1 WO KM 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Emmet Darnell Wall, No. CV 19-02981-PHX-JAT (JFM) 10 Plaintiff, 11 v. ORDER 12 Jeri Williams, et al., 13 Defendants.
14 15 Because Plaintiff has pleaded guilty to the criminal charges against him in Maricopa 16 County Superior Court, case number CR 2018-002942, the Court will lift the stay in this 17 case and order Defendant Mullen to answer the Second Amended Complaint (Doc. 13), as 18 described below. 19 I. Background 20 On May 10, 2019, Plaintiff Emmet Darnell Wall, who is confined in a Maricopa 21 County Jail and proceeding in forma pauperis, filed a pro se civil rights Complaint pursuant 22 to 42 U.S.C. § 1983. In a July 25, 2019 Order, the Court dismissed the Complaint because 23 Plaintiff had failed to state a claim. On August 7, 2019, Plaintiff filed a First Amended 24 Complaint. In a November 1, 2019 Order, the Court ordered service on Defendant Mullen 25 and required Defendant Mullen to file a brief providing the Court with the status of any 26 relevant criminal cases against Plaintiff and discussing the applicability of a stay under 27 Gilbertson v. Albright, 381 F.3d 965 (9th Cir. 2004), and Wallace v. Kato, 549 U.S. 384 28 (2007). 1 On January 2, 2020, Plaintiff filed a Second Amended Complaint. In a February 2 14, 2020 Order, the Court informed Plaintiff that because the Second Amended Complaint 3 still raises claims to which Gilbertson and Wallace may apply, the Court would not screen 4 the Second Amended Complaint until it had received the required brief from Defendant. 5 On March 24, 2020, Plaintiff filed a “Declaration of Default,” seeking an entry of 6 default in this case. On April 30, 2020, the Court issued an Order to Show Cause requiring 7 Defendant to show cause why default should not be entered in this case. On May 29, 2020, 8 Defendant Mullen filed, through counsel, a Response to the Order to Show Cause, asserting 9 default should not be entered because he had not been properly served. In a June 12, 2020 10 Order, the Court denied the Declaration of Default and issued instructions for service of 11 Defendant Mullen. On September 4, 2020, Defendant Mullen filed the required Wallace 12 and Gilbertson brief. 13 In a September 8, 2020 Order, the Court screened the Second Amended Complaint; 14 determined Plaintiff adequately stated a Fourth Amendment claim in Count One against 15 Defendant Mullen regarding the allegedly warrantless search of Plaintiff’s cell phone; 16 dismissed the false arrest, racial profiling, and vehicle search claims in Count One; and 17 dismissed Count Two entirely. However, because Plaintiff’s criminal proceedings 18 stemming from the arrest at issue were still pending in the Maricopa County Superior 19 Court, the Court stayed this case until the criminal charges against Plaintiff were resolved. 20 On March 31, 2022, Plaintiff pleaded guilty to transportation of a narcotic for sale.1 21 II. Conclusion of Criminal Proceedings and Answer Required 22 As previously mentioned, the only remaining claim in Plaintiff’s Second 23 Amendment Complaint is Plaintiff’s assertion in Count One that Defendant Mullen 24 violated his Fourth Amendment rights on November 21, 2017, when he searched Plaintiff’s 25 cell phone without a warrant. Plaintiff claims he suffered an invasion of privacy, undue 26 stress, mental anguish, and “intrusion upon seclusion” as a result of the search. 27
28 1 See http://www.superiorcourt.maricopa.gov/docket/CriminalCourtCases/case Info.asp?caseNumber=CR2018-002942 (last visited Apr. 27, 2022). 1 Under Heck v. Humphrey, 512 U.S. 477 (1994), a prisoner’s claim for damages 2 cannot be brought under 42 U.S.C. § 1983 if “a judgment in favor of the plaintiff would 3 necessarily imply the invalidity of his conviction or sentence,” unless the prisoner 4 demonstrates that the conviction or sentence has previously been reversed, expunged, or 5 otherwise invalidated. Heck, 512 U.S. at 486-87. Thus, to the extent Plaintiff is asserting 6 that evidence collected during the alleged search and seizure caused his conviction, his 7 claim is barred by Heck. See Belanus v. Clark, 796 F.3d 1021, 1024 (9th Cir. 2015). 8 But if “the plaintiff’s action, even if successful, will not demonstrate the invalidity 9 of any outstanding criminal judgment against the plaintiff, the action should be allowed to 10 proceed, in the absence of some other bar to the suit.” Heck, 512 U.S. at 487 (footnotes 11 omitted). As the Supreme Court explained, 12 a suit for damages attributable to an allegedly unreasonable search may lie even if the challenged search produced evidence that was 13 introduced in a state criminal trial resulting in the § 1983 plaintiff’s still-outstanding conviction. Because of doctrines like independent 14 source and inevitable discovery, and especially harmless error, such a 15 § 1983 action, even if successful, would not necessarily imply that the plaintiff’s conviction was unlawful. In order to recover compensatory 16 damages, however, the § 1983 plaintiff must prove not only that the 17 search was unlawful, but that it caused him actual, compensable injury, which, we hold today, does not encompass the “injury” of 18 being convicted and imprisoned (until his conviction has been 19 overturned). 20 Id. at 487 n.7 (citations omitted). See also Byrd v. Phoenix Police Dep’t, 885 F.3d 639, 21 643 (9th Cir. 2018) (“Because [plaintiff’s] conviction resulted from a plea agreement and 22 [plaintiff] alleged no facts in his complaint suggesting that the plea was not knowing and 23 voluntary, success in the § 1983 action would not affect his conviction” and, therefore, his 24 claims were not barred by Heck.) 25 Because it is unclear whether Plaintiff’s claims are barred by Heck, the Court will 26 lift the stay and require Defendant Mullen to answer the cell phone search claim in Count 27 One of the Second Amended Complaint. 28 . . . . 1 III. Warnings 2 A. Release 3 If Plaintiff is released while this case remains pending, and the filing fee has not 4 been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court 5 that he intends to pay the unpaid balance of his filing fee within 120 days of his release or 6 (2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may 7 result in dismissal of this action. 8 B. Address Changes 9 Plaintiff must file and serve a notice of a change of address in accordance with Rule 10 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 11 relief with a notice of change of address. Failure to comply may result in dismissal of this 12 action. 13 C. Copies 14 Plaintiff must serve Defendant, or counsel if an appearance has been entered, a copy 15 of every document that he files. Fed. R. Civ. P. 5(a). Each filing must include a certificate 16 stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, Plaintiff must 17 submit an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure to 18 comply may result in the filing being stricken without further notice to Plaintiff. 19 D.
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1 WO KM 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Emmet Darnell Wall, No. CV 19-02981-PHX-JAT (JFM) 10 Plaintiff, 11 v. ORDER 12 Jeri Williams, et al., 13 Defendants.
14 15 Because Plaintiff has pleaded guilty to the criminal charges against him in Maricopa 16 County Superior Court, case number CR 2018-002942, the Court will lift the stay in this 17 case and order Defendant Mullen to answer the Second Amended Complaint (Doc. 13), as 18 described below. 19 I. Background 20 On May 10, 2019, Plaintiff Emmet Darnell Wall, who is confined in a Maricopa 21 County Jail and proceeding in forma pauperis, filed a pro se civil rights Complaint pursuant 22 to 42 U.S.C. § 1983. In a July 25, 2019 Order, the Court dismissed the Complaint because 23 Plaintiff had failed to state a claim. On August 7, 2019, Plaintiff filed a First Amended 24 Complaint. In a November 1, 2019 Order, the Court ordered service on Defendant Mullen 25 and required Defendant Mullen to file a brief providing the Court with the status of any 26 relevant criminal cases against Plaintiff and discussing the applicability of a stay under 27 Gilbertson v. Albright, 381 F.3d 965 (9th Cir. 2004), and Wallace v. Kato, 549 U.S. 384 28 (2007). 1 On January 2, 2020, Plaintiff filed a Second Amended Complaint. In a February 2 14, 2020 Order, the Court informed Plaintiff that because the Second Amended Complaint 3 still raises claims to which Gilbertson and Wallace may apply, the Court would not screen 4 the Second Amended Complaint until it had received the required brief from Defendant. 5 On March 24, 2020, Plaintiff filed a “Declaration of Default,” seeking an entry of 6 default in this case. On April 30, 2020, the Court issued an Order to Show Cause requiring 7 Defendant to show cause why default should not be entered in this case. On May 29, 2020, 8 Defendant Mullen filed, through counsel, a Response to the Order to Show Cause, asserting 9 default should not be entered because he had not been properly served. In a June 12, 2020 10 Order, the Court denied the Declaration of Default and issued instructions for service of 11 Defendant Mullen. On September 4, 2020, Defendant Mullen filed the required Wallace 12 and Gilbertson brief. 13 In a September 8, 2020 Order, the Court screened the Second Amended Complaint; 14 determined Plaintiff adequately stated a Fourth Amendment claim in Count One against 15 Defendant Mullen regarding the allegedly warrantless search of Plaintiff’s cell phone; 16 dismissed the false arrest, racial profiling, and vehicle search claims in Count One; and 17 dismissed Count Two entirely. However, because Plaintiff’s criminal proceedings 18 stemming from the arrest at issue were still pending in the Maricopa County Superior 19 Court, the Court stayed this case until the criminal charges against Plaintiff were resolved. 20 On March 31, 2022, Plaintiff pleaded guilty to transportation of a narcotic for sale.1 21 II. Conclusion of Criminal Proceedings and Answer Required 22 As previously mentioned, the only remaining claim in Plaintiff’s Second 23 Amendment Complaint is Plaintiff’s assertion in Count One that Defendant Mullen 24 violated his Fourth Amendment rights on November 21, 2017, when he searched Plaintiff’s 25 cell phone without a warrant. Plaintiff claims he suffered an invasion of privacy, undue 26 stress, mental anguish, and “intrusion upon seclusion” as a result of the search. 27
28 1 See http://www.superiorcourt.maricopa.gov/docket/CriminalCourtCases/case Info.asp?caseNumber=CR2018-002942 (last visited Apr. 27, 2022). 1 Under Heck v. Humphrey, 512 U.S. 477 (1994), a prisoner’s claim for damages 2 cannot be brought under 42 U.S.C. § 1983 if “a judgment in favor of the plaintiff would 3 necessarily imply the invalidity of his conviction or sentence,” unless the prisoner 4 demonstrates that the conviction or sentence has previously been reversed, expunged, or 5 otherwise invalidated. Heck, 512 U.S. at 486-87. Thus, to the extent Plaintiff is asserting 6 that evidence collected during the alleged search and seizure caused his conviction, his 7 claim is barred by Heck. See Belanus v. Clark, 796 F.3d 1021, 1024 (9th Cir. 2015). 8 But if “the plaintiff’s action, even if successful, will not demonstrate the invalidity 9 of any outstanding criminal judgment against the plaintiff, the action should be allowed to 10 proceed, in the absence of some other bar to the suit.” Heck, 512 U.S. at 487 (footnotes 11 omitted). As the Supreme Court explained, 12 a suit for damages attributable to an allegedly unreasonable search may lie even if the challenged search produced evidence that was 13 introduced in a state criminal trial resulting in the § 1983 plaintiff’s still-outstanding conviction. Because of doctrines like independent 14 source and inevitable discovery, and especially harmless error, such a 15 § 1983 action, even if successful, would not necessarily imply that the plaintiff’s conviction was unlawful. In order to recover compensatory 16 damages, however, the § 1983 plaintiff must prove not only that the 17 search was unlawful, but that it caused him actual, compensable injury, which, we hold today, does not encompass the “injury” of 18 being convicted and imprisoned (until his conviction has been 19 overturned). 20 Id. at 487 n.7 (citations omitted). See also Byrd v. Phoenix Police Dep’t, 885 F.3d 639, 21 643 (9th Cir. 2018) (“Because [plaintiff’s] conviction resulted from a plea agreement and 22 [plaintiff] alleged no facts in his complaint suggesting that the plea was not knowing and 23 voluntary, success in the § 1983 action would not affect his conviction” and, therefore, his 24 claims were not barred by Heck.) 25 Because it is unclear whether Plaintiff’s claims are barred by Heck, the Court will 26 lift the stay and require Defendant Mullen to answer the cell phone search claim in Count 27 One of the Second Amended Complaint. 28 . . . . 1 III. Warnings 2 A. Release 3 If Plaintiff is released while this case remains pending, and the filing fee has not 4 been paid in full, Plaintiff must, within 30 days of his release, either (1) notify the Court 5 that he intends to pay the unpaid balance of his filing fee within 120 days of his release or 6 (2) file a non-prisoner application to proceed in forma pauperis. Failure to comply may 7 result in dismissal of this action. 8 B. Address Changes 9 Plaintiff must file and serve a notice of a change of address in accordance with Rule 10 83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other 11 relief with a notice of change of address. Failure to comply may result in dismissal of this 12 action. 13 C. Copies 14 Plaintiff must serve Defendant, or counsel if an appearance has been entered, a copy 15 of every document that he files. Fed. R. Civ. P. 5(a). Each filing must include a certificate 16 stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, Plaintiff must 17 submit an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure to 18 comply may result in the filing being stricken without further notice to Plaintiff. 19 D. Possible Dismissal 20 If Plaintiff fails to timely comply with every provision of this Order, including these 21 warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet, 22 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure 23 to comply with any order of the Court). 24 IT IS ORDERED: 25 (1) The stay in this case is lifted. 26 (2) Defendant Mullen must answer the cell phone search claim in Count One of 27 the Second Amended Complaint (Doc. 13) or otherwise respond by appropriate motion 28 within 60 days of the filing date of this Order. 1 (3) | This matter is referred to Magistrate Judge James F. Metcalf pursuant to 2| Rules 72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as 3 | authorized under 28 U.S.C. § 636(b)(1). 4 Dated this 4th day of May, 2022. 5 6 '
g = James A. C rg Senior United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28