Zuegel v. Garcia ( 2022 )

1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 JAMES R. ZUEGEL, Case No. 21-cv-07538-BLF 8 Plaintiff, ORDER DENYING MOTION TO SET 9 v. ASIDE JUDGMENT 10 MARCO GARCIA, et al., [Re: ECF No. 35] 11 Defendants. 12 13 Plaintiff James Zuegel was arrested on June 7, 2015. On September 30, 2016, he entered a 14 guilty plea to a state misdemeanor charge. On June 6, 2017, he filed a lawsuit under 42 U.S.C. 15 § 1983 in this Court. That lawsuit proceeded to trial, and on November 20, 2020, the jury returned 16 a verdict for Zuegel. Zuegel appealed the Court’s orders on the motions to dismiss and motion for 17 summary judgment in that case, which appeal is still pending at the Ninth Circuit. On September 18 28, 2021, Zuegel filed this case, a “follow-on” to the previous case. On July 20, 2022, the Court 19 dismissed this case and closed it, and on August 10, 2022, the Court entered Judgment. 20 Zuegel now seeks to set aside the Judgment. For the reasons discussed on the record at the 21 hearing and explained below, the motion is DENIED. 22 I. BACKGROUND 23 A. Zuegel I 24 On June 6, 2017, Zuegel filed his original lawsuit in this Court. See Zuegel v. Mountain 25 View Police Dep’t, No. 17-cv-3249 (N.D. Cal., filed Jun. 6, 2017) (“Zuegel I”) ECF No. 1. The 26 Court first evaluated Zuegel’s claims in that lawsuit in April 2018 after he obtained counsel and 27 filed an amended complaint. See Zuegel I, Order Granting Motion to Dismiss First Amended 1 amended complaint, Zuegel asserted claims arising out of incidents occurring between May and 2 June 2015. Zuegel alleged that on May 23, 2015, he and his wife accompanied their severely 3 autistic son JR (and his autism service dog) to the Mountain View El Camino YMCA for a swim 4 lesson. Id. at 2 (citing the amended complaint). After the lesson, as Zuegel waited for his family 5 on one of the couches at the YMCA, two young girls sat near him on the couch and talked to 6 Zuegel about his son’s service dog. Id. JR emerged making loud noises, sat between Zuegel and 7 one of the girls, and tried to “dart” away. Id. Zuegel grabbed JR by the back of his shirt to try to 8 prevent him from darting away, as he normally did, and said something to the effect of “sit your 9 butt down.” Id. Zuegel and his family left after briefly encountering a woman who appeared to be 10 the mother of one of the girls. Id. 11 Zuegel alleged that days later and unknown to Zuegel, the girl’s mother reported to the 12 Mountain View Police Department that a man with a service dog at the YMCA had slapped her 13 daughter on the butt and asked her, “How old are these buns?” Apr. ’18 Ord. at 2–3. The young 14 girl corroborated these allegations in a follow-up interview, although also saying that the man did 15 not “touch any private areas.” Id. at 3. Based on these interviews, Officers Ward and Moore 16 arrived at and entered Zuegel’s home at 9:33 p.m. on June 7, 2015 without an arrest or search 17 warrant and arrested Zuegel in the presence of his wife and JR after he refused to be interrogated 18 without counsel or his wife present. Id. The arrest was extremely distressing to the family and 19 caused JR to become highly agitated. Id. Officer Garcia led the interrogation of Zuegel at the 20 police station. Id. Zuegel was confined overnight and for part of the following day until his wife 21 posted bail. Id. 22 The Santa Clara District Attorney charged Zuegel with misdemeanor sexual battery and 23 misdemeanor soliciting or engaging in lewd conduct in public in violation of California Penal 24 Code §§ 242-243.4(3)(1), 647(a). Apr. ’18 Ord. at 3–4. Zuegel alleged that to avoid having to 25 register as a sex offender, on September 30, 2016, he pled no contest to misdemeanor disorderly 26 conduct. Id. Zuegel was placed on probation for three years, ordered to perform 75 hours of 27 community service, and barred from coming within 300 yards of the YMCA. Id. 1 Defendants here, one § 1983 claim against Officers Garcia, Ward, and Moore, and one § 1983 2 claim against the Mountain View Police Department and City of Mountain View. Apr. ’18 Ord. at 3 4. As is relevant here, in April 2018, this Court dismissed the § 1983 claims asserted in the First 4 Amended Complaint, largely without leave to amend. Id. at 5–15. The Court found that the 5 § 1983 claims for false arrest, lack of a warrant, coercion to consent to a search of his phone, 6 violation of his right to remain silent, violation of his right to counsel, and violation of his due 7 process right not to be interrogated were barred by Heck because establishing the basis for 8 damages under § 1983 for those courses of conduct would necessarily demonstrate the invalidity 9 of the underlying conviction. Id. at 6, 12 (citing Heck, 512 U.S. at 481–82). The Court held that 10 those claims were “properly the subject of habeas corpus proceedings which [Zuegel] allege[d] he 11 [wa]s simultaneously pursuing.” Id. at 11, 12. The Court granted Zuegel leave to amend solely to 12 attempt to allege a § 1983 claim based on “the circumstances surrounding the manner of the 13 arrest”—the nighttime arrest or arrest without consent to enter absent exigent circumstances— 14 because those courses of conduct would not demonstrate the invalidity of the plea. Id. at 15. 15 Otherwise, his § 1983 claims were dismissed without leave to amend. Id. at 6, 11, 12, 15. 16 Zuegel proceeded to trial on two claims—one for warrantless entry and arrest against 17 Officers Moore and Ward and one for Monell liability against the City on a failure to train theory 18 related to the first claim. See Zuegel I, ECF No. 108 (denying summary judgment on those 19 claims). On November 20, 2020, the jury returned a verdict finding that the officers did not enter 20 Zuegel’s residence in violation of the Fourth Amendment, but that they had remained inside after 21 consent was withdrawn, thus violating the Fourth Amendment. See Zuegel I, ECF No. 178 at 1–2 22 (jury verdict). The jury found that the Fourth Amendment violation was not a result of the City’s 23 deliberate indifference for failure to train. Id. at 2. The jury awarded Zuegel $3,000 in total 24 damages, with fault apportioned equally between Officers Ward and Moore. Id. at 2–3. The 25 Court entered judgment on November 23, 2020. See Zuegel I, ECF No. 179. The Court later 26 denied the defendants’ motion for judgment as a matter of law and granted in part Zuegel’s request 27 for attorneys’ fees. See Zuegel I, ECF No. 223. Zuegel’s appeal of the Court’s orders on the 1 motions to dismiss and motion for summary judgment is still pending at the Ninth Circuit.1 See 2 9th Cir. No. 21-16277. 3 B. Zuegel’s State Habeas Proceedings 4 Zuegel’s plea to and conviction of the state misdemeanor charge occurred on September 5 30, 2016. See Zuegel I, ECF No. 19-4; accord Compl. ¶ 54 (stating that Zuegel’s three years of 6 probation were completed on September 30, 2019). Zuegel filed his petition for a writ of habeas 7 corpus in the Santa Clara County Superior Court on December 19, 2017, fifteen months after his 8 conviction. See Request for Judicial Notice (“RJN”) Ex. H, ECF No. 16-10, at 67–113. The 9 Superior Court denied the writ on February 2, 2018. See id. at 115–19. He filed a writ of habeas 10 corpus in the Sixth District Court of Appeal on April 2, 2018, id. at 121–252, which was denied on 11 November 1, 2018, id. at 254. He filed his habeas petition in the Supreme Court of California on 12 December 31, 2018. See generally id. The Supreme Court denied the petition on July 10, 2019— 13 approximately two-and-a-half months before Zuegel’s probation was set to end—thus exhausting 14 Zuegel’s state habeas remedies. See RJN Ex. I. Zuegel did not file a federal habeas petition 15 because he “could not realistically complete” those proceedings in the limited time before his 16 probation would end and the habeas petition would become moot. See Opp. at 9. 17 C. Zuegel II 18 Zuegel filed this case on September 28, 2021, two days short of two years from the 19 termination of his probation. See ECF No. 1 (“Compl.”). Zuegel characterizes the case as a 20 “follow-on” to Zuegel I that is based on the same conduct but which asserts claims that have 21 supposedly newly “accrued” under § 1983 due to the unavailability of federal habeas relief after 22 the termination of Zuegel’s probation. Id. ¶¶ 1–2. The Complaint asserted four § 1983 claims: 23 (1) against Officers Ward and Moore for arrest without probable cause, id. ¶¶ 55–57; (2) against 24 Officers Ward and Moore for arrest in retaliation for assertion of constitutional rights, id. ¶¶ 58– 25 60; (3) against Officer Ward and Detective Garcia for transportation to county jail for booking 26 without probable cause, id. ¶¶ 61–64; and (4) against the City of Mountain View under Monell v. 27 1 Dep’t of Soc. Servs., 436 U.S. 658 (1978), Compl. ¶¶ 65–71.2 Zuegel sought compensatory and 2 punitive damages and attorneys’ fees. Id. at 26. 3 Defendants filed a motion to dismiss this case. ECF No. 16-1 (“MTD”). The Court 4 granted the motion to dismiss and closed the case on July 20, 2022. ECF No. 32 (“MTD Order”). 5 The Court entered Judgment on August 10, 2022. ECF No. 34. On August 25, 2022, Plaintiff 6 filed a motion to set aside judgment under Federal Rules of Civil Procedure 59 and 60. ECF No. 7 35 (“Notice of Motion”), 36 (“Motion”); see also ECF No. 45 (“Reply”). Zuegel also filed 8 supporting declarations from himself, ECF Nos. 38-39, and his attorney, ECF No. 37. Defendants 9 oppose the motion. ECF No. 44 (“Opp.”). The Court held a hearing on December 1, 2022. See 10 ECF No. 47. 11 II. LEGAL STANDARD 12 Under Federal Rule of Civil Procedure 59(e), a party may file a motion to alter or amend a 13 judgment within 28 days after the entry of the judgment. Fed. R. Civ. P. 59(e). The Ninth Circuit 14 has identified “four basic grounds upon which a Rule 59(e) motion may be granted: (1) if such 15 motion is necessary to correct manifest errors of law or fact upon which the judgment rests; (2) if 16 such motion is necessary to present newly discovered or previously unavailable evidence; (3) if 17 such motion is necessary to prevent manifest injustice; or (4) if the amendment is justified by an 18 intervening change in controlling law.” Allstate Ins. Co. v. Herron, 634 F.3d 1101, 1111 (9th Cir. 19 2011). 20 “Although Rule 59(e) permits a district court to reconsider and amend a previous order, the 21 rule offers an extraordinary remedy, to be used sparingly in the interests of finality and 22 conservation of judicial resources.” Kona Enters., Inc. v. Est. of Bishop, 229 F.3d 877, 890 (9th 23 Cir. 2000) (quotation marks and citation omitted). Rule 59(e) relief “should not be granted, absent 24 25 2 The Complaint also separately asserted § 1983 claims against Gavin Newsom, Governor of 26 California, and Rob Bonta, Attorney General of California. See Compl. ¶¶ 72–91. After those 27 defendants moved to dismiss, Zuegel voluntarily dismissed his claims against them and the Court 1 highly unusual circumstances, unless the district court is presented with newly discovered 2 evidence, committed clear error, or if there is an intervening change in the controlling law.” 389 3 Orange St. Partners v. Arnold, 179 F.3d 656, 665 (9th Cir. 1999). “A Rule 59(e) motion may not 4 be used to raise arguments or present evidence for the first time when they could reasonably have 5 been raised earlier in the litigation.” See Kona, 229 F.3d at 890. 6 Under Federal Rule of Civil Procedure 60(b), a court may relieve a party from a final 7 judgment for six reasons “upon a showing of (1) mistake, surprise, or excusable neglect; (2) newly 8 discovered evidence; (3) fraud; (4) a void judgment; (5) a satisfied or discharged judgment; or (6) 9 ‘extraordinary circumstances’ which would justify relief.” Fuller v. M.G. Jewelry, 950 F.2d 1437, 10 1442 (9th Cir. 1991); see also Fed. R. Civ. P. 60(b). Mere dissatisfaction with the Court’s order, 11 or belief that the Court is wrong in its decision, are not grounds for relief under Rule 60(b). 12 Twentieth Century-Fox Film Corp. v. Dunnahoo, 637 F.2d 1338, 1341 (9th Cir. 1981); Beckway v. 13 DeShong, No. C07-5072 TEH, 2012 WL 1355744, at *2 (N.D. Cal. Apr. 18, 2012). 14 III. DISCUSSION 15 In his opening brief, Zuegel asks the Court to “revisit the reasoning” of the MTD Order. 16 Motion at 1. While Zuegel mentions Rules 59(e) and 60 in passing, see id., as Defendants note, he 17 does not explain why he entitled to relief under those rules, see Opp. at 2. Zuegel instead appears 18 to be attempting to relitigate the issues decided on the motion to dismiss which, as stated above, is 19 not permitted under Rules 59 and 60. In his Reply, Zuegel clarifies his theories as to why he is 20 entitled to relief under the stringent standards in Rules 59(e) and 60(b). Zuegel argues that relief 21 under Rule 59(e) is proper because the Court committed clear error and the circumstances of the 22 Court’s order were “highly unusual.” Reply at 4-5. As to Rule 60, Zuegel states he is bringing the 23 motion under Rule 60(b)(1) (surprise) and 60(b)(6) (extraordinary circumstances). Id. at 2-4. 24 A. The “In Custody” Requirement for Federal Habeas Relief 25 Zuegel argues that he is entitled to relief under Rule 59(e) because the Court committed 26 clear error. Reply at 5. Zuegel states that the Court committed clear error “at least to the extent 27 that, under controlling Ninth Circuit law, Zuegel’s right to file a federal habeas petition ended 1 But Zuegel is confusing two different habeas requirements. First, in order to file a habeas 2 petition, an individual must be in custody. See 28 U.S.C. § 2254; Spencer v. Kemna, 523 U.S. 1, 7 3 (1998) (“Spencer was incarcerated by reason of the parole revocation at the time the petition was 4 filed, which is all the ‘in custody’ provision of 28 U.S.C. § 2254 requires.”). Second, and 5 separately, a habeas petition that has already been filed may become moot when that individual is 6 released from custody. Spencer, 523 U.S. at 7 (“Once the convict’s sentence has expired, 7 however, some continuing injury other than the now-ended incarceration or parole—some 8 ‘collateral consequence’ of the conviction—must exist if the suit is to be maintained.”). It is thus 9 not always the case that a habeas petition becomes moot when an individual is released from 10 custody. See generally id. at 7-16. 11 Zuegel was required to file his habeas petition when he was still “in custody.” And Zuegel 12 had the opportunity to file for federal habeas while he was still in custody, as his state habeas 13 proceedings terminated before his probation was terminated. He chose not to do so. He argues 14 that he did not do so because the petition would have become moot a few months later when his 15 probation ended. See ECF No. 28 (“MTD Opp.”) at 9. But he is also incorrect that the petition 16 would have necessarily become moot upon the termination of his probation, as his conviction 17 could have had “continuing collateral consequences.” See Spencer, 523 U.S. at 7-8. The Court’s 18 analysis in the MTD Order turned on the fact that Zuegel did not diligently seek habeas relief. 19 MTD at 14-15. The Court did not state that Zuegel could have, or should have, filed for habeas 20 relief when he was no longer “in custody”; the Court’s determination was based on Zuegel’s 21 actions when he was still in custody. The Court did not commit clear error. 22 B. Zuegel’s Opportunity to Be Heard 23 Zuegel’s other arguments under Rules 59(e) and 60(b)(1) and (6) are all related. Zuegel 24 argues that the Court improperly relied on reasoning that was not presented in the parties’ briefs, 25 and that Zuegel therefore did not have an opportunity to be heard. Reply at 2-5. Zuegel asserts 26 that this action by the Court was “highly unusual” under Rule 59(e), and that the action constituted 27 “surprise” under Rule 60(b)(1) and an “extraordinary circumstance” under Rule 60(b)(6). Id. at 3- 1 were not briefed: (1) whether the termination of probation affected Zuegel’s ability to seek habeas 2 relief; (2) whether these arguments were waived under issue preclusion; (3) whether the diligence 3 requirement in Guerrero v. Gates, 442 F.3d 697 (9th Cir. 2006), required Zuegel to file for federal 4 habeas relief; (4) whether Zuegel was diligent in seeking state court habeas; (5) whether Zuegel 5 was diligent in failing to move for reconsideration of the Heck dismissal and/or leave to file a third 6 amended complaint in Zuegel I when probation expired; and (6) whether Zuegel’s time to file a 7 federal habeas petition expired in October 2017. Id. at 3. 8 However, most of these items were briefed on the motion to dismiss. As to the second and 9 fifth items, Zuegel asserts that the issue of whether he should have moved for reconsideration 10 and/or leave to file a third amended complaint, and therefore whether these arguments are waived 11 under issue preclusion, was not argued on the motion to dismiss. Reply at 3. The Court initially 12 stated at hearing that it was inclined to delete the issue preclusion analysis from its MTD Order on 13 this basis. But Defendants noted that they argued on the motion to dismiss that “Zuegel never 14 raised these arguments” in Zuegel I, and he could not now “try to make legal arguments that 15 should have been raised in the First Action.” MTD at 9. Zuegel makes much of the fact that 16 Defendants did not state that Zuegel should have brought a motion for reconsideration or motion 17 to file an amended complaint, Reply at 3, but Defendants were not required to identify the 18 procedural mechanisms by which Zuegel could have raised these issues in Zuegel I. The above- 19 quoted portion of the motion to dismiss sufficiently raised the waiver argument. The Court further 20 notes that it did not rely on the issue preclusion analysis in deciding the motion to dismiss. 21 As to the third and fourth bases, Zuegel’s diligence in pursuing habeas relief and the 22 diligence requirement of Guerrero, Defendants did argue that Guerrero requires the “timely 23 pursuit of available habeas relief [as] an important prerequisite for a section 1983 plaintiff seeking 24 to escape the Heck bar.” MTD at 8. Defendants further argued that Guerrero “held that ‘self- 25 imposed’ failure to seek habeas relief was not a ground for allowing Guerrero to escape the Heck 26 bar.” Id. And Defendants also argued that Zuegel did not “diligently pursue habeas relief,” 27 specifically highlighting the time it took him to first file for habeas. Id. Zuegel’s attorney 1 that Zuegel submitted a robust opposition to the diligence argument. MTD Opp. at 8. 2 The sixth issue identified by Zuegel is whether his ability to file for federal habeas expired 3 in October 2017. Reply at 3. This is presumably referring to the Court’s discussion of whether a 4 federal habeas petition filed after exhausting state court habeas may have been outside the 1-year 5 limitations period under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). 6 See MTD Order at 14-15. The Court did not determine whether a federal habeas petition would 7 have been outside the limitations period, but rather only considered AEDPA as part of its 8 diligence analysis. As discussed above, the diligence issue was briefed. Further, the Court notes 9 that this analysis was not dispositive to its diligence determination. 10 Finally, the first issue identified by Zuegel is that the Court stated “that Zuegel’s right to 11 file a habeas petition did not expire upon termination of probation due to collateral consequences.” 12 Reply at 3. But again, as discussed in the previous section, Zuegel is conflating the in-custody 13 requirement for filing a habeas petition with the continuing case or controversy requirement for 14 maintaining a habeas petition once out of custody. The Court did not state that Zuegel’s right to 15 file a habeas petition did not expire upon termination of probation, but instead that it would not 16 necessarily have become moot upon termination of probation. See MTD Order at 9 (“Zuegel is 17 incorrect that his federal habeas claims were mooted by the expiration of his probation.”). Further, 18 these issues were briefed on the motion to dismiss. See, e.g., MTD at 8 (Defendants arguing that 19 Spencer “reaffirmed that a habeas avenue is still available to attack an underlying conviction, even 20 to a released prisoner”). 21 Zuegel is incorrect that the Court’s MTD Order “contained so many ideas not enunciated 22 in the” motion to dismiss. Reply at 3. Zuegel also argues that some of the issues were “mentioned 23 [in the MTD] fleetingly, only in passing, in skeletal form.” Id. The fact that Defendants’ 24 motion to dismiss briefing is not to Plaintiff’s liking is not grounds for setting aside a judgment. 25 Further, Zuegel makes much of the fact that he “had no opportunity to respond to the Court’s own 26 reasoning because there was no oral argument,” and that he therefore “had no opportunity to be 27 heard with respect to the Court’s originally formulated reasoning.” Id. at 3-4. He similarly claims 1 at 4. However, as highlighted above, Zuegel did have the opportunity to be heard as to all of the 2 arguments that the Court relied on in its analysis because those arguments were briefed. Plaintiffs 3 are not entitled to oral argument on motions to dismiss. See Fed. R. Civ. P. 78(b); Civ. L.R. 7- 4 1(b); see, e.g., Wilkins v. Rogers, 581 F.2d 399, 405 (4th Cir. 1978) (“allow[ing] motions to be 5 determined ‘upon brief written statements’ . . . is unquestionably constitutional” (citation 6 omitted)). 7 Because there was no lack of notice on the dispositive arguments and no lack of an 8 opportunity to be heard, the Order was not “highly unusual” for purposes of Rule 59(e), nor did it 9 constitute “surprise” or an “extraordinary circumstance” for purposes of Rule 60(b). 10 C. Additional Evidence 11 Zuegel submitted a declaration from himself and his attorney with this Motion. See ECF 12 Nos. 37-39. Defendants argue that the Court should not consider these declarations, noting that 13 Zuegel’s declaration “could have, and should have, been submitted in opposition to the original 14 Motion.” Opp. at 3. Zuegel argues that the Court should consider these declarations because they 15 are being submitted in light of the “new legal theories” in the Court’s MTD Order. Reply at 5. 16 The Court first notes that Zuegel is not basing his Rule 60 motion on Rule 60(b)(2)—newly 17 discovered evidence. See Reply. Nor could he, as this evidence is not newly discovered. Because 18 there is no basis to grant the Rule 59/60 motion, the Court need not consider this evidence. 19 D. Merits 20 Zuegel also makes many arguments as to the merits of the case, largely relitigating the 21 issues decided on the motion to dismiss. Because there is no basis to set aside the judgment under 22 Rules 59 or 60, the Court need not get to these arguments. However, the Court will address them 23 briefly. The Court also points the parties to its full legal analysis in the MTD Order. 24 First, Zuegel argues that his right to file a habeas petition ended when he was released 25 from custody. MTD at 3-5. As discussed twice above, he is correct, and the Court did not state 26 otherwise. However, this does not affect the Court’s analysis, again for the reasons discussed 27 above. 1 the Court did not rely on issue preclusion in reaching its decision on the motion to dismiss. 2 Zuegel has not shown, or even argued, there was clear error in the Court’s decision as to issue 3 preclusion, and the Court relies on its earlier analysis. See MTD Order at 9-10. 4 Third, with regard to diligence, Zuegel argues that the diligence requirement in Guerrero 5 exceeds the Spencer rule and, to the extent the Court requires diligence, he was diligent in his 6 efforts to pursue habeas relief. MTD at 9-14. This issue was briefed on the motion to dismiss, 7 and the Court gave an in-depth analysis of Guerrero and why Zuegel did not satisfy the diligence 8 requirement. See MTD Order at 12-15. First, the Court notes that the diligence requirement in 9 Guerrero does not exceed the Spencer rule, but was in fact derived from the Spencer rule, as the 10 Ninth Circuit stated: “In following the reasoning of the concurrence in Spencer, we have 11 emphasized the importance of timely pursuit of available remedies in two cases.” Guerrero, 442 12 F.3d at 704. And second, Zuegel was not diligent. He waited 15 months to file for state habeas 13 relief. Id. at 4. And he chose not to file for federal habeas relief when he was still in custody. Id. 14 That relief may or may not have become moot when he was released from custody. Regardless, 15 Zuegel has not shown, or even argued, there was clear error in the Court’s decision as to diligence, 16 and the Court points to its earlier analysis. See MTD Order at 14-15. 17 Finally, Zuegel argues that the Court was incorrect in its reading of Spencer and Nonnette 18 v. Small, 316 F.3d 872 (9th Cir. 2009). MTD at 14-19. As stated in the MTD Order, in Spencer, 19 the Supreme Court held that the expiration of a petitioner’s sentence moots a petitioner’s federal 20 habeas petition under Article III due to a lack of a case or controversy where there are no collateral 21 consequences from the underlying action that is challenged. Five justices agreed that: 22 Heck did not hold that a released prisoner in Spencer’s circumstances is out of court on a § 1983 claim, and for reasons explained in my 23 Heck concurrence, it would be unsound to read either Heck or the habeas statute as requiring any result. For all that appears here, then, 24 Spencer is free to bring a § 1983 action, and his corresponding argument for continuing habeas standing falls accordingly. 25 26 Spencer, 523 U.S. at 19 (Souter, J., concurring). The Ninth Circuit applied this rule in Nonnette. 27 Again, as stated in the MTD Order, the plaintiff in that case brought a § 1983 action challenging 1 imposition of 100 days of administrative segregation in a disciplinary proceeding after Nonnette 2 was involved in an inmate fight. 316 F.3d at 874. The Ninth Circuit decided that because 3 Nonnette was no longer incarcerated, based on Justice Souter’s concurring opinion, Heck did not 4 preclude Nonnette’s § 1983 action. Id. In a footnote later in the opinion, the Ninth Circuit noted: 5 We do not share the State’s concern that our holding will encourage prisoners to delay their challenges to loss of good-time credits until 6 their release is imminent or accomplished. The possibility of release from incarceration is the strongest incentive for prisoners to act 7 promptly to challenge such administrative action by habeas corpus after administrative remedies are exhausted. We also emphasize our 8 holding affects only former prisoners challenging loss of good-time credits, revocation of parole or similar matters; the status of prisoners 9 challenging their underlying convictions or sentences does not change upon release, because they continue to be able to petition for a writ of 10 habeas corpus. 11 Id. at 878 n.7 (citing Spencer, 523 U.S. at 7–12). 12 In the MTD Order, the Court discussed whether the Ninth Circuit limits the Spencer 13 exception to instances involving “loss of good-time credits, revocation of parole or similar 14 matters.” MTD Order at 12-13. The Court recognized that some judges in this Circuit have 15 rejected a strict interpretation of the footnote in Nonnette that would restrict availability of the 16 Spencer exception to those delineated matters, while other judges have interpreted the footnote 17 more strictly. Compare Beckway v. DeShong, 717 F. Supp. 2d 908, 917 (N.D. Cal. 2010) 18 (allowing plaintiff who pleaded no contest to proceed with § 1983 claims under Spencer exception 19 because he was “never incarcerated” and so “habeas is unavailable to him”) and Cole v. Doe 1 20 Thru 2 Officers of the City of Emeryville Police Dep’t, 387 F. Supp. 2d 1084, 1092–93 & n.2 21 (N.D. Cal. 2005) (rejecting narrow interpretation of the footnote because “the Ninth Circuit’s 22 focus in Nonnette was on the availability of the habeas remedy,” not on the form of the underlying 23 claims) with Rouse v. Conner, 2012 WL 2368464, at *10 (N.D. Cal. Jun. 21, 2012) (Nonnette 24 “provide[s] relief from Heck only for ‘former prisoners challenging loss of good-time credits, 25 revocation of parole[] or similar matters,’ . . . not challenges to an underlying conviction”) and 26 Wesbecher v. Landaker, 2008 WL 2682614, at *4 (E.D. Cal. Jul. 1, 2008) (interpreting exception 27 as “narrow” based on Nonnette footnote) (citing El v. Crain, 560 F. Supp. 2d 932, 945 (C.D. Cal. 1 Zuegel now “advocates that this Court follow the language of Justice Souter’s Spencer 2 || opinion rather than the language of the Nonnette footnote seven.” Motion at 18. The Court first 3 || notes that the word “rather” is not appropriate because this is not an either/or situation—the Ninth 4 Circuit in Nonnette was following Spencer, and even cited to Spencer in the identified footnote. 5 || Nonnette, 316 F.3d at 878 n.7. Regardless, this Court explicitly did not decide whether to adopt a 6 || strict interpretation of Nonnette, stating that it “need not decide whether Nonnette and Guerrero 7 allow the type of claims Zuegel asserts here because even if they did, the Court finds that Zuegel 8 || did not diligently pursue ‘expeditious litigation’ to challenge the conduct underlying his plea.” 9 MTD Order at 14 (citing Guerrero, 442 F.3d at 704-05). Regardless of how the Court reads 10 || Nonnette, Zuegel is barred from filing for habeas relief under the diligence requirement in 11 Guerrero. Again, Zuegel has not shown, or even argued, there was clear error in the Court’s e 12 decision. (13 || IV. ORDER 14 For the foregoing reasons, IT IS HEREBY ORDERED that Zuegel’s Motion to Set Aside 15 Judgment under Rules 59/60 is DENIED. 16 17 |] Dated: December 2, 2022 fecuinfhacncan Z 18 BETH LABSON FREEMAN 19 United States District Judge 20 21 22 23 24 25 26 27 28