California ex rel. Bybee v. Erath

83 F. App'x 971

Opinion

MEMORANDUM

Footnotes

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Gayle Bybee, Carla Figaro, Nora Moore, Teresa Giordano, and Denise Ricca-White appeal pro se the district court’s judgment dismissing their Bivens action alleging that prosecutors and Internal Revenue Service (“IRS”) agents violated their Constitutional rights by preparing and serving fraudulent grand jury subpoenas. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the dismissal of a Bivens action for failure to state a claim. See Libas Ltd. v. Carillo, 329 F.3d 1128, 1130 (9th Cir.2003). We review for abuse of discretion a district court’s denial of a motion for reconsideration. See Minnesota Mut. Life Ins. Co. v. Ensley, 174 F.3d 977, 987 (9th Cir.1999). We affirm.

The district court properly dismissed under Heck v. Humphrey, 512 U.S. 477, 486-87, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994), the claims brought by Bybee, Moore, and Giordano because a favorable outcome would undermine the criminal charges pending against them. See Harvey v. Waldron, 210 F.3d 1008, 1014 (9th Cir.2000) {“Heck applies to pending criminal charges, and [ ] a claim, that if successful would necessarily imply the invalidity of a conviction in a pending criminal prosecution, does not accrue so long as the potential for a conviction in the pending criminal prosecution continues to exist.”). We construe the judgment as to these defendants as a dismissal without prejudice. See Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir.1995) (per cu-riam).

The district court properly dismissed the claims brought by Figaro and Ricca-White because they could not show any legally-cognizable constitutional injury stemming from the subpoenas. See Crist v. Leippe, 138 F.3d 801, 805 (9th Cir.1998) (holding Bivens plaintiff must show injury to recover damages); Matter of Grand Jury Subpoena Issued to Chesnoff, 62 F.3d 1144, 1145 (9th Cir.1995) (dismissing appeal for lack of standing because litigant who was not the subject of the criminal investigation had not suffered injury adequate to satisfy Article Ill’s case-or-controversy requirement).

The district court properly concluded appellants’ motion to quash was moot. See Fed.R.Crim.P. 17(c).

Appellants’ remaining contentions are unpersuasive.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.