CA9: Heck claims should be dismissed without prejudice

Heck claims should be dismissed without prejudice in case the plaintiff can invalidate the conviction. Lund v. California, 2021 U.S. App. LEXIS 32096 (9th Cir. Oct. 26, 2021). The case has a helpful explanation of Heck:

Under Heck, a 42 U.S.C. § 1983 claim must be dismissed if “a judgment in favor of the plaintiff would necessarily imply the invalidity of his conviction or sentence,” unless the conviction or sentence has already been invalidated. Heck, 512 U.S. at 487. Yount applies the same rule to claims under California state law. See 183 P.3d at 484. Thus, Heck and Yount bar a claim if it would negate an element of the offense or relies on facts inconsistent with the plaintiff’s extant conviction. See Smithart v. Towery, 79 F.3d 951, 952 (9th Cir. 1996) (“[I]f a criminal conviction arising out of the same facts stands and is fundamentally inconsistent with the unlawful behavior for which section 1983 damages are sought, the 1983 action must be dismissed.”).

Contrary to the Lunds’ argument, § 1983 claims predicated on Fourth Amendment violations are not categorically exempt from Heck preclusion. Szajer v. City of Los Angeles, 632 F.3d 607, 611 (9th Cir. 2011) (“Although footnote seven [of Heck] left open the question of the applicability of Heck to Fourth Amendment claims, this Court has since answered that question affirmatively.”). For example, because Claims 1 and 2 attack the probable cause basis for the search warrant that uncovered the child pornography for which Mr. Lund was convicted, the district court properly dismissed those claims as Heck-barred. See Whitaker v. Garcetti, 486 F.3d 572, 583-84 (9th Cir. 2007). Dismissal of the parallel state law claims—Claims 3, 4, and 5—as Yount-barred was proper for the same reason. See Yount, 183 P.3d at 484 (finding no reason to distinguish between federal and state law claims). Additionally, the Lunds do not challenge the dismissal of Claims 37, 38, and 43 as Heck-barred. However, the dismissal of any Heck/Yount-barred claims should have been without prejudice. See Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir. 1995). Therefore, we affirm the dismissal of claims 1-5, 37, 38, and 43 but remand to the district court with instructions to amend the judgment to reflect that the dismissal of these claims is without prejudice to refiling in the event Mr. Lund’s conviction is invalidated.

Conversely, Heck does not automatically bar a claim simply because the claim relates to events that pre-date Mr. Lund’s conviction; rather, to trigger the Heck/Yount bar, the claim must be fundamentally inconsistent with Mr. Lund’s conviction. See Smithart, 79 F.3d at 952. For example, Claim 45 alleges a Fourth Amendment violation resulting from the presence of third parties during the execution of a subsequent search warrant for the Lunds’ home following Mr. Lund’s arrest. A claim asserting that the presence of third parties during the search implicated Mr. Lund’s Fourth Amendment rights does not, on its face, impugn the probable cause for the search or otherwise rely on facts inconsistent with his conviction. See Wilson v. Layne, 526 U.S. 603, 614 n.2, 119 S. Ct. 1692, 143 L. Ed. 2d 818 (1999). At oral argument, counsel for the CHP defendants effectively conceded that some claims, such as Claim 45, might not imply the invalidity of Mr. Lund’s conviction as pled but argued the claims fail to state a cognizable theory for relief on the merits. We leave it to the defendants to argue specifically and the district court to determine in the first instance whether each individual claim necessarily implies the invalidity of Mr. Lund’s conviction or warrants dismissal on other grounds. Thus, we vacate the dismissal of Claims 6-35, 39-42, 44-59, 65-67, and 69-73 and remand for further proceedings consistent with this decision.