C. § 1988. Karam
v. City of Burbank, 352 F.3d 1188, 1192 (9th Cir. 2003). In
general, we may affirm the district court on any ground sup-
ported by the record. Lambert v. Blodgett, 393 F.3d 943, 965
(9th Cir. 2004).
5
The City Defendants had opposed Plaintiffs’ request for attorney fees
by arguing, in part, that the district court never had entered judgment on
its grant of declaratory relief.
5424 WHITAKER v. GARCETTI
DISCUSSION
A. Although the district court violated Federal Rule of Civil
Procedure 58, Plaintiffs waived any objection by timely
appealing.
As a preliminary matter, Plaintiffs argue that the district
court erred by failing to enter a single judgment because the
judgments entered in this case do not comport with Federal
Rule of Civil Procedure 58. Plaintiffs contend that the case
should be sent back to the district court for a proper entry of
judgment.
[1] Under Rule 58, with a few exceptions not applicable
here, “[e]very judgment and amended judgment must be set
forth on a separate document.” Fed. R. Civ. P. 58(a)(1). The
district court violated Rule 58 when it failed to enter a sepa-
rate judgment on its order denying Plaintiffs’ motion for a
preliminary injunction on May 24, 2000; its order granting
and denying in part Plaintiffs’ and Defendants’ motions for
summary judgment on November 17, 2003; its order denying
the County Defendants’ motion to alter or amend judgment on
March 30, 2005; and its order denying Plaintiffs’ request for
attorney fees on June 16, 2005. Plaintiffs repeatedly brought
the lack of separate judgments to the district court’s attention,
and the court never addressed Plaintiffs’ concerns.
[2] But “[t]he sole purpose of the separate-document
requirement, which was added to Rule 58 in 1963, was to
clarify when the time for appeal . . . begins to run.” Bankers
Trust Co. v. Mallis, 435 U.S. 381, 384 (1978) (per curiam).
“A failure to set forth a judgment or order on a separate docu-
ment when required by Federal Rule of Civil Procedure
58(a)(1) does not affect the validity of an appeal from that
judgment or order.” Fed. R. App. P. 4(a)(7)(B). “[N]either the
Supreme Court nor this court views satisfaction of Rule 58 as
a prerequisite to appeal. A ruling is final . . . if it (1) is a full
adjudication of the issues, and (2) clearly evidences the
WHITAKER v. GARCETTI 5425
judge’s intention that it be the court’s final act in the matter.”
Casey v. Albertson’s Inc., 362 F.3d 1254, 1258 (9th Cir.
2004) (citations and internal quotation marks omitted). Thus,
“when the parties treat a fully dispositive summary judgment
order as if it were a final judgment, the requirement in Federal
Rule of Civil Procedure 58 that the judgment ‘be set forth on
a separate document’ can be waived.” Id. at 1256 (citing
Bankers Trust, 435 U.S. at 382).
[3] In this case, with the exception of Plaintiffs’ later claim
for attorney fees, see infra Part C, and their state law claims,
which proceeded to trial and are not before us on appeal, the
district court’s order on November 17, 2003, disposed of all
remaining claims as to all parties. And as they did with the
district court’s order on May 24, 2000, the parties treated it
as a final judgment. Plaintiffs and the City Defendants did
dispute the final nature of the order before the district court.
Nevertheless, Plaintiffs and the County Defendants appealed
to us as if the order were a final judgment, the City Defen-
dants defend against Plaintiffs’ cross-appeal as if the order
were a final judgment, and no party argues (nor do we find)
that any appeal of the order was untimely. In these circum-
stances, we hold that Plaintiffs waived the Rule 58 require-
ment for separate judgments.
B. Heck bars all Plaintiffs except Whitaker from bringing
suit.
Throughout its order of November 17, 2003, the district
court referred generally to “Plaintiffs,” without differentiating
their claims and circumstances. But the district court previ-
ously had denied Plaintiffs’ motion to proceed as a class, a
ruling that Plaintiffs did not appeal. Thus, we must determine
the viability of each claim as to each Plaintiff. See Sacks v.
Office of Foreign Assets Control, 466 F.3d 764, 771 (9th Cir.
2006) (“Article III standing requires the plaintiff to establish
standing for each challenge he wishes to bring and each form
of relief he seeks.”), cert. denied, 2007 WL 121145 (U.S.
5426 WHITAKER v. GARCETTI
Apr. 16, 2007) (No. 06-948); Ellis v. City of La Mesa, 990
F.2d 1518, 1523 (9th Cir. 1993) (“[E]ach plaintiff must ‘show
that he personally has suffered some actual or threatened
injury as a result of the putatively illegal conduct of the defen-
dant.’ ” (quoting Valley Forge Christian Coll. v. Ams. United
for Separation of Church & State, Inc., 454 U.S. 464, 472
(1982))).
Plaintiffs cite Watt v. Energy Action Educational Founda-
tion, 454 U.S. 151, 160 (1981), and Laub v. United States
Department of Interior, 342 F.3d 1080, 1086 (9th Cir. 2003),
for the proposition that one plaintiff can create standing for all
plaintiffs. However, Watt and Laub are inapposite. Each con-
cerned judicial review of an administrative action where all
plaintiffs raised the same questions of fact and law. By con-
trast, this case does not concern a single administrative action,
and the factual circumstances of Plaintiffs are not identical.
We turn then, to a consideration of each set of Plaintiffs.
1. Whitaker has standing, but only on the judicial
deception claim.
Whitaker alleges that Defendants falsified the warrant
application for the wiretap that intercepted his telephone call,
and he challenges the constitutionality of the handoff proce-
dure. He seeks damages under the judicial deception claim
and both declaratory relief and damages under the handoff
claim. Defendants do not dispute the fact that Whitaker’s call
was intercepted.
a. Whitaker’s judicial deception claim
[4] A seizure conducted pursuant to a warrant obtained by
judicial deception violates the Fourth Amendment. Butler v.
Elle, 281 F.3d 1014, 1024 (9th Cir. 2002) (per curiam).
Defendants raise three defenses to Whitaker’s claim of judi-
cial deception, none of which we find persuasive.
WHITAKER v. GARCETTI 5427
First, the County Defendants argue that Whitaker waived
this claim by failing to raise it in Plaintiffs’ opening brief.
Although the organization of the brief could have been more
clear, Plaintiffs’ opening brief explicitly argued:
Whitaker still has standing to assert the loss of pri-
vacy and seek money damages based on the illegal
interception themselves. The district court found
Whitaker was not entitled to notice of the intercep-
tion since he was neither named [n]or criminally
charged. This ground, however, does not mean
Whitaker does not have standing to pursue his other
claims.
Whitaker’s judicial deception claim therefore was raised suf-
ficiently in the opening brief.
[5] Second, both sets of Defendants argue, and the district
court held, that Heck, 512 U.S. 477, bars all Plaintiffs’ claims
of judicial deception. As discussed in depth in Part B.2, Heck
bars a plaintiff from bringing suit under § 1983 if “a judgment
in favor of the plaintiff would necessarily imply the invalidity
of his conviction or sentence.” Id. at 487. But Whitaker never
was arrested or charged with a crime, much less convicted of
one. That being so, Heck is inapplicable to his claims.6
[6] Third, both sets of Defendants argue that they are enti-
tled to qualified immunity. “Qualified immunity is ‘an entitle-
ment not to stand trial or face the other burdens of litigation.’
The privilege is ‘an immunity from suit rather than a mere
defense to liability.’ ” Saucier v. Katz, 533 U.S. 194, 200
(2001) (emphasis omitted) (quoting Mitchell v. Forsyth, 472
U.S. 511, 526 (1985)).
6
In relying on Heck to grant summary judgment to Defendants on all
Plaintiffs’ claims of judicial deception, the district court appears simply to
have overlooked Whitaker.
5428 WHITAKER v. GARCETTI
When an individual sues a government official for violation
of a constitutional right, the official is entitled to qualified
immunity unless (1) the facts alleged, viewed in the light most
favorable to the individual asserting the injury, show that the
official violated a constitutional right, and (2) the contours of
the right were sufficiently clear so that a reasonable official
would understand that his conduct violated that right. Id. at
201-02. When an individual sues a local government for vio-
lation of a constitutional right, the municipality is liable if the
individual can establish that the local government “had a
deliberate policy, custom, or practice that was the ‘moving
force’ behind the constitutional violation he suffered.” Galen
v. County of L.A., 477 F.3d 652, 667 (9th Cir. 2007) (quoting
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694-95 (1978)).
“[A] municipality cannot be held liable under § 1983 on a
respondeat superior theory.” Monell, 436 U.S. at 691. “In this
circuit, a claim of municipal liability under [§] 1983 is suffi-
cient to withstand a motion to dismiss even if the claim is
based on nothing more than a bare allegation that the individ-
ual officers’ conduct conformed to official policy, custom, or
practice.” Galbraith v. County of Santa Clara, 307 F.3d 1119,
1127 (9th Cir. 2002) (internal quotation marks omitted).
[7] Here, Plaintiffs’ Second Amended Complaint speaks in
generalities regarding actions of “Defendants.” But an indi-
vidual defendant is stripped of qualified immunity only if he
personally violated a plaintiff’s constitutional rights. Baker v.
McCollan, 443 U.S. 137, 142 (1979) (“[A] public official is
liable under § 1983 only if he causes the plaintiff to be sub-
jected to deprivation of his constitutional rights.” (emphasis
and internal quotation marks omitted)). Thus, we must exam-
ine the allegations against each Defendant as they pertain to
Whitaker.
[8] Whitaker’s call was intercepted as part of the Downey
wiretap. The allegations in the complaint concerning the
Downey wiretap are: Defendant Lewis falsified an affidavit
for the warrant application; Defendants Williams and Garcetti
WHITAKER v. GARCETTI 5429
authorized and approved the falsified application; Defendant
Demerjian was aware of, monitored, and approved the appli-
cation; the falsification of the application conformed to the
official policy, custom, or practice of the City and County;
and the City and County failed to train these officials ade-
quately. Viewing the allegations of judicial deception as true,
Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 922 (9th Cir.
2004), Whitaker alleges facts that show that Defendants Wil-
liams, Lewis, Garcetti, and Demerjian violated his Fourth
Amendment rights, and he alleges that those officials operated
pursuant to an official policy, custom, or practice of the City
and County of Los Angeles.
[9] Whitaker thus has alleged facts sufficient to make out
a claim of judicial deception against Defendants Williams,
Lewis, Garcetti, Demerjian, the City of Los Angeles, and the
County of Los Angeles. In addition, the contours of the
Fourth Amendment right against judicial deception were
clearly established at the time of the events at issue. See But-
ler, 281 F.3d at 1024 (quoting Hervey v. Estes, 65 F.3d 784,
788-89 (9th Cir. 1995), for the elements of a judicial decep-
tion claim). Therefore, we hold that Defendants Williams,
Lewis, Garcetti, Demerjian, the City of Los Angeles, and the
County of Los Angeles are not entitled to qualified immunity
on Whitaker’s claim of judicial deception. By contrast, the
complaint does not implicate the remaining Defendants in any
way in the judicial deception of the Downey wiretap and, con-
sequently, the interception of Whitaker’s telephone call. Thus,
the district court properly granted summary judgment on
Whitaker’s judicial deception claim to Defendants Harden,
Marco, Livingston, Hazell, and Lustig.
b. Whitaker’s handoff claim
[10] Whitaker challenges the constitutionality of the hand-
off procedure, but the district court dismissed Whitaker’s
handoff claim in its order of May 24, 2000. Although the
court never entered judgment on the dismissal, Whitaker pro-
5430 WHITAKER v. GARCETTI
ceeded as if he had been dismissed. He acknowledged the dis-
missal in Plaintiffs’ opening brief, and he failed to dispute or
challenge it. Instead, he merely stated:
The district court found Whitaker was not entitled to
notice of the interceptions since he was neither
named [n]or nominally charged. This ground, how-
ever, does not mean Whitaker does not have stand-
ing to pursue his other claims.
(Emphasis added.) Accordingly, Whitaker waived any objec-
tion to the lack of a separate judgment on the district court’s
dismissal order, see Casey, 362 F.3d at 1256 (“[W]hen the
parties treat a fully dispositive summary judgment order as if
it were a final judgment, the requirement in Federal Rule of
Civil Procedure 58 that the judgment ‘be set forth on a sepa-
rate document’ can be waived.”), and waived any challenge
to the district court’s dismissal of the handoff claim, see Smith
v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999) (“[O]n appeal,
arguments not raised by a party in its opening brief are
deemed waived.”). We must dismiss Whitaker’s challenge to
the handoff procedure.
2. Heck bars the Portillo Plaintiffs and Gaxiola and
Gastelum from bringing suit.
The Portillo Plaintiffs—Portillo, Avalos, Martinez, Del-
gado, and Carrizoza—and Gaxiola and Gastelum allege that
Defendants falsified the warrant application for the wiretap
that intercepted their telephone calls, and they challenge the
constitutionality of the handoff procedure. They seek damages
under their judicial deception claim and both declaratory
relief and damages under their handoff claim.
[11] The district court ruled that Heck, 512 U.S. 477, barred
Plaintiffs’ judicial deception claims but did not bar their hand-
off claims. In Heck, the Supreme Court held that,
WHITAKER v. GARCETTI 5431
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
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. 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 (emphasis added) (footnote omitted). If “a
judgment in favor of the plaintiff would necessarily imply the
invalidity of his conviction or sentence,” then “the complaint
must be dismissed unless the plaintiff can demonstrate that
the conviction or sentence has already been invalidated.” Id.
at 487. In addition, “the principle barring collateral attacks—
a longstanding and deeply rooted feature of both the common
law and [the Supreme Court’s] own jurisprudence—is not
rendered inapplicable by the fortuity that a convicted criminal
is no longer incarcerated.” Id. at 490 n.10. The Supreme Court
later clarified that Heck’s principle applies regardless of the
form of remedy sought. “[A] claim for declaratory relief and
money damages . . . that necessarily impl[ies] the invalidity
of the punishment imposed[ ] is not cognizable under
§ 1983.” Edwards v. Balisok, 520 U.S. 641, 648 (1997).
[12] The Supreme Court left open the question whether
Heck’s bar applies to Fourth Amendment violations. See
Heck, 512 U.S. at 487 n.7 (“[A] suit for damages attributable
to an allegedly unreasonable search may lie even if the chal-
lenged search produced evidence that was introduced in a
state criminal trial resulting in the § 1983 plaintiff’s still-
outstanding conviction.” (emphasis added)). However, this
court since has answered that question in the affirmative:
5432 WHITAKER v. GARCETTI
We believe that the Second and Sixth Circuits
have taken the better approach and therefore hold
that a § 1983 action alleging illegal search and sei-
zure of evidence upon which criminal charges are
based does not accrue until the criminal charges have
been dismissed or the conviction has been over-
turned. Such a holding will avoid the potential for
inconsistent determinations on the legality of a
search and seizure in the civil and criminal cases and
will therefore fulfill the Heck Court’s objectives of
preserving consistency and finality, and preventing
“a collateral attack on [a] conviction through the
vehicle of a civil suit.”
Harvey v. Waldron, 210 F.3d 1008, 1015 (9th Cir. 2000)
(alteration in original) (quoting Heck, 512 U.S. at 484).
[13] Here, the Portillo Plaintiffs and Gaxiola and Gastelum
claim that Defendants committed judicial deception to obtain
the wiretap warrants and then impermissibly hid the existence
of, and evidence produced by, those wiretaps—evidence that
triggered the police investigations and state prosecutions
against them. In other words, they challenge the search and
seizure of the evidence upon which their criminal charges and
convictions were based. Heck and Harvey bar such a collat-
eral attack through the vehicle of a civil suit.
[14] The district court ruled that Heck did not bar Plaintiffs’
request for declaratory relief on the handoff procedure
because Heck involved only a suit for monetary damages.7
Whitaker, 291 F. Supp. 2d at 1152 n.44. The court distin-
7
Curiously, the district court did not discuss the applicability of Heck to
Plaintiffs’ request for damages on their handoff claims. Instead, the district
court granted summary judgment to Defendants on the basis of qualified
immunity. Whitaker, 291 F. Supp. 2d at 1153. We see no reason why Heck
does not apply equally to both of Plaintiffs’ claims for damages, and
Plaintiffs do not proffer one.
WHITAKER v. GARCETTI 5433
guished Edwards, 520 U.S. 641, in which a plaintiff sued for
both declaratory relief and damages, on the basis that
Edwards involved good time credits in prison and declaratory
relief would have been “a toothless bite,” whereas, in this
case, having the handoff procedure declared unconstitutional
would “have severely sharp teeth.” Whitaker, 291 F. Supp. 2d
at 1152 n.44. But nowhere in Heck or Edwards does the
Supreme Court say that application of the doctrine depends on
the sharpness of the proposed relief’s bite. Instead, the sole
dispositive question is whether a plaintiff’s claim, if success-
ful, would imply the invalidity of his conviction. Harvey and
Plaintiffs’ theory of the case answer that question in the affir-
mative.
Plaintiffs also argue for a “belated discovery” exception to
Heck for individuals who, because of a defendant’s actions,
do not discover a constitutional violation until after their con-
finement ends. They argue that Plaintiffs were “kept in the
dark by the Defendants and the only way they have been kept
from seeking relief during their confinement was due to
Defendants’ successful concealment.” We need not reach this
question. Assuming without deciding that such an exception
should exist, no Plaintiff would qualify for it. Contrary to
Plaintiffs’ flat assertion, the Portillo Plaintiffs knew about the
handoff procedure less than eight months after they pleaded
guilty, while each either was in jail or on parole, and Gaxiola
and Gastelum knew about the handoff before they pleaded
guilty. Indeed, when Plaintiffs filed their first complaint in
1999, all Plaintiffs (with the exception of Whitaker, who was
not convicted of any crime) remained in prison or on parole.
At oral argument, Plaintiffs asserted for the first time that
the judicial deception claim is sufficiently attenuated from the
evidence to avoid the bar of Heck. This new argument runs
counter to Plaintiffs’ theory throughout this case—that an
unbroken chain linked the improper, undisclosed wiretaps to
the surveillance and the evidence used against Plaintiffs at
trial. It is too late for Plaintiffs to change theories now. See
5434 WHITAKER v. GARCETTI
Smith, 194 F.3d at 1052 (“[O]n appeal, arguments not raised
by a party in its opening brief are deemed waived.”); Mone-
tary II Ltd. P’ship v. Comm’r, 47 F.3d 342, 347 (9th Cir.
1995) (“As a general rule, an appellate court will not consider
arguments which were not first raised before the district court,
absent a showing of exceptional circumstances.” (internal
quotation marks omitted)).
[15] In short, we hold that Heck bars Portillo, Avalos, Mar-
tinez, Delgado, Carrizoza, Gaxiola, and Gastelum from bring-
ing suit for declaratory relief or damages on their judicial
deception and handoff claims.
C. We lack jurisdiction over Plaintiffs’ request for attorney
fees.
Plaintiffs asked the district court for attorney fees as pre-
vailing plaintiffs under 42 U.S.C. § 1988. The court denied
their request, and Plaintiffs raised the issue in their opening
brief. However, Plaintiffs never filed a notice of appeal on
this claim as required by Federal Rule of Appellate Procedure
3(a)(1).
On April 28, 2005, Plaintiffs filed a notice of appeal from
the district court’s partial grant of summary judgment to
Defendants. On June 16, 2005, the district court denied Plain-
tiffs’ request for attorney fees. Plaintiffs neither amended
their prior notice of appeal nor filed a new notice.
It is the filing of a notice of appeal that invokes our
jurisdiction and establishes the issues to be
addressed. A timely notice of appeal from the judg-
ment or order complained of is mandatory and juris-
dictional. Where no notice of appeal from a post-
judgment order [regarding] attorneys’ fees is filed,
the court of appeals lacks jurisdiction to review the
order.
WHITAKER v. GARCETTI 5435
Culinary & Serv. Employees Union v. Haw. Employee Benefit
Admin., Inc., 688 F.2d 1228, 1232 (9th Cir. 1982) (emphasis
added) (citations omitted).
[16] Plaintiffs argue that, under Federal Rule of Appellate
Procedure 4, their notice of appeal from the district court’s
partial grant of summary judgment automatically pended until
the district court decided their request for attorney fees and,
therefore, that the notice of appeal encompasses the attorney
fees claim. In certain circumstances, a motion for attorney
fees can toll the deadline for filing a notice of appeal. Fed. R.
App. P. 4(a)(4)(A)(iii). In addition, if a party files a notice of
appeal before the district court has decided a motion for attor-
ney fees, the notice does not become effective until the court
decides the motion. Fed. R. App. P. 4(a)(4)(B)(i). But, even
so, a party wishing to challenge the attorney fees decision
“must file a notice of appeal, or an amended notice of appeal”
specifying its appeal of that decision. Fed. R. App. P.
4(a)(4)(B)(ii); Fed. R. App. P. 3(c)(1)(B). Plaintiffs failed to
do either. For that reason, we must dismiss Plaintiffs’ request
for attorney fees.
CONCLUSION
Plaintiffs waived the requirement for separate judgments
found in Federal Rule of Civil Procedure 58. Their request to
remand the case to the district court for an entry of judgment
is DENIED.
Whitaker has standing to raise the judicial deception claim,
but he failed to allege any involvement by Defendants Har-
den, Marco, Livingston, Hazell, and Lustig. Therefore, the
district court’s grant of summary judgment on Whitaker’s
judicial deception claim to Defendants Williams, Lewis, Gar-
cetti, Demerjian, the City of Los Angeles, and the County of
Los Angeles is REVERSED and Whitaker’s judicial decep-
tion claim against those Defendants is REMANDED. The dis-
trict court’s grant of summary judgment on Whitaker’s
5436 WHITAKER v. GARCETTI
judicial deception claim to Defendants Harden, Marco, Liv-
ingston, Hazell, and Lustig is AFFIRMED.
Heck bars the judicial deception claims of the Portillo
Plaintiffs and Gaxiola and Gastelum. The district court’s grant
of summary judgment to all Defendants on the judicial decep-
tion claims of Portillo, Avalos, Martinez, Delgado, Carrizoza,
Gaxiola and Gastelum is AFFIRMED.
Whitaker did not appeal the dismissal of his handoff claim,
and Heck bars the handoff claims of the Portillo Plaintiffs and
Gaxiola and Gastelum. Therefore, the district court’s grant of
declaratory relief is VACATED. We express no view on the
constitutionality of the handoff procedure, because the claim
was not properly before the district court. Whitaker’s handoff
claim is DISMISSED. The district court’s grant of summary
judgment to all Defendants on the handoff damages claims of
Portillo, Avalos, Martinez, Delgado, Carrizoza, Gaxiola and
Gastelum is AFFIRMED.
Plaintiffs failed to file a notice of appeal or an amended
notice of appeal on their request for attorney fees as prevail-
ing plaintiffs. Their request for attorney fees is DISMISSED.
Costs awarded to Defendants except for Defendants Wil-
liams, Lewis, Garcetti, Demerjian, the City of Los Angeles,
and the County of Los Angeles as to Plaintiff Whitaker,
where the parties shall bear their own costs.
AFFIRMED in part, DISMISSED in part, VACATED in
part, and REVERSED and REMANDED in part.