Duane Folke v. City of Los Angeles

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8 United States District Court

9 Central District of California

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11 DUANE R. FOLKE, Case № 2:21-cv-03038-ODW (Ex)

12 Plaintiff,

ORDER GRANTING IN PART

13 v.

14 C ITY OF LOS ANGELES et al., MOTION TO DISMISS [18]

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Defendants.

16

17 I. INTRODUCTION

18 On April 7, 2021, Plaintiff Duane Folke filed this action against the City of Los

19 Angeles (the “City”), Officer Whitey (the City and Whitey together, “Defendants”),

20 the Los Angeles Police Department (“LAPD”), Sargent Ferrer, Detective Yepp, and

21 Officer Lewis. (Compl., ECF No. 1.) Folke asserts five claims related to violations of

22 his civil rights including illegal search and seizure under the Fourteenth Amendment.

23 (Id.) Defendants move to dismiss all claims, asserting they are barred by the statute of

24 limitations and the Heck doctrine, and the Complaint otherwise fails to allege viable

25 claims. (Mot. Dismiss (“Mot.”), ECF No. 18.) For the following reasons, the Court

26 GRANTS IN PART and DENIES IN PART Defendants’ Motion.1

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28 1 Having carefully considered the papers filed in connection with the Motion, the Court deemed the

matter appropriate for decision without oral argument. Fed. R. Civ. P. 78; C.D. Cal. L.R. 7-15.

1 II. BACKGROUND2

2 Folke alleges that he was wrongfully arrested, detained, and searched by LAPD

3 officers on four separate occasions: (1) on March 16, 2019, LAPD officers arrested

4 Folke and detained him at Cedars Sinai Hospital (the “First Arrest”); (2) on March 21,

5 2019, LAPD officers searched Folke’s home without a warrant, physically assaulted

6 and arrested Folke, and then detained him at the Van Nuys Police Department Jail for

7 four days (the “Second Arrest”); (3) on March 26, 2019, LAPD officers arrested Folke

8 and detained him at UCLA Olive View Medical Center for two weeks (the “Third

9 Arrest”); (4) on April 8, 2019, LAPD officers again arrested Folke and detained him at

10 UCLA Olive View Medical Center where he was placed on a “5150 [psychiatric]

11 Hold” and suffered physical harm (the “Fourth Arrest”). (Compl. ¶¶ 3–9.) According

12 to Folke, the various arrests, searches, and seizures were without the requisite

13 probable cause and warrants or were otherwise “wrongful.” (Id.) Folke asserts that

14 his Fourth Arrest resulted in a criminal conviction for trespass, (Id. ¶ 9), which in turn

15 resulted in currently pending disciplinary proceedings before the California State Bar,

16 (Opp’n 6, ECF No. 20). Folke alleges that LAPD targeted him because he is “of

17 African American descent, liv[ing] in a predominantly White [n]eighborhood” and

18 had made prior civil rights complaints against LAPD. (Compl. ¶ 12.)

19 In his Complaint, Folke asserts five claims against the defendants: (1) illegal

20 search and seizure under the Fourteenth Amendment (deprivation of rights under

21 42 U.S.C. § 1983); (2) conspiracy to interfere with civil rights (violation of 42 U.S.C.

22 § 1985); (3) neglect to prevent (violation of 42 U.S.C. § 1986); (4) Monell claim; and

23 (5) retaliation. Defendants now move to dismiss all five claims on the basis that they

24 are barred by the applicable statute of limitations. (Mot. 5.) Defendants also argue

25 that certain claims should be dismissed because the allegations are insufficient, the

26 requisite claim elements have not been met, and certain federal claims cannot be

27

2 All factual references derive from Plaintiff’s Complaint or attached exhibits, unless otherwise

28 noted, and well-pleaded factual allegations are accepted as true for purposes of this Motion. See

Iqbal, 556 U.S. at 678.

1 maintained under a respondeat superior theory of liability. (Id.) Defendants’ Motion

2 is fully briefed. (See generally Mot.; Opp’n; Reply, ECF No. 21.)

3 III. REQUESTS FOR JUDICIAL NOTICE

4 Concurrently with their Motion, Defendants request the Court to take judicial

5 notice of the certified Los Angeles Superior Court docket for criminal case number

6 9VW03144. (Defs.’ Req. Jud. Notice (“Defs.’ RJN”), Ex. 1 (“‘144 Case Docket”),

7 ECF Nos. 19, 19-1.) In support of his Opposition to Defendants’ Motion, Folke

8 requests judicial notice of a July 23, 2021 order for dismissal of Los Angeles Superior

9 Court criminal case number 9VW03144. (Pl.’s Req. Jud. Notice (“Folke’s RJN”),

10 Ex. 1 (“‘144 Dismissal Order), ECF No. 23.)

11 The Court may take judicial notice of court filings and other undisputed matters

12 of public record. See Fed. R. Evid. 201(b); United States v. Black, 482 F.3d 1035,

13 1041 (9th Cir. 2007). Both the ‘144 Case Docket and ‘144 Dismissal Order are court

14 records. Accordingly, the Court GRANTS both Defendants’ RJN and Folke’s RJN.

15 IV. LEGAL STANDARD

16 A court may dismiss a complaint under Rule 12(b)(6) for lack of a cognizable

17 legal theory or insufficient facts pleaded to support an otherwise cognizable legal

18 theory. Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988). To

19 survive a dismissal motion, a complaint need only satisfy the minimal notice pleading

20 requirements of Rule 8(a)(2)—a short and plain statement of the claim. Porter v.

21 Jones, 319 F.3d 483, 494 (9th Cir. 2003). The factual “allegations must be enough to

22 raise a right to relief above the speculative level.” Bell Atl. Corp. v. Twombly,

23 550 U.S. 544, 555 (2007). That is, the complaint must “contain sufficient factual

24 matter, accepted as true, to state a claim to relief that is plausible on its face.”

25 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted).

26 The determination of whether a complaint satisfies the plausibility standard is a

27 “context-specific task that requires the reviewing court to draw on its judicial

28 experience and common sense.” Id. at 679. A court is generally limited to the

1 pleadings and must construe all “factual allegations set forth in the complaint . . . as

2 true and . . . in the light most favorable” to the plaintiff. Lee v. City of Los Angeles,

3 250 F.3d 668, 679 (9th Cir. 2001). However, a court need not blindly accept

4 conclusory allegations, unwarranted deductions of fact, and unreasonable inferences.

5 Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001).

6 Where a district court grants a motion to dismiss, it should generally provide

7 leave to amend unless it is clear the complaint could not be saved by any amendment.

8 See Fed. R. Civ. P. 15(a); Manzarek v. St. Paul Fire & Marine Ins. Co., 519 F.3d

9 1025, 1031 (9th Cir. 2008). Leave to amend may be denied when “the court

10 determines that the allegation of other facts consistent with the challenged pleading

11 could not possibly cure the deficiency.” Schreiber Distrib. Co. v. Serv-Well Furniture

12 Co., 806 F.2d 1393, 1401 (9th Cir. 1986). Thus, leave to amend “is properly

13 denied . . . if amendment would be futile.” Carrico v. City and Cty. of San Francisco,

14 656 F.3d 1002, 1008 (9th Cir. 2011).

15 V. DISCUSSION

16 Defendants move to dismiss all five of Plaintiff’s claims, arguing that they are

17 barred by the governing statute of limitations insofar as they relate to the First Arrest

18 and Second Arrest. (Mot. 5.) Defendants argue that Folke cannot maintain any claims

19 related to the Fourth Arrest until Folke’s conviction resulting from the Fourth Arrest

20 has been reversed, expunged, or invalidated. (Id. at 7.) Defendants also contend that

21 the City cannot be held liable for certain claims under a respondeat superior theory of

22 liability. (Id. at 10.) Finally, Defendants assert that certain claims should be

23 dismissed as improperly pleaded, vague, conclusory, or duplicative. (Id. at 6, 11.)

24 Each claim is addressed as follows.

25 A. First and Second Arrests Under the Statute of Limitations

26 In his First through Fifth causes of action, Folke respectively alleges violations

27 of 42 U.S.C. §§ 1983, 1985, and 1986, as well as Monell and retaliation claims—all of

28 which fall under § 1983. (See generally Compl.) Defendants first assert that all five

1 causes of action are barred by a two-year statute of limitations insofar as they are

2 based on the First and Second Arrests.3 (Mot. 5.)

3 The statute of limitations applicable to claims under 42 U.S.C. § 1983

4 (including related § 1985, §1986, Monell, and retaliation claims) is the personal injury

5 statute of limitations of the forum state. Alameda Books, Inc. v. City of Los Angeles,

6 631 F.3d 1031, 1041 (9th Cir. 2011). The California statute of limitations for personal

7 injury actions is two years. Cal. Civ. Proc. Code § 335.1; Jackson v. Fong, 870 F.3d

8 928, 936 (9th Cir. 2017).

9 Although California law determines the limitations period, federal law

10 determines when a claim accrues. Olsen v. Idaho State Bd. of Medicine, 363 F.3d 916,

11 926 (9th Cir. 2004). Under federal law, a claim accrues “when the plaintiff knows or

12 has reason to know of the injury which is the basis of the action.” Id. (quoting

13 TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999)). Nevertheless, state law

14 governs tolling to the extent it is not inconsistent with federal law. Azer v. Connell,

15 306 F.3d 930, 936 (9th Cir. 2002) (citing Morales v. City of Los Angeles, 214 F.3d

16 1151, 1155 (9th Cir. 2000)). California state law permits up to two years of tolling of

17 the statute of limitations for plaintiffs incarcerated at the time their cause of action

18 accrues. Cal. Civ. Proc. Code § 352.1.

19 Folke’s First Arrest took place on March 16, 2019, and Folke’s Second Arrest—

20 which involved a four-day detention and, therefore, a four-day tolling period—took

21 place on March 21, 2019. (Compl. ¶ 4.) Folke’s § 1983 claims based on his First and

22 Second Arrests therefore accrued on March 16, 2019, and March 25, 2019,

23 respectively. Applying this standard, Folke had until March 16, 2021 and March 25,

24 2021, to bring these claims within the two-year statute of limitations, but he did not

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26 3 Although Folke’s Opposition appears to defend his Third and Fourth Arrests against a statute of

limitations challenge, Defendants do not argue that the Third and Fourth Arrests are time-barred.

27

Indeed, Folke’s Complaint, filed on April 7, 2021, clearly falls within the two-year statute of

28 limitations for his Third Arrest (which resulted in his release from custody on April 8, 2019) and

Fourth Arrest (which occurred on April 8, 2019).

1 file his Complaint until April 7, 2021. Thus, Folke’s First and Second Arrest claims

2 are untimely unless he is entitled to delayed accrual. As explained below, the Court

3 finds that Folke is not entitled to such accrual for the Second Arrest, and the

4 Complaint does not contain facts sufficient to determine whether Folke is so entitled

5 for the First Arrest.

6 1. Continuing Violations Doctrine

7 In his Opposition, Folke argues that his First and Second Arrests were a part of

8 a continuing violation against him, and the statute of limitations cannot begin to run

9 until the last violation. (Opp’n 6, 8.) Folke asserts that the last violation in the series

10 of Arrests is his Fourth Arrest. (Id.) Therefore, Folke argues, the statute of limitations

11 for Folke’s First and Second Arrests did not accrue until the disposition of Folke’s

12 Fourth Arrest. (Id.)

13 The continuing violations doctrine is an exception to the rule of accrual,

14 “allowing a plaintiff to seek relief for events outside of the limitations period.” Bird v.

15 Dep’t of Hum. Servs., 935 F.3d 738, 746 (9th Cir. 2019) (quoting Knox v. Davis, 260

16 F.3d 1009, 1013 (9th Cir. 2001)), cert. denied sub nom. Bird v. Hawaii, 140 S. Ct. 899

17 (2020). However, in 2002, the Supreme Court held that “discrete . . . acts are not

18 actionable if time barred, even when they are related to acts alleged in timely filed

19 charges” because “[e]ach discrete . . . act starts a new clock for filing charges alleging

20 that act.” Nat’ R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002). After the

21 Ninth Circuit applied this holding, “little remains of the continuing violations

22 doctrine.” Bird, 935 F.3d at 748. Outside of a “limited exception for hostile work

23 environment claims,” the doctrine as applied to claims of a series of related acts “is

24 virtually non-existent.” Id. And although the doctrine may apply to class-wide claims

25 of a “discriminatory system,” the Ninth Circuit has “consistently refused to apply [this

26 discriminatory system] branch to rescue individualized claims that are otherwise time-

27 barred.” Id. Because Folke’s claims are individualized and are not related to a hostile

28 work environment, the continuing violations doctrine is inapplicable. Thus, the

1 continuing violations doctrine cannot tie Folke’s First and Second Arrests to his

2 Fourth Arrest for purposes of extending the applicable statute of limitations.

3 Folke also appears to suggest that his currently pending disciplinary

4 proceedings before the California State Bar may constitute the final event in the

5 “continuing violation” resulting from the various Arrests. (Opp’n 9.) Accordingly,

6 Folke asserts that “there can be no dismissal” of claims related to those Arrests on a

7 statute of limitations basis because the violations, or State Bar proceedings, are still

8 ongoing. (Id.) This argument is also without merit. Even if the Court applies the

9 “little [that] remains”, Bird, 935 F.3d at 746, of the continuing violation doctrine, “[a]

10 ‘mere continuing impact from past violations is not actionable’ if the violations lie

11 outside the statute of limitations period,” Flynt v. Shimazu, 940 F.3d 457, 463 (9th Cir.

12 2019) (quoting Knox, 260 F.3d at 1013); Garcia v. Brockway, 526 F.3d 456, 462 (9th

13 Cir. 2008) (“[A] continuing violation is occasioned by continual unlawful acts, not by

14 continual ill effects from an original violation.”). Thus, Folke’s State Bar proceedings

15 do not impact the statute of limitations for Folke’s First and Second Arrests.

16 2. Accrual for Fabricated Evidence Claims

17 Folke also argues that this Court should apply the accrual standard for a

18 fabrication of evidence claim, which states that such claims do not accrue until the

19 underlying criminal proceedings terminate in the defendant’s favor or the resulting

20 conviction has been invalidated (the “FEC Rule”). (See Opp’n 4); see McDonough v.

21 Smith, 139 S. Ct. 2149, 2157 (2019) (holding that the plaintiff could not bring his

22 fabricated evidence claim under § 1983 prior to favorable termination of his related

23 prosecution). Folke makes numerous allegations that evidence was fabricated and

24 used against him in his various Arrests. (See, e.g., Compl. ¶¶ 7, 11–12, 19–21, 24,

25 34.) Construing all well-pleaded factual allegations in “the light most favorable” to

26 Folke—as the Court must in this pleading stage—the Court finds that Folke has

27 asserted fabrication of evidence claims. Lee, 250 F.3d at 679.

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1 i. First Arrest

2 The Complaint does not mention any criminal charges, proceedings, or records

3 related to the First Arrest and is therefore unclear as to whether the FEC Rule can

4 bring Folke’s First Arrest claims back within the statute of limitations. Yet, dismissal

5 based on the statute of limitations is only appropriate when “the running of the statute

6 is apparent on the face of the complaint.” Lien Huynh v. Chase Manhattan Bank,

7 465 F.3d 992, 997 (9th Cir. 2006) (quoting Jablon v. Dean Witter & Co., 614 F.2d 677,

8 682 (9th Cir. 1980)). And claims “cannot be dismissed unless it appears beyond doubt

9 that the plaintiff can prove no set of facts that would establish the timeliness of the

10 claim.” Supermail Cargo, Inc. v. United States, 68 F.3d 1204, 1206 (9th Cir. 1995).

11 The details surrounding the First Arrest are unclear and, as a result, the Court

12 cannot determine “beyond doubt” the applicability of the FEC Rule. Supermail,

13 68 F.3d at 1206. This, taken with the fact that the statute of limitations appears to

14 have been missed by, at most, three weeks, creates a reasonable possibility that the

15 FEC Rule could bring the First Arrest claims back within the statute of limitations. In

16 view of this possibility, the Court is unable to dismiss the First Arrest claims at this

17 time. See Huynh, 465 F.3d at 1003–04 (stating that it is rarely appropriate to grant

18 Rule 12(b)(6) motion to dismiss if matters outside the pleadings are at issue because

19 review is limited to the allegations in the complaint); Hastings v. Hutchens, No. 8:18-

20 cv-0529 R (ADS), 2019 WL 2902508, at *7 (C.D. Cal. Mar. 29, 2019) (denying a

21 motion to dismiss because the pleadings failed to provide sufficient details regarding

22 the plaintiff’s incarceration, leaving the court unable to determine whether the statute

23 of limitations was satisfied without looking outside the pleadings). Accordingly, this

24 issue may be more appropriately resolved in a motion for summary judgment. The

25 Court therefore DENIES Defendants’ Motion with regard to the First Arrest.

26 ii. Second Arrest

27 With regard to the Second Arrest, Folke states that he was held in a jail for four

28 days but that the case was deemed a “DA REJECT” and “no charges were filed.”

1 (Compl. ¶¶ 3, 35.) With no charges and, consequently, no criminal proceedings

2 stemming from the Second Arrest, the FEC Rule does not apply. See Roberts v. City

3 of Fairbanks, 947 F.3d 1191, 1204 (9th Cir. 2020) (concluding the fabrication of

4 evidence claims accrued when there was no outstanding criminal judgment or charges

5 pending against the plaintiffs, and they did not otherwise “stand convicted of

6 anything”). The Second Arrest therefore remains subject to the standard statute of

7 limitations analysis, which provides that claims for the Second Arrest accrued on

8 March 25, 2019. Accordingly, the Court GRANTS Defendants Motion dismissing

9 Folke’s claims as time-barred insofar as they relate to the Second Arrest.

10 B. Third Arrest Claims Against Officer Whitey

11 Defendants move to dismiss Folke’s claims relating to his Third Arrest to the

12 extent that they are asserted against Officer Whitey. (Mot. 6–7.) Defendants argue

13 that the Complaint alleges the Third Arrest was conducted by only “Los Angeles

14 POLICE SARGENT FERRER Badge # 35725.” (Id.) Indeed, the Complaint states

15 that Officer Ferrer directed the Third Arrest and fails to allege Officer Whitey’s

16 involvement. (Compl. ¶ 5.) The Court therefore GRANTS Defendants’ Motion

17 dismissing all claims asserted against Officer Whitey insofar as they relate to the

18 Third Arrest, with leave to amend the Complaint to clarify this allegation as

19 necessary to remedy the identified deficiency.

20 C. Fourth Arrest Under the Heck Doctrine

21 Defendants move to dismiss all claims insofar as they relate to the Fourth

22 Arrest,4 asserting that they are barred by the Heck doctrine. (Mot. 7 (citing Heck v.

23 Humphrey, 512 U.S. 477 (1994)).) The Heck doctrine states that,

24 [T]o recover damages for allegedly unconstitutional conviction or

imprisonment, or for other harm caused by actions whose unlawfulness

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26 4 Defendants do not assert that the First, Second, or Third Arrests are barred by Heck. And the

papers are void of any suggestion that the First, Second, or Third Arrests resulted in any criminal

27

charges. Without such assertions, Heck is inapplicable. See Martin, 920 F.3d at 613 quoting Heck,

28 512 U.S. at 486–87 (“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.”).

would render a conviction or sentence invalid, a § 1983 plaintiff must

1

prove that the conviction or sentence has been reversed on direct appeal,

2 expunged by executive order, declared invalid by a state tribunal

3 authorized to make such determination, or called into question by a

federal court’s issuance of a writ of habeas corpus.

4

5 Martin v. City of Boise, 920 F.3d 584, 611–12 (9th Cir. 2019) (citing Heck, 512 U.S. at

6 486–87.)

7 The purpose of the Heck doctrine is to prevent plaintiffs from using § 1983 to

8 attack the validity of a criminal conviction, “because a recovery in the damages action

9 would necessarily imply that the conviction was wrongfully obtained.” Furnace v.

10 Giurbino, 838 F.3d 1019, 1026 (9th Cir. 2016). Simply put, “[t]he judgment of

11 conviction and the judgment for damages would be inconsistent, and there would be

12 no means to reconcile the two.” Id.

13 Here, Defendants assert that Folke’s conviction of trespass under Penal Code

14 section 602(k), (‘144 Case Docket), which resulted from his Fourth Arrest, bars his

15 claims because the conviction has not been “invalidated, expunged, or reversed on

16 appeal,” (Mot. 8). In response, Folke argues that Heck does not apply to this case and,

17 even if Heck does apply, Folke’s Fourth Arrest claims are not barred as there are

18 currently pending “continuing collateral consequences” or, alternatively, because

19 Folke’s conviction has been expunged. (Opp’n 3, 5–8.) The Court finds Folke’s

20 arguments are without merit and Heck therefore bars Folke’s Fourth Arrest claims.

21 1. Exception to Heck

22 Citing to Heck, Folke argues that if a plaintiff’s successful § 1983 action does

23 not necessarily demonstrate the invalidity of the criminal judgment against the

24 plaintiff, the action should be allowed to proceed. (Opp’n 3, 7–8); Heck, 512 U.S. at

25 487. The Heck Court explained this exception in a footnote and stated that, for

26 example, an action for damages resulting from an unreasonable search may proceed

27 “even if the challenged search produced evidence that was introduced in a state

28 criminal trial resulting in . . . conviction.” Heck, 512 U.S. at 487 n.7. This is because

1 finding that a plaintiff suffered damages from an unreasonable search is not

2 necessarily irreconcilable with the plaintiff’s criminal conviction resulting from that

3 search—if the damages extend beyond the mere arrest, conviction, and imprisonment.

4 See id. The exception to Heck therefore applies to claims “for using the wrong

5 procedures, not for reaching the wrong result.” Id. at 482–83.

6 Accordingly, the exception has been construed to apply only to situations where

7 a plaintiff alleges damages resulting from an unreasonable search and seizure and the

8 evidence obtained from that search and seizure is not in any way used to secure the

9 plaintiff’s related criminal conviction. See id. For example, in Ove v. Gwinn, the

10 Ninth Circuit found that Heck did not bar § 1983 claims alleging damages from

11 improper blood draws because the blood sample evidence was not used in securing the

12 DUI criminal convictions. 264 F.3d 817, 823 (9th Cir. 2001). In Lockett v. Ericson,

13 the Ninth Circuit similarly held that Heck did not apply because the allegedly illegal

14 evidence resulting from the search and seizure was not used to support the plaintiff’s

15 underlying criminal conviction. 656 F.3d 892, 896–97 (9th Cir. 2011).

16 Here, Folke alleges damages resulting from “being restrained from handcuffs so

17 tight they caused [him] to faint,” and “being physically . . . beaten,”—however, these

18 damages appear to result from the First through Third Arrests and not the Fourth

19 Arrest, which is at issue here. (See Compl. ¶¶ 3–9, 21.) Unlike the plaintiffs in Ove

20 and Lockett, Folke’s Fourth Arrest claims do not challenge the particular methods

21 Defendants used to obtain evidence leading to the Fourth Arrest, and do not assert

22 separate damages resulting from those methods. See Finley v. Fisher, No. 14-CV-

23 00913-HSG, 2015 WL 3466394, at *3 (N.D. Cal. June 1, 2015) (finding that the Heck

24 exception did not allow the plaintiff’s § 1983 claim to proceed because the plaintiff

25 challenged the very existence of evidence that would justify his arrest, criminal

26 charges, and conviction, as opposed to challenging the way in which such evidence

27 was obtained or used); Kowarsh v. Heckman, No. 14-CV-05314-MEJ, 2015 WL

28 2406785, at *8 (N.D. Cal. May 19, 2015) (holding that the § 1983 plaintiff did not fall

1 within the exception to Heck because his claims alleged malicious prosecution against

2 the prosecutors, as opposed to claims challenging the methods used by police to

3 obtain evidence.) Thus, Folke fails to allege the unreasonable search in his Fourth

4 Arrest caused any damages beyond the Arrest itself and the resulting conviction.

5 Folke’s claims also clearly challenge the validity of the Fourth Arrest and

6 resulting conviction. (See Compl. ¶ 24 (describing the Fourth Arrest as “wrongful”

7 and “with no legal basis,” and asserting that “[Folke] was forc[ed] . . . to plead ‘No

8 Contest’ to the alleged crime and misdemeanor of ‘trespassing’ when no such crime

9 was committed.”).) Thus, the Fourth Arrest and resulting conviction are the injuries

10 for which Folke seeks damages, and Folke’s success on his § 1983 claims would

11 therefore necessarily call into question the validity of his conviction. Accordingly,

12 Folke’s claims do not fall within this exception to Heck.

13 2. Continuing Collateral Consequences

14 Folke also argues that the Heck doctrine does not bar his Fourth Arrest claims

15 because his currently pending disciplinary proceedings before the California State Bar

16 are a “continuing collateral consequence” of his Fourth Arrest. (See Opp’n 5–7.)

17 Citing to Spencer v. Kemna, 523 U.S. 1 (1998), Folke asserts that Heck cannot bar his

18 claims because the continuing collateral consequence, or State Bar proceedings,

19 cannot be absolved by expungement, leaving Folke without a means to satisfy Heck’s

20 expungement requirement. (Id.) However, the Spencer Court merely held that it was

21 not required to address the plaintiff’s challenge to his “collateral consequence” of

22 parole—even if his parole prevented him from bringing § 1983 claims—because the

23 law does not require that plaintiffs are “always and everywhere” able to bring § 1983

24 actions. Spencer, 523 U.S. at 17. Thus, Spencer stands for a proposition contrary to

25 Folke’s argument and, if anything, affirms that Heck applies to Folke’s claims.

26 3. Expungement

27 Finally, Folke argues that even if the Court applies the Heck doctrine, Folke’s

28 Fourth Arrest claims may nevertheless proceed because Heck only bars claims when

1 the related criminal conviction remains valid—and Folke’s trespass conviction

2 stemming from his Fourth Arrest has now been “expunge[d].” (Opp’n 7.)

3 Specifically, Folke asserts that his conviction was dismissed pursuant to California

4 Penal Code section 1203.4, which satisfies Heck’s requirement for an expungement or

5 favorable termination of the related criminal conviction. (Id.; ‘144 Dismissal Order.)

6 According to section 1203.4 (a)(1), a court may set aside a guilty verdict and

7 dismiss a defendant’s conviction if that defendant “fulfilled the conditions of

8 probation for the entire period of probation, or has been discharged prior to the

9 termination of the period of probation or in any other case in which [the] court, in its

10 discretion and the interests of justice, determines [the] defendant should be granted the

11 relief.” Defendants argue that dismissal under section 1203.4 is virtually ministerial

12 and “would not establish that Plaintiff was actually innocent of the crime charged.”

13 (Reply 3–4.) Accordingly, Defendants assert that such dismissal does not constitute a

14 favorable termination of the conviction, as required by Heck. (Id.)

15 Defendants cite to Gocke v. United States, as an example of a district court

16 applying the Heck bar to § 1983 claims even when the plaintiff’s criminal conviction

17 was “expunged” pursuant to § 1203.4. (Id.); No. EDCV 16-1560-MWF (SHKx),

18 2019 WL 4238881, at *5 (C.D. Cal. July 10, 2019). The court in Gocke explained that

19 “the Ninth Circuit has made the distinction between actual innocence and procedural

20 relief” and that expungement is generally perceived as destroying or sealing the

21 records asserting the existence of the conviction “and not the conviction itself.” Id.

22 (citing United States v. Crowell, 374 F.3d 790, 792 (9th Cir. 2004)).

23 The Ninth Circuit recognizes that a section 1203.4 dismissal merely releases the

24 defendant from penalties resulting from the offense but does not invalidate the

25 conviction. United States v. Hayden, 255 F.3d 768, 771 (9th Cir. 2001). A section

26 1203.4 dismissal “is in no way equivalent to a finding of factual innocence” and

27 therefore does not demonstrate invalidation, reversal, or expungement for Heck

28 purposes. DeVaughn v. County of Los Angeles, No. 08-cv-1461-AB (FFMx), 2018

1 WL 7324527, at *6 n.6 (C.D. Cal. Dec. 12, 2018), aff’d, 824 F. App’x 501 (9th Cir.

2 2020); see Campos v. City of Merced, 709 F. Supp. 2d 944, 961 (E.D. Cal. 2010)

3 (holding that a section 1203.4 expungement does not nullify the conviction). Thus, a

4 section 1203.4 does not satisfy Heck’s favorable termination requirement. See e.g.,

5 Shay v. City of Huntington Beach, No. SACV 17-00744-AG (JCGx), 2018 WL

6 6016151, at *3 (C.D. Cal. Sept. 25, 2018) (finding that a judgment followed by a

7 section 1203.4 dismissal nevertheless qualifies as a conviction under Heck), aff’d, 816

8 F. App’x 47 (9th Cir. 2020).

9 Remaining consistent with Ninth Circuit precedent, this Court finds that Folke’s

10 section 1203.4 conviction dismissal does not constitute the favorable termination

11 required by Heck. Accordingly, Folke’s conviction continues to bar his § 1983 claims

12 insofar as they pertain to the Fourth Arrest. The Court therefore GRANTS

13 Defendants’ Motion with respect to the Fourth Arrest.

14 D. Vicarious Liability for §§ 1983, 1985 and 1986, and Retaliation Claims

15 Defendants move to dismiss Folke’s §§ 1983, 1985, and 1986, and retaliation

16 claims insofar as they allege vicarious liability for the City on behalf of its employees.

17 (Mot. 10.) Defendants assert that “a municipality cannot be held liable solely because

18 it employs a tortfeasor—or, in other words, a municipality cannot be held liable under

19 § 1983 on a respondeat superior theory.” (Mot. 10 (quoting Monell v. Dep’t of Soc.

20 Servs., 436 U.S. 658, 691 (1978)).) Folke’s Opposition does not refute or even

21 address this assertion.

22 In Monell, the Supreme Court held that municipalities may only be held liable

23 under § 1983 for constitutional violations resulting from official county policy or

24 custom. 436 U.S. at 694. “The custom or policy must be a deliberate choice to follow

25 a course of action . . . made from among various alternatives by the official or officials

26 responsible for establishing final policy with respect to the subject matter in question.”

27 Benavidez v. County of San Diego, 993 F.3d 1134, 1153 (9th Cir. 2021) (internal

28 quotation marks omitted). The policies can include “written policies, unwritten

1 customs and practices, [and] failure to train municipal employees on avoiding certain

2 obvious constitutional violations.” Id.

3 Folke’s Complaint does not mention any policy whatsoever. Instead, the

4 Complaint generally alleges that Defendants have “customs and practices includ[ing]

5 the failure to diligently investigate any purported allegations of criminal threats and

6 properly charge and review the circumstances of any particular criminal law case

7 [against Folke].” (Comp. ¶ 39.) However, Folke does not plead facts sufficient to

8 link the Defendants’ alleged misconduct to any specific City policy or custom.

9 Moreover, the allegations appear to apply only to Folke’s § 1986 claim. Accordingly,

10 Monell bars respondeat superior liability for the City with regard to Folke’s §§ 1983,

11 1985, and 1986, and retaliation claims. The Court therefore GRANTS Defendants’

12 Motion dismissing allegations of respondeat superior liability for the City, with leave

13 to amend such allegations as necessary to remedy this deficiency.

14 E. § 1986 and Monell Claims as Vague and Conclusory

15 Defendants assert that Folke’s § 1986 claim should also be dismissed as to

16 individual liability because it is vague, conclusory, and duplicative. (Mot. 11.) For

17 the reasons stated above, the Court finds that Folke’s § 1986 claim is vague and

18 conclusory and should be dismissed. See Bruns v. Nat’l Credit Union Admin., 122

19 F.3d 1251, 1257 (9th Cir. 1997) (“[A] liberal interpretation of a civil rights complaint

20 may not supply essential elements of the claim that were not initially pled.”) (quoting

21 Ivey v. Bd. of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982)); Ivey,

22 673 F.2d at 268 (“Vague and conclusory allegations of official participation in civil

23 rights violations are not sufficient to withstand a motion to dismiss.”).

24 Defendants also argue that Folke’s Monell claim should be dismissed as

25 conclusory. (Mot. 10–11.) In his Monell claim, Folke asserts that Defendants

26 “fail[ed] to establish, implement, and follow the correct and proper Constitutional

27 policies, procedures, customs and practices.” (Compl. ¶¶ 47–48.) However, these

28 allegations again are generalized and conclusory and fail to link Folke’s alleged

1 injuries with any specific City policy or custom. The Court therefore GRANTS

2 Defendants’ Motion dismissing Folke’s § 1986 claim as applied to individual liability,

3 and Monell claim, with leave to amend as necessary to remedy the identified

4 deficiencies.

5 VI. CONCLUSION

6 For the reasons discussed above, the Court GRANTS IN PART and DENIES

7 IN PART Defendants’ Motion to Dismiss [18], with leave to amend the Complaint

8 as described above. If Folke chooses to file an Amended Complaint, he must file it

9 within twenty-one (21) days of the date of this Order, in which case Defendants shall

10 answer or otherwise respond no later than fourteen (14) days from the date the

11 Amended Complaint is filed.

12 Although Folke is a licensed attorney, he appears in this action pro se. The

13 Federal Pro Se Clinic offers free information and guidance to individuals who are

14 representing themselves in federal civil actions. The Los Angeles Clinic operates by

15 appointment only. Appointments may be made by calling the Clinic at (213) 385-

16 2977, ext. 270 at the following site: http://prose.cacd.uscourts.gov/los-angeles. Clinic

17 staff can efficiently respond to many questions with a telephonic appointment or

18 through an email request. In-person appointments may be available at the Roybal

19 Federal Building and Courthouse, 255 East Temple Street, Suite 170, Los Angeles,

20 California 90012. Folke is encouraged to visit the Clinic or otherwise consult with an

21 attorney prior to amending his Complaint.

22

23 IT IS SO ORDERED.

24

25 November 4, 2021

26

27 ____________________________________

OTIS D. WRIGHT, II

28

UNITED STATES DISTRICT JUDGE