FAIRBANK, District Judge.
PROCEEDINGS (IN CHAMBERS): RULING ON DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS OR, IN THE ALTERNATIVE, TO ABATE PROCEEDINGS PENDING RESOLUTION OF STATE PROCEEDINGS
Pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Rule 7-15, the Court finds that this matter is appropriate for decision without oral argument. The hearing calendared for July 23, 2007 at 1:30 p.m. is hereby vacated and the matter taken off calendar.
The Court has read and considered Defendants’ Motion for Judgment on the Pleadings Pursuant to Federal Rule of Civil Procedure 12(c) or, in the Alternative, to Abate Proceedings Pending Resolution of State Proceedings. The Court has also read and considered the Opposition and Reply papers filed in response. The Court grants Defendants’ Request for Judicial Notice of Exhibits A and B. After considering the papers filed, and the applicable legal authorities cited, the Court GRANTS IN PART and DENIES IN PART Defendants’ Motion for Judgment on the Pleadings.
Specifically, the Court makes the following rulings:
(1)Defendants’ Motion for Judgment on the Pleadings is DENIED without prejudice as to Plaintiffs First, Second, and Third Causes of Action. Despite the strength of the arguments made by Defendants based on the authority of
Heck v. Humphrey,
the cases cited by Defendants considering the application of
Heck,
though relevant, do no provide sufficient support for Defendants’ Motion at this time. In this case, unlike in
Heck,
the Court cannot, based on the record before it, conclude that Plaintiffs civil rights suit would
“necessarily
imply the invalidity of the [plaintiffs] conviction or sentence.” 512 U.S. 477, 487, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994) (emph.added).
The case of
Walker v. Fresno Police Dep’t,
2006 WL 1084778 (E.D.Cal.2006), cited by Defendants in their Reply, is distinguishable because it was decided in the context of summary judgment, with a full factual record. Although
Franklin v. County of Riverside,
971 F.Supp. 1332 (C.D.Cal.1997), also cited in Defendants’ Reply, was decided at the pleading stage, it is distinguishable because the plaintiff in that ease claimed that he was subjected to excessive and unreasonable force
during
his arrest.
Id.
at 1336. The Fifth Circuit made a similar finding in
DeLeon v. City of Corpus Christi,
488 F.3d 649 (5th Cir.2007). The Fifth Circuit concluded that “DeLeon’s excessive force claims are inseparable from the rest,” finding that the plaintiff alleged a single violent encounter throughout which the police allegedly used excessive force. The pleadings in this case, unlike
DeLeon,
do not permit such a finding at this time.
This ruling is without prejudice to Defendants’ right to seek judgment as to these Section 1983 causes of action later in these proceedings when the Court can consider evidence beyond the pleadings, e.g. in the context of a motion for partial summary judgment.
(2) Defendants’ Motion for Judgment on the Pleadings is GRANTED with leave to amend as to Plaintiffs Fourth and Fifth Causes of Action, on the ground that Plaintiff fails to allege the requisite elements of a RICO cause of action, namely, that Defendants engaged in at least two acts of “racketeering activity,” as that term is defined under 18 U.S.C. § 1961(1). Plaintiff shall have twenty (20) days leave to amend and Defendants shall have 20 days to respond.
(3) The Motion of Defendant Leroy Baca in his
official capacity
for Judgment
on the Pleadings as to Plaintiffs Fourth and Fifth Causes of Action is GRANTED without leave to amend.
(4) Defendants’ alternative request that the Court abate proceedings pending resolution of state proceedings is DENIED.
DISCUSSION
Plaintiff S.R. Curry (“Plaintiff’) has filed the instant civil rights action against Sheriff Leroy Baca, William Stonich, Michael Antonovich, Yvonne Burke, Gloria Molina, Don Knabe, Zev Yaroslavsky, Joseph Garrido, Agostino Brancanto, and Lieutenant Jack Jordan based on events that took place on November 29, 2004.
These same events were the subject of a recent state criminal proceeding in which Plaintiff was convicted by a jury of two counts of assault on a peace officer/firefighter with a semiautomatic firearm, and one count of possession of a firearm by a felon with a prior conviction.
(See
Exs. A [felony complaint for arrest warrant] and B [certified criminal docket] to Def. RJN.) Plaintiffs Complaint asserts the following claims: (1) a Section 1983 claim (unconstitutional search and seizure and excessive force in violation of the Fourth and Fourteenth Amendments); (2) a Section 1983 conspiracy claim; (3) a Section 1985 conspiracy claim; (4) a claim based on the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961 et seq. (“RICO”); (5) a RICO conspiracy claim; and (6) state law claims for false arrest, false imprisonment, assault, and battery.
Now that the state criminal proceeding is concluded, Defendants Baca, Stonich, Garrido, Bancanto, and Jordan (“Defendants”) have filed a Motion for Judgment on the Pleadings Under FRCP 12(c), or, in the Alternative, to Abate Proceedings Pending Resolution of State Proceedings.
A.
Legal Standard
Rule 12(c) states, in pertinent part, that “[a]fter the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings.”
The standard applied on a Rule 12(c) motion is essentially the same as that applied on Rule 12(b)(6) motions to dismiss: i.e., judgment on the pleadings is appropriate when, even if all material facts in the pleading under attack are true, the moving party is entitled to judgment as a matter of law. Schwarzer, et al., Cal. PRAC. Guide: Fed. Civ. Pro. Befoee Trial, § 9:335 (The Rutter Group 2007).
Rule 12(c) does not specifically authorize a motion for judgment on the pleadings directed to less than the entire complaint
or answer. Nor does it specifically prohibit such a motion. It is the practice of many judges to permit “partial” judgment on the pleadings, if appropriate. Moreover, courts have discretion to grant a Rule 12(c) motion with leave to amend; courts also have discretion simply to grant dismissal of the action instead of entry of judgment.
Id.
at §§ 9:340, 9:341 (The Rut-ter Group 2007).
B.
Analysis
The case law addressing the application of
Heck
in the context of § 1983 actions is highly fact specific. Although a general reading of
Heck
appears to support Defendants’ position that Plaintiffs Section 1983 action is barred as a matter of law, subsequent Ninth Circuit cases interpreting
Heck
reach differing results based exclusively on the facts presented. In considering these Ninth Circuit cases and the facts presented therein, and applying the relevant legal standards to the instant action, the Court finds that Defendants have failed to establish that they are entitled to judgment as a matter of law on Plaintiffs Section 1983 action.
1.
Defendants Fail to Establish that Plaintiff’s Section 1983 Action is Barred by Heck v. Humphrey
In
Heck v. Humphrey,
the Supreme Court held that where the facts underlying both a criminal conviction or sentence and a § 1983 action are the same, “no cause of action under Section 1983 [exists] unless and until the conviction or sentence is reversed, expunged, invalidated, or impugned by the grant of a writ of habeas corpus.” 512 U.S. 477, 489, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994). In
Heck,
the district court dismissed a Section 1983 action without prejudice because the issues it raised “directly implicated] the legality of [plaintiffs] confinement.”
Id.
at 479, 114 S.Ct. 2364. The Supreme Court, in reviewing the Seventh Circuit’s affirmance, held that a Section 1983 cause of action for damages attributable to an unconstitutional conviction or sentence does not accrue until the conviction or sentence has been invalidated.
Heck,
512 U.S. at 490, 114 S.Ct. 2364. Specifically, the Court stated:
[W]hen a state prisoner seeks damages in a § 1983 suit, the district court must consider whether a judgment in favor of the plaintiff would
necessarily
imply the invalidity of his conviction or sentence; if it would, the complaint must be dismissed unless the plaintiff can demonstrate that the conviction or sentence has already been invalidated. But if the district court determines that the plaintiffs action, even if successful, will
not
demonstrate the invalidity of any outstanding criminal judgment against the plaintiff, the action should be allowed to proceed, in the absence of some other bar to the suit.
Id.
at 487, 114 S.Ct. 2364 (emph. added in part).
Here,
Heck
has direct application to Plaintiffs Section 1983 cause of action for damages because Plaintiffs state criminal conviction is based on the same set of facts as is his Section 1983 action, and Plaintiffs criminal conviction has not been invalidated. In order to be convicted under California Penal Code § 245(d)(2) (assault on a peace officer with a firearm), which Plaintiff was, the prosecution must establish that the peace officer was “engaged in the [lawful] performance of his or her duties” at the time of the arrest. Cal.Penal Code § 417(c);
see also Smith v. City of Hemet,
394 F.3d 689, 695 (9th Cir.2005) (analyzing applicability of
Heck
defense and stating that “in California, the lawfulness of the officer’s conduct is an essential element of the [alleged] offense.”);
People v. Simons,
42 Cal.App.4th 1100, 1108, 50 Cal.Rptr.2d 351 (1996). In his Complaint, Plaintiff alleges that the officers who arrested him,
Defendant Deputies Garrido and Brancan-to, used excessive force against him. (Compl., ¶ 12.) Because unreasonable and excessive force in effecting arrest constitutes a public offense, Plaintiffs allegation necessarily implies that the arrest was unlawful.
See People v. Olguin,
119 Cal.App.3d 39, 45, 173 Cal.Rptr. 663 (1981) (holding “an arrest made with excessive force is equally unlawful. [It] is a public offense for a peace officer to use unreasonable and excessive force in effecting an arrest.”) (internal citation omitted). As Defendants aptly assert, a determination that the defendant officers used excessive force when attempting to arrest Plaintiff would imply that the element of being engaged in the lawful performance of their official duties was not satisfied, and that the conviction under California Penal Code § 245(d)(2) is invalid.
See Heck,
512 U.S. at 487, 114 S.Ct. 2364; Motion for Judgment on Pleadings, at 4. Such a conclusion is in direct contravention of the Court’s holding in
Heck.
However, as Plaintiff points out in his Opposition, there is Ninth Circuit case law addressing the application of
Heck
in the context of Section 1983 suits, wherein the court found that
Heck
did not operate to bar the Section 1983 suit even in the face of underlying convictions that had not been invalidated. (PI. Opp., at 7-9.) These cases present a difficult issue to be decided by this Court, but ultimately they support a finding that, based on the factual evidence presented,
Heck
does not operate to bar Plaintiffs Section 1983 action at this time based on the pleading.
In
Smith v. City of Hemet,
394 F.3d 689 (9th Cir.2005), Plaintiff filed a Section 1983 complaint alleging that defendant officers used excessive force when they sprayed him with pepper spray and sicced a police canine on him. The plaintiff, in a separate state criminal suit, pled guilty to willfully resisting, delaying, or obstructing a peace officer in the discharge of his or her office or employment based on this same incident.
Smith,
394 F.3d at 694. The officers moved for summary judgment on several grounds, among them that
Heck
barred plaintiffs Section 1983 action. The plaintiff responded that the defendants unlawfully used excessive force against him
after
he had committed the acts on which his conviction was based, and thus a ruling in his favor would not imply that his conviction was invalid.
Id.
at 696. In concluding that
Heck
did not bar the plaintiffs Section 1983 action, the Ninth Circuit held:
Smith engaged in at least three or four acts in violation of § 148(a)(1) before the officers used force against him. These acts of willful resistance, delay, or obstruction occurred prior to the time that the officers had determined to arrest him for any criminal conduct. Indeed, they occurred in the course of the officers’ lawful performance of their duty to
investigate
whether an offense had occurred. The acts by Smith include twice refusing to take his hands out of his pockets, reentering his home once; repeatedly refusing to put his hands on his head and come down off the porch, and, finally refusing to put his hands on his head and turn around. Each of these acts constituted a violation of § 148(a)(1) sufficient to warrant the filing of a criminal charge. Each could support a conviction under that section for obstructing the criminal investigation.
Under Heck, Smith would be allowed to bring a § 1983 action, however, if the use of excessive force occurred
subsequent to
the conduct on which his conviction was based. Specifically, Smith would be entitled to proceed below if his conviction were based on unlawful behavior that took place while he stood alone and untouched on his porch-that
is, if his unlawful conduct occurred while the officers were attempting to investigate his wife’s complaint. In such case, a judgment in Smith’s favor would not necessarily conflict with his conviction because his acts of resistance, delay, or obstruction would have occurred while the officers were engaged in the lawful performance of their investigative duties, not while they were engaged in effecting an arrest by the use of excessive force.
Id.
at 697-98: As Plaintiff aptly points out,
Smith
reads a temporal requirement into the application of
Heck
in Section 1983 actions.
In the instant action, Plaintiff alleges that following an unlawful entry on to his property, Defendant Deputies “assaulted [him], chased him, and then cold-bloodedly shot him numerous times, thereby using excessive force against him, and thereby attempting to murder him.” (Compl., ¶ 12.) However, Defendants have not established, other than by way of conclusory statements, that the acts alleged occurred during the course of effecting Plaintiffs arrest. Without specific factual evidence concerning the circumstances under which the arrest took place, Defendants’ blanket assertions that
Heck
bars Plaintiffs Section 1983 action because (1) his convictions required proof that Defendants acted lawfully at the time of the arrest, (2) it is unreasonable for a peace officer to use excessive force in effecting an arrest, and (3) Plaintiffs allegations of excessive force in the instant action necessarily imply the invalidity of his criminal convictions, are insufficient to establish that Defendants are entitled to judgment as a matter of law.
In
Smithart v. Towery,
79 F.3d 951 (9th Cir.1996) (per curiam), a prisoner who had pleaded guilty to charges of assault with a deadly weapon and whose conviction had not been reversed, expunged, invalidated, or called into question by issuance of writ of habeas corpus brought a federal civil rights action against officers based on alleged use of excessive force. The court, without explanation, held that the plaintiffs claims alleging use of excessive force were not barred under
Heck
because “a successful section 1983 action for excessive force would not necessarily imply the invalidity of Smithart’s arrest or conviction.”
Smithart,
79 F.3d at 952. Though it is unclear on what basis the Ninth Circuit arrived at its decision, it appears to rest in part on. Smithart’s allegations that defendants used force far greater than that required for his arrest, and out of proportion to the threat he posed to defendants.
Id.
Smithart alleged that the defendant officers “assaulted, arrested, handcuffed, and beat Smithart with their batons, feet, and fists. Defendants allegedly beat Smit-hart ‘beyond recognition with unnecessary force’ until Smithart, an unarmed fifty-nine year-old Native American, had a broken arm, two broken legs, numerous contusions, and internal injuries.”
Id.
In the instant case, Plaintiff alleges that Defendants Broncanto and Garrido “assaulted [him], chased him, and then cold-bloodedly shot him. numerous times ... thereby attempting to murder him.” (Compl., ¶ 12.) Defendants do not offer any argument or provide any evidence-nor could they properly do so at this stage in the proceedings-supporting a conclusion that the amount of force used was proportionate to the threat posed by Plaintiff. However, insofar as “lawful performance of official duties” was a requisite element to be proved by the prosecution in Plaintiffs criminal action, and because excessive force constitutes unlawful action,
Olguin,
119 Cal.App.3d at 45, 173 Cal.Rptr. 663, Plaintiffs criminal conviction for assault on a peace officer with a deadly weapon necessarily required a finding of reasonable force. Any finding to the contrary under
Plaintiffs Section 1983 action would implicate the validity of Plaintiffs criminal conviction, thereby running afoul of
Heck.
Thus, on this basis
Smithart
appears factually distinct and unsupportive of Plaintiffs position that
Heck
does not operate to bar his Section 1983 action.
Finally, Plaintiff relies on
Cabrera v. City of Huntington Park,
159 F.3d 374 (9th Cir.1998) in support of his position that
Heck
does not operate to bar his Section 1983 action. In
Cabrera,
Plaintiff brought a Section 1983 action against city and police officers, asserting claims of false arrest and imprisonment, excessive force, cover-up of alleged Fourth Amendment violations, and malicious prosecution. Plaintiffs civil rights action followed his earlier conviction, based on the same events, for disturbing the peace.
Cabrera,
159 F.3d at 377. In evaluating Plaintiffs claims for use of excessive force and official cover-up of the alleged Fourth Amendment violations, the Ninth Circuit, again without explanation for its decision, held that such claims, “if successful, would not necessarily imply the invalidity of [Plaintiffs] conviction.”
Id.
at 380-81.
Although the rationale for the court’s holding in Cabrera-as concerns the excessive force and cover up claims-is unclear, at the very least the case supports the conclusion that a blanket application of
Heck
in cases involving underlying criminal convictions that are based on the same facts as the Section 1983 action but have yet to be invalidated is not necessarily appropriate, as Defendants suggest.
For these reasons, the Court denies Defendants’ Motion for Judgment on the Pleadings as to Plaintiffs First Cause of Action for violation of 42 U.S.C. § 1983.
With respect to Plaintiffs conspiracy claims under Sections 1983 and 1985 (Counts II and III), they do appear to be barred under the reasoning espoused in
Heck
insofar as they rely on allegations that Defendants attempted to “cover-up” the absence of an actual gun used by Plaintiff, and instead discovered a “throw away” gun at the scene of the crime.
(See
Compl., ¶ 14.) In addition to his two convictions for assault on a peace officer, Plaintiff was convicted of one count of possession of a firearm by a felon.
(See
Ex. B to Def. RJN, at 26.) Plaintiffs convictions for assault with a semi-automatic firearm upon a peace officer required the prosecution to establish that plaintiff used, exhibited and possessed a firearm.
(See
Cal.Penal Code § 245(d)(2); Motion, at 4.) Thus, a determination in this ease that Defendant Deputies unlawfully planted and tainted the firearm introduced at Plaintiffs criminal trial to cover up their wrongful use of excessive force would impermissibly imply that the resulting convictions are invalid. Again, such a conclusion would run afoul of the holding in
Heck. However,
to the extent Plaintiffs conspiracy claims rely on allegations that Defendants conspired to use excessive force against Plaintiff, they would not be barred under
Heck
for the same reasons discussed above.
{See
Compl., ¶ 18 [alleging that “there was an agreement or understanding between or among defendants to engage in
all of the conduct alleged herein to be wrongful
.... ”].)
For these reasons, the Court denies Defendants’ Motion for Judgment on the Pleadings as to Plaintiffs Second and Third Causes of Action for conspiracy in violation of 42 U.S.C. § 1983 and 42 U.S.C. § 1985. Taking the allegations set forth in
the Complaint as true, and following consideration of the applicable case law, Defendants have not demonstrated that they are entitled to judgment as a matter of law.
See
Schwarzer, Cal. PRAC. Guide, § 9:335.
Although Defendants assert that Plaintiffs RICO and RICO conspiracy claims are likewise barred under the Supreme Court’s holding in
Heck,
the Court refuses to adopt the same conclusion in light of Heck’s specific application to Section 1983 cases. Moreover, because there are separate legal grounds on which to dismiss Plaintiffs RICO claims, the Court finds it unnecessary to analyze by analogy whether
Heck
also applies in civil actions asserting violations of RICO.
2.
Plaintiff’s Fourth and Fifth Causes of Action for Violations of the RICO Act are Barred as a Matter of Law Because Plaintiff Has Failed to Adequately Allege the Requisite Elements of the Offense
RICO grants a private right of action to any person “injured in his business or property by reason of a violation of section 1962.” 18 U.S.C. § 1964(c). Liability under § 1962(c) requires proof of: (1) conduct; (2) of an enterprise; (3) through a pattern; (4) of racketeering activity.
Sedima, S.P.R.L. v. Imrex Co.,
473 U.S. 479, 496, 105 S.Ct. 3275, 87 L.Ed.2d 346 (1985). “Racketeering activity” is any act indictable under several provisions of Title 18 of the United States Code.
See
18 U.S.C. § 1961.
a.
Plaintiff Has Adequately Pleaded Standing to Maintain a RICO Cause of Action
It is well-settled that personal injuries are not compensable under RICO.
See Oscar v. Univ., Students Co-op. Ass’n,
965 F.2d 783, 785 (9th Cir.1992). The Ninth Circuit has held that “[wjithout a harm to a specific business or property interest — a categorical inquiry typically determined by reference to state law — there is no injury to business or property within the meaning of RICO.”
Diaz v. Gates,
420 F.3d 897, 900 (9th Cir.2005).
Plaintiffs Complaint alleges that Plaintiff was kidnapped on November 29, 2004, and that this kidnapping and false arrest purportedly injured Plaintiffs person and property, including loss of wages and employment opportunities. (Compl., ¶¶ 24-29.) However, Plaintiffs Complaint does not allege the elements of a kidnapping claim, and fails to state, in other than conclusory fashion, the injury to his interest in employment.
(See
Motion for Judgment on Pleadings, at 7.) Notwithstanding these deficiencies, under Federal Rule of Civil Procedure 8(a)’s liberal pleading standard Plaintiffs allegations arguably satisfy the standing requirement under the RICO Act.
b.
Plaintiff’s RICO Action Does Not Fail On the Basis that Public Entities Cannot Be Held Liable Under RICO, Because Plaintiff Has Sued Defendants in Both their Official and Individual Capacities
Defendants assert that because public entities cannot form the requisite criminal
intent to commit a RICO violation, and because suits against public employees-like individually named defendants in their official capacities-are the same as suits against the County of Los Angeles, it is impossible for Plaintiff to allege a valid RICO cause of action against Sheriff Leroy Baca. (Motion for Judgment on Pleadings, at 7-8; Reply, at 9-11.)
In
Pedrina v. Chun,
97 F.3d 1296, 1300 (9th Cir.1996), the Ninth Circuit summarily rejected residential tenants’ RICO claims against the City of Honolulu. In doing so, the court unequivocally reiterated its previous holding that “ ‘governmental entities are incapable of forming [the] malicious intent necessary to support a RICO action.’ ”
Pedrina,
97 F.3d at 1300 (quoting
Lancaster Comm. Hosp. v. Antelope Valley Hosp.,
940 F.2d 397, 404 (9th Cir.1991)).
What is more, the Supreme Court has repeatedly held that suits against a public official in his official capacity equate to suits against the government body itself and therefore will not he.
See, e.g., Will v. Michigan Dept. of State Police,
491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (“a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official’s office”);
Karcher v. May,
484 U.S. 72, 78, 108 S.Ct. 388, 98 L.Ed.2d 327 (1987) (“the real party in interest in an official capacity suit is the entity represented and not the individual office holder”);
Brandon v. Holt,
469 U.S. 464, 471-72, 105 S.Ct. 873, 83 L.Ed.2d 878 (1985) (a complaint naming a government official in his or her official capacity seeks recovery against the government body itself).
Plaintiff contends that because he did not name the County of Los Angeles as a defendant in his Complaint, RICO actions against Defendants in their official capacities will lie. (PI. Opp., at 14-15.) Plaintiffs position lacks merit. Under the line of cases discussed above, Defendants accurately assert that Plaintiffs RICO cause of action against Defendant Baca in his official capacity equates to a RICO suit against the County of Los Angeles. (Motion for Judgment on Pleading, at 8.) This conclusion is buttressed by the fact that
Brandon
did not involve a RICO suit against a public entity and yet the Court still held that official capacity suits equate to public entity suits, and are therefore impermissible. 469 U.S. at 469, 105 S.Ct. 873.
However,
because Plaintiff has sued Defendants in both their official
and
individual capacities, Plaintiffs RICO causes of action do not completely fail against Defendant Baca.
{See
Compl., ¶ 5.) Only Plaintiffs cause of action against Defendant Baca in his official capacity is barred as a matter of law.
c.
Plaintiff Fails to Allege the Requisite Elements of a RICO Cause of Action
A civil RICO claim does not lie unless a plaintiff alleges facts that, if taken as true, amount to “racketeering activity.”
Berger v. Pierce,
933 F.2d 393, 397 (6th Cir.1991). The Ninth Circuit, in analyzing four seminal Supreme Court RICO cases, has held that “the general instruction [is] that we should not read the statutory terms of RICO narrowly. Rather ... RICO should be liberally construed to effectuate its remedial purposes.”
Odom v. Microsoft
Corp.,
486 F.3d 541 (9th Cir.2007) (internal quotations and citations omitted).
Defendants cite to
Bowen v. Oistead,
125 F.3d 800, 806 (9th Cir.1997), for the proposition that notwithstanding the rule of construction set down in
Odom,
the Ninth Circuit has also determined that civil rights violations are not within the definition of racketeering activity. (Motion for Judgment on the Pleadings, at 9.) Though Defendants statement of the law is accurate,
Bowen
is factually distinct from the instant case. In
Bowen,
the plaintiffs complaint alleged, as part of its RICO claim, that “the actions of the individual defendants constitutes [sic] a criminal conspiracy to deprive [Bowen] of his civil rights and to injure his reputation and standing in the community.” 125 F.3d at 806. Plaintiff in the instant action has not alleged that the RICO acts complained of have affected his civil rights in any way. To the contrary, Plaintiffs Complaint sets forth separate and distinct causes of action for civil rights violations and RICO violations. Although the acts forming the basis for both causes of action are the same, Plaintiff does not allege in his RICO cause of action that his alleged civil rights violations serve as the basis for his RICO action.
(See
Compl., ¶ 20-30.)
Moreover, to state a claim under RICO, Plaintiff must demonstrate that Defendants engaged in at least
two
acts of “racketeering activity,” as that term is defined in 18 U.S.C. § 1961(1). The acts must not only be related; they may not be isolated or sporadic.
Sun Savings & Loan Ass’n v. Dierdorff,
825 F.2d 187, 192 (9th Cir.1987). Plaintiffs RICO cause of action is allegedly based on the November 29, 2004 incident. However, even if this incident was true, it constitutes only a single predicate act.
(See
Motion for Judgment on Pleadings, at 10.) Plaintiff fails to allege facts concerning any other acts that would qualify as predicate acts under RICO.
Plaintiffs Complaint refers to the following acts of “racketeering”: attempted murder, murder, kidnapping, extortion, and dealing in controlled substances. (Compl., ¶ 24.) Plaintiff also refers in his Opposition to allegations of mail fraud (which the Court does not find anywhere in the Complaint) and obstruction of justice. (PI. Opp., at 22;
see also
Compl., ¶ 24.) Although such acts do constitute predicate acts under 18 U.S.C. § 1961(1), Plaintiffs RICO action nonetheless fails because even assuming Plaintiff has adequately pled predicate acts for purpose of his RICO action, he has not demonstrated the requisite “pattern” of racketeering activity. All of the acts alleged stem from a single incident occurring in November 2004, and Plaintiff does not refer to any other instances of racketeering activity. Plaintiff does allege that “Defendants unlawfully have engaged in the racketeering activities ... on perhaps 100 occasions during the past 10 years,” but without more this conclusory allegation is insufficient to establish the requisite element of a pattern of racketeering activity.
(See
Compl., ¶ 29.)
In addition to failing to satisfy the requisite elements of his RICO cause of action, Plaintiff also fails to plead the requisite elements of his RICO conspiracy cause of action. Section 1962(d) prohibits anyone from conspiring to violate the provisions of 18 U.S.C. § 1962(c). Under Section 1962(d), Plaintiff must show that Defendants objectively manifested their agreement to participate in a racketeering enterprise through the commission of two or more predicate crimes.
Baumer v. Pachl,
8 F.3d 1341, 1346-47 (9th Cir.1993). Just as the court found of the Complaint in
Baumer,
Plaintiffs Complaint in the instant action is bereft of any allegation of
“conspiracy” or “agreement.” Nor are facts pled sufficient to infer such an agreement.
Plaintiff has failed to plead the requisite elements of both his RICO and RICO conspiracy causes of action (Counts Four and Five). Consequently, the Court grants Defendants’ Rule 12(c) Motion for Judgment on the Pleadings with leave to amend.
See
Schwarzer, Cal. PRac. Guide, §§ 9:340, 9:341 (noting courts have discretion to grant partial judgment on the pleadings or to grant a Rule 12(c) motion with leave to amend).
3.
Defendants Have Not Demonstrated Sufficient Justification for Reinstating a Stay.
Defendants ask the Court to reinstate the stay that was lifted on April 23, 2007 following Plaintiffs sentencing in the underlying criminal convictions. Defendants assert that under principles of comity and federalism, a stay is again appropriate now that Defendants are informed that Plaintiff has appealed his convictions.
(See
Motion for Judgment on Pleadings, at 12-13; Clark Deck, ¶ 3.)
The Court finds that there would be no unnecessary expenditure of resources or conflicting jurisdictional issues if this Court proceeds with the instant action while Plaintiffs state criminal appeal is pending. For the reasons discussed above, an affirmation by the appellate court of Plaintiffs convictions would not, based on the record before the Court at this time, necessarily preclude Plaintiffs Section 1983 suit under
Heck.
Alternatively, a reversal on appeal of Plaintiffs convictions would make
Heck
inapplicable altogether since the rule of
Heck
relies on the existence of underlying criminal convictions, the facts of which form the basis for a subsequent § 1983 action, and which have
not
been reversed, expunged, invalidated, or called into question by issuance of writ of habeas corpus.
For these reasons, Defendants’ Motion for Judgment on the Pleadings is DENIED without prejudice as to Plaintiffs First, Second, and Third Causes of Action, and GRANTED with leave to amend as to Plaintiffs Fourth and Fifth Causes of Action. Furthermore, Defendants’ request that the Court stay the action pending resolution of Plaintiffs criminal appeal should be DENIED.
IT IS SO ORDERED.