1 2 3 4 5 IN THE UNITED STATES DISTRICT COURT 6 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 MICHAEL RAY FRANCE, No. C 19-3934 WHA (PR) 10 Plaintiff, ORDER GRANTING MOTIONS FOR SUMMARY JUDGMENT; DENYING 11 v. MOTION FOR RECONSIDERATION 12 ROSS LUNCEFORD; CHRIS DEWEY; DAVID EYSTER; CITY OF (Dkt. 24, 26, 28) 13 UKIAH, 14 Defendants. / 15 16 INTRODUCTION 17 Plaintiff, a California state prisoner, filed this pro se civil rights case under

1983 alleging that defendants violated his constitutional rights during his state court criminal 19 proceedings and in police reports. Defendants City of Ukiah and Ross Lunceford, a Ukiah police 20 officer, filed a motion for summary judgment, and defendant David Eyster, the Mendocino 21 County District Attorney, filed a separate motion for summary judgment. Plaintiff did not file an 22 opposition to the motions despite receiving two extensions of time to do so and a warning of the 23 potential consequences if he did not. For the reasons explained below, the motions for summary 24 judgment are GRANTED. Plaintiff’s motion for reconsideration is DENIED. 25 ANALYSIS 26 A. STANDARD OF REVIEW 27 Summary judgment is proper where the pleadings, discovery and affidavits show that 28 there is "no genuine issue as to any material fact and that the moving party is entitled to 1 judgment as a matter of law." Fed. R. Civ. P. 56. Material facts are those which may affect the 2 outcome of the case. A dispute as to a material fact is genuine if there is sufficient evidence for a 3 reasonable jury to return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 4

(1986). The moving party for summary judgment bears the initial burden of 5 identifying those portions of the pleadings, discovery and affidavits which demonstrate the 6 absence of a genuine issue of material fact. When the moving party has met this burden of 7 production, the nonmoving party must go beyond the pleadings and, by its own affidavits or 8 discovery, set forth specific facts showing that there is a genuine issue for trial. If the 9 nonmoving party fails to produce enough evidence to show a genuine issue of material fact, the 10 moving party wins. Celotex Corp.v. Cattrett,

(1986). 11 At summary judgment, the judge must view the evidence in the light most favorable to 12 the nonmoving party: if evidence produced by the moving party conflicts with evidence 13 produced by the nonmoving party, the judge must assume the truth of the evidence set forth by 14 the nonmoving party with respect to that fact. Tolan v. Cotton,

(2014). 15 B. DISCUSSION 16 Defendants participated in the investigation, arrest, and prosecution of plaintiff for being 17 a felon in possession of a gun in 2018. Plaintiff filed a motion to suppress the gun based upon an 18 illegal search, which the state court denied. Plaintiff subsequently pleaded guilty and received a 19 sentence to state prison. He claims that defendant Lunceford, the arresting officer, lied in his 20 testimony at the suppression hearing and in his police report. Lunceford’s alleged lie was that he 21 believed that a probationer named Jarod Kidd was at the house where plaintiff was staying, and 22 that Lunceford could, therefore, search the house without a warrant. When Lunceford searched 23 the house, he found plaintiff’s gun. Plaintiff alleges that Lunceford and the prosecutor, 24 defendant Eyster, knew that Mr. Kidd was in fact incarcerated at that time. 25 Defendants have shown that plaintiff made the same claims that he makes here in his 26 prior lawsuit, France v. City of Ukiah, et al., No. C 19-5969 WHA (PR). There, plaintiff alleged 27 the same facts, and he claimed that defendants committed an illegal search, false arrest, and 28 1 malicious prosecution. Those claims were dismissed under Heck v. Humphrey,

, 2 486-487 (1994), because if they were proven true, they would necessarily undermine the validity 3 of his conviction. Plaintiff argues that he makes different claims here than he did in his prior 4 suit. Specifically, he asserts that in the instant suit he claims only that Lunceford (with Eyster’s 5 help) committed perjury at the suppression hearing and falsified the police report — by lying 6 that he thought Mr. Kidd was at the house where plaintiff was staying. These are not distinct 7 claims from those raised in his prior suit. In his prior suit, plaintiff alleged the same lie by 8 Lunceford, and he needed to prove it in order to show that the search, arrest and prosecution 9 were unconstitutional. Here, if he were to prove the same lie in order to show Lunceford 10 perjured himself and falsified the police report, then the search, arrest and prosecution would 11 similarly be unlawful. The perjury and falsified report claims are not independent or distinct 12 claims from the illegal search and arrest claims in plaintiff’s prior suit, but rather are part and 13 parcel of such claims. In addition, the perjury and falsified report claims are, like the illegal 14 search, arrest and prosecution claims, barred by Heck because proof that of the lie would 15 “necessarily” mean that the search was illegal, admission of the gun evidence was error, and 16 plaintiff’s conviction for possession of the gun was not valid. 17 Plaintiff’s claims were dismissed under Heck without prejudice to bringing them in a new 18 civil rights action if his conviction for possession of a gun as a felon was reversed, dismissed, 19 expunged, or otherwise invalidated. See

. Until such time, he may not pursue his 20 claims in a federal civil rights action. Defendants are entitled to summary judgment. 21 Plaintiff has filed a motion for reconsideration of the Order denying his requests for 22 discovery and a third extension of time to oppose summary judgment. Defendants’ summary 23 judgment arguments were purely legal and did not require discovery to oppose them, nor could 24 such arguments be refuted with additional time or discovery would uncover. Also, plaintiff 25 received two extensions of time and four months to file an opposition. He has not shown why he 26 needed more. His complaints about restrictions at his prison due to the COVID-19 pandemic are 27 irrelevant to the briefing on the instant motions because such restrictions came after he already 28 1 had four months — from October 2019 to February 2020 — to file his opposition Plaintiff does 2 not explain his failure or inability to prepare an opposition in that time. There are no grounds for 3 reconsideration. 4 CONCLUSION 5 For the reasons set out above, defendants’ motions for summary judgment is GRANTED. 6 The motion for reconsideration is DENIED. 7 The clerk shall enter judgment and close the file. 8 IT IS SO ORDERED. 9 Dated: June 2 9 , 2020. 10 WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28