1 2 3 4 5 6 JS-6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA – WESTERN DIVISION 10 11 WILLIAM ROBERT BRAMSCHER, CASE NO. CV 20-4324 RGK (AS) 12 Plaintiff,

ORDER DISMISSING SECOND AMENDED

13 v.

COMPLAINT

14 HERMOSA BEACH POLICE DEPARTMENT, et al., 15 Defendants. 16 17 18 I. 19 INTRODUCTION 20 21 On May 7, 2020,1 William Robert Bramscher (“Plaintiff”), an 22 inmate at Correctional Training Facility in Soledad, California, 23 1 Under the “mailbox rule,” a pleading filed by a pro se 24 prisoner is deemed to be filed as of the date the prisoner delivered it to prison authorities for mailing, not the date on which the 25 pleading may have been received or filed by the court. Houston v. 26 Lack, 487 U.S. 266, 270 (1988); see also Douglas v. Noelle, 567 F.3d 1103, 1107 (9th Cir. 2009) (“[T]he Houston mailbox rule 27 applies to § 1983 suits filed by pro se prisoners.”); Roberts v. Marshall, 627 F.3d 768, 770 n.1 (9th Cir. 2010) (“When a prisoner 28 1 proceeding pro se, filed a Complaint, alleging that his civil 2 rights, pursuant to 42 U.S.C. § 1983, were violated. (Dkt. No. 3 1). On June 19, 2020, Plaintiff filed a First Amended Complaint. 4 (Dkt. No. 5). On June 30, 2020, the Court dismissed the First 5 Amended Complaint, with leave to amend. (Dkt. No. 9). On August 6 11, 2020, Plaintiff filed a Second Amended Complaint (“SAC”). 7 (Dkt. No. 13). The Second Amended Complaint names the following 8 Defendants, who are sued in both their individual and official 9 capacities: (1) Guy Dove, Hermosa Beach Police Officer; (2) Gerold 10 Rodriguez, Hermosa Beach Police Officer; (3) Brent Zuber, Hermosa 11 Beach Police Officer; (4) Michael Frilot, Hermosa Beach Police 12 Officer; (5) Robert Higgins, Hermosa Beach Police Officer; (6) 13 Jaime Ramirez, Hermosa Beach Police Officer; (7) Nicholas Garcia, 14 Hermosa Beach Police Officer; (8) Mark Smuts, Hermosa Beach Police 15 Officer; (9) Dean Garkow, Hermosa Beach Police Officer; (10) 16 Christopher Alkadis, Hermosa Beach Police Officer; (11) Chief of 17 Hermosa Beach Police; (12) Hermosa Beach Police Department; and 18 (13) City of Hermosa Beach. (SAC at 3-7). 19 20 The Court has screened the Second Amended Complaint as 21 prescribed by 28 U.S.C. §§ 1915(e)(2) and 1915A. For the reasons 22 discussed below, the Court DISMISSES Plaintiff’s Complaint WITHOUT 23 LEAVE TO AMEND. 24

25 mail to court, the court deems the petition constructively ‘filed’ on the date it is signed.”). Here, the Court has calculated the 26 filing date of this action pursuant to the mailbox rule as the date the Complaint was mailed. (Complaint at 12). Citations to the 27 Complaint and the Second Amended Complaint refer to the pages 28 assigned by the Court’s electronic filing system. 1 II. 2 PLAINTIFF’S ALLEGATIONS 3 4 Plaintiff alleges that Defendants violated his First Amendment 5 rights. (SAC at 8). The gravamen of Plaintiff’s complaint is that 6 in retaliation for allegedly exercising his rights of “speech, 7 expression, press & right(s) to redress,” he was arrested, 8 prosecuted, and convicted in Los Angeles County Superior Court Case 9 Nos. YA097929 and YA100270. (SAC at 8, 10-11). He contends the 10 retaliation occurred because of his public criticisms of the 11 Hermosa Beach Police Department. (SAC at 8, 11). The alleged 12 retaliation included falsified evidence, fictious incident 13 reports, and bad faith investigations by Defendants, which resulted 14 in Plaintiff’s arrest, trial, and conviction. (SAC at 3-8, 10- 15 11). Plaintiff seeks $122 million in damages, along with 16 declaratory and equitable relief. (SAC at 9). 17 18 III. 19 STANDARD OF REVIEW 20 21 Congress mandates that district courts initially screen civil 22 complaints filed by prisoners seeking redress from a governmental 23 entity or employee. 28 U.S.C. § 1915A. A court may dismiss such 24 a complaint, or any portion thereof, if the court concludes that 25 the complaint: (1) is frivolous or malicious, (2) fails to state a 26 claim upon which relief may be granted, or (3) seeks monetary 27 relief from a defendant who is immune from such relief. Id. 28 § 1915A(b)(1)–(2); see also id. § 1915(e)(2) (The court “shall 1 dismiss the case at any time if the court determines that . . . 2 the action . . . (i) is frivolous or malicious; (ii) fails to state 3 a claim on which relief may be granted; or (iii) seeks monetary 4 relief against a defendant who is immune from such relief.”); 5 accord Lopez v. Smith, 203 F.3d 1122, 1126–27 & n.7 (9th Cir. 2000) 6 (en banc). 7 8 Dismissal for failure to state a claim is appropriate if a 9 complaint fails to proffer “enough facts to state a claim for 10 relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 11 550 U.S. 544, 570 (2007). “A claim has facial plausibility when 12 the plaintiff pleads factual content that allows the court to draw 13 the reasonable inference that the defendant is liable for the 14 misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); 15 accord Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 16 1122 (9th Cir. 2013). A plaintiff must provide “more than labels 17 and conclusions” or a “formulaic recitation of the elements” of 18 his claim. Twombly, 550 U.S. at 555. However, “[s]pecific facts 19 are not necessary; the [complaint] need only give the defendant 20 fair notice of what the claim is and the grounds upon which it 21 rests.” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (per curiam) 22 (citation and alterations omitted). 23 24 In considering whether to dismiss a complaint, a court is 25 generally limited to the pleadings and must construe “[a]ll factual 26 allegations set forth in the complaint . . . as true and . . . in 27 the light most favorable” to the plaintiff. Lee v. City of Los 28 Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (citation omitted). 1 Moreover, pro se pleadings are “to be liberally construed” and 2 “held to less stringent standards” than those drafted by a lawyer. 3 Erickson, 551 U.S. at 94 (citation omitted); see also Hebbe v. 4 Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (“Iqbal incorporated the 5 Twombly pleading standard and Twombly did not alter courts’ 6 treatment of pro se filings; accordingly, we continue to construe 7 pro se filings liberally when evaluating them under Iqbal.”). 8 Nevertheless, dismissal for failure to state a claim can be 9 warranted based on either the lack of a cognizable legal theory or 10 the absence of factual support for a cognizable legal theory. 11 Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th 12 Cir. 2008). A complaint may also be dismissed for failure to state 13 a claim if it discloses some fact or complete defense that will 14 necessarily defeat the claim. Franklin v. Murphy, 745 F.2d 1221, 15 1228–29 (9th Cir. 1984). 16 17 IV. 18 DISCUSSION 19 20 Plaintiff’s Second Amended Complaint must be dismissed because 21 his claims are barred by Heck v. Humphrey, 512 U.S. 477 (1994). 22 In Heck, the Supreme Court held that a § 1983 complaint must be 23 dismissed if judgment in favor of the plaintiff would undermine 24 the validity of his conviction or sentence, unless the plaintiff 25 can demonstrate that the conviction or sentence has already been 26 invalidated. Id. at 486–87. The Heck Court explained: 27 28 1 [I]n order to recover damages for allegedly 2 unconstitutional conviction or imprisonment, or for 3 other harm caused by actions whose unlawfulness would 4 render a conviction or sentence invalid, a § 1983 5 plaintiff must prove that the conviction or sentence has 6 been reversed on direct appeal, expunged by executive 7 order, declared invalid by a state tribunal authorized 8 to make such determination, or called into question by a 9 federal court’s issuance of a writ of habeas corpus. A 10 claim for damages bearing that relationship to a 11 conviction or sentence that has not been so invalidated 12 is not cognizable under § 1983. 13 14 512 U.S. at 486–87 (footnote and citation omitted) (emphasis in 15 original). “Heck applies to claims seeking declaratory and 16 injunctive relief, as well as damages.” Lewis v. City of 17 Waxahachie, No. 10 CV 2578, 2011 WL 7070991, at *2 (N.D. Tex. Dec. 18 21, 2011), report and recommendation adopted, No. 10 CV 2578, 2012 19 WL 176681 (N.D. Tex. Jan. 20, 2012). Accordingly, the Ninth Circuit 20 has found that the Heck bar applies to claims of First Amendment 21 retaliation. Moschref v. Stratton, 697 F. App’x 532, 533 (9th Cir. 22 2017) (retaliation claim against police officer for making false 23 statements Heck barred); Smith v. Ball, 278 F. App’x 739, 741 (9th 24 Cir. 2008) (First Amendment retaliation claim Heck barred “because 25 prevailing on [the plaintiff’s] claim would imply the invalidity 26 of her criminal convictions arising from the same events”); see 27 also Gilles v. Davis, 427 F.3d 197, 209-12 (3d Cir. 2005) (finding 28 that the plaintiff’s § 1983 suit for First Amendment violations 1 was Heck barred); Luster v. Amezcua, No. 16 CV 0554, 2019 WL 2 1442992, at *8 (E.D. Cal. Apr. 1, 2019) (“Plaintiff’s First 3 Amendment retaliation claim against Defendant Amezcua is barred by 4 Heck because a favorable termination on the retaliation claim would 5 necessarily imply the invalidity of her misdemeanor conviction, 6 which has not been overturned.”); cf. Sheldon v. Hundley, 83 F.3d 7 231, 234 (8th Cir. 1996) (where the plaintiff’s “First Amendment 8 claims are so entangled with the propriety of the disciplinary 9 result, which triggered the loss of good-time credits, that ruling 10 in [the plaintiff's] favor on First Amendment grounds would 11 necessarily imply the invalidity of the disciplinary result and 12 the lengthened sentence,” the plaintiff’s First Amendment claims 13 are barred by Heck). 14 15 Here, Plaintiff asserts that in retaliation for exercising 16 his First Amendment rights, Defendants conducted a bad faith 17 investigation and falsified reports and evidence, which resulted 18 in his arrest, prosecution, and conviction. (SAC at 3–8, 10-11). 19 If successful, Plaintiff’s claims regarding Defendants’ 20 fabrication of evidence would undermine the validity of Plaintiff’s 21 conviction, for which he remains incarcerated. Indeed, in 22 Plaintiff’s recently filed habeas petition, he contends inter alia 23 that his conviction was the result of illegal First Amendment 24 retaliation by the Hermosa Police Department. See Bramscher v. 25 Koening, No. 20 CV 5378 (N.D. Cal. filed Aug. 4, 2020).2 Thus, 26

27 2 The Court takes judicial notice of federal court documents relevant to the disposition of this case. See Harris v. Cty. of 28 1 || Plaintiff's First Amendment claims would “necessarily imply” or 2 || “demonstrate” the invalidity of his conviction or sentence. The 3 || Heck doctrine therefore bars Plaintiff’s claims, and leave to amend 4 || would be futile. Accordingly, his Second Amended Complaint “must 5 || be dismissed” without leave to amend. See Smith v. City of Hemet, 6 || 394 F.3d 689, 695 (9th Cir. 2005). 7 8 Vv. 9 CONCLUSION 10 11 For the reasons discussed above, the Court DISMISSES the 12 || Second Amended Complaint WITHOUT LEAVE TO AMEND. 13 14 IT IS SO ORDERED. 15 16 || Dated: August 19, 2020 17 18 G73 KRerecin mn 19 R. GARY KLAUSNER

UNITED STATES DISTRICT JUDGE

20 21 22 23 24 25 26 2" notice of undisputed matters of public record, including documents 28 || on file in federal or state courts.”) (citation omitted).