MARICA OVE; JOHN BROWN; JASON FORREST, ON BEHALF OF THEMSELVES AND ALL OTHERS SIMILARLY SITUATED, PLAINTIFFS-APPELLANTS, v. CASEY GWINN, INDIVIDUALLY AND AS CITY ATTORNEY OF SAN DIEGO; WILLIAM KOLENDER, INDIVIDUALLY AND AS SHERIFF OF SAN DIEGO COUNTY; SAN DIEGO COUNTY; CITY OF SAN DIEGO; AMERICAN FORENSIC NURSE, LLC; FAYE BATTISTE OTTO; PATTY KASTEN; HELEN SAMSON; THERESE SANSOUCIE; CHICAGO INSURANCE COMPANY, DEFENDANTS-APPELLEES.
No. 00-56233
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
Argued and Submitted April 4, 2001—Pasadena, California Filed September 4, 2001
264 F.3d 817 (9th Cir. 2001)
Before: Warren J. Ferguson and Barry G. Silverman, Circuit Judges, and Charles R. Breyer, District Judge.
Counsel Mary Frances Prevost, San Diego, California, for the plaintiff-appellant.
David L. Brodie, San Diego, California; Josephine M. Chow and Thomas C. Corless, Breidenbach, Buckley, Huchting, Halm & Hamblet, Los Angeles California; Melinda W. Ebelhar, Glendale, California; Deborah A. McCarthy, Senior Deputy, San Diego County Counsel, San Diego, California, for the defendants-appellees.
Appeal from the United States District Court for the Southern District of California Jeffrey T. Miller, District Judge, Presiding D.C. No. CV-00-00594-JTM
Before: Warren J. Ferguson and Barry G. Silverman, Circuit Judges, and Charles R. Breyer,* District Judge.
Silverman, Circuit Judge
Plaintiffs appeal the district court‘s
I. Background and Proceedings
Between late 1998 and early 1999, San Diego police arrested plaintiffs Ove and Forest, and San Diego County sheriff‘s department arrested plaintiff Brown, for suspicion of driving under the influence of alcohol. Ove, Forest, and Brown consented to blood tests. Plaintiffs’ blood samples were drawn by American Forensic Nurses (“AFN“) employees Samson, Kaston, and Sansoucie. San Diego City and County contracted with AFN to withdraw blood as directed by law enforcement from persons arrested on suspicion of driving under the influence.
After criminal charges were brought against plaintiffs, they filed motions to suppress their blood test results under
On March 23, 2000, Ove, Forest, and Brown filed a complaint in district court alleging violations of
On June 19, 2000, the district court granted defendants’
II. Jurisdiction and Standard of Review
We have jurisdiction under
A district court‘s refusal to exercise supplemental jurisdiction is reviewed for abuse of discretion. San Pedro Hotel Co. v. City of Los Angeles, 159 F.3d 470, 478 (9th Cir. 1998).
III. Analysis
A. 42 U.S.C. §§ 1983
Plaintiffs contend that the district court improperly held that Heck barred their
1. Heck v. Humphrey
In Heck, the Supreme Court held that:
in order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, . . . a
§§ 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court‘s issuance of a writ of habeas corpus,28 U.S.C. § 2254 .
512 U.S. at 486-87 (footnote omitted). Therefore, a “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.” Id. at 487. However, the Court pointed out that if a “plaintiff‘s 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. (footnotes omitted).
The Court offered an example of a lawsuit that would not be barred by the Heck doctrine:
For example, a suit for damages attributable to an allegedly unreasonable search may lie even if the challenged search produced evidence that was introduced in a state criminal trial resulting in the
§§ 1983 plaintiff‘s still-outstanding conviction. Because of doctrines like independent source and inevitable discovery, see Murray v. United States, 487 U.S. 533, 539 (1988), and especially harmless error, see Arizona v. Fulminante, 499 U.S. 279, 307-308 (1991), such a§§ 1983 action, even if successful, would not necessarily imply that the plaintiff‘s conviction was unlawful. In order to recover compensatory damages, however, the§§ 1983 plaintiff must prove not only that the search was unlawful, but that it caused him actual, compensable injury, see Memphis Community School Dist. v. Stachura, 477 U.S. 299, 308 (1986), which, we hold today, does not encompass the “injury” of being convicted and imprisoned (until his conviction has been overturned).
The Court visited this issue again in Edwards v. Balisok, 520 U.S. 641 (1997). In Edwards, an inmate brought a
Respondent‘s claim . . . assert[s] that the cause of the exclusion of the exculpatory evidence was the deceit and bias of the hearing officer himself. He contends that the hearing officer lied about the nonexistence of witness statements, and thus “intentionally denied” him the right to present the extant exculpatory evidence. A criminal defendant tried by a partial judge is entitled to have his conviction set aside, no matter how strong the evidence against him. The due process requirements for a prison disciplinary hearing are in many respects less demanding that those for criminal prosecution, but they are not so lax as to let stand the decision of a biased hearing officer who dishonestly suppresses evidence of innocence.
Id. at 647 (citations omitted).
In other words, if the plaintiff in Edwards proved the truth of the allegations of his complaint, there is no way that the revocation of the good-time credits could stand. The civil lawsuit, if successful, would necessarily imply the invalidity of the disciplinary hearing. Accordingly, the Court held that the complaint was barred by Heck.
Applying these principles to the case at hand, it is apparent that the plaintiffs’ lawsuit, even if successful, would not necessarily imply the invalidity of Ove and Forest‘s DUI convictions.3 Their lawsuit concerns the way in which their blood was drawn. But blood evidence was not introduced against them. No evidence was introduced against them. They pleaded guilty or nolo contendere, respectively.4 Their convictions derive from their pleas, not from verdicts obtained with supposedly illegal evidence. The validity of their convictions does not in any way depend upon the legality of the blood draws. Conspicuously missing from this case is any contention that Ove and Forest‘s pleas were illegal, involuntary or without factual bases.
The point is illustrated by our decision in Smithart v. Towery, 79 F.3d 951, 952 (9th Cir. 1996). In Smithart, the plaintiff had pleaded guilty in state court to assault with a deadly weapon. In his federal
Ove and Forest‘s
2. Constitutional Violation
Having dismissed the
“To state a claim under
In Schmerber v. California, 384 U.S. 757 (1966), the Supreme Court established the standards for determining if a blood test violated the Fourth Amendment. The Court analyzed “whether the means and procedures employed in taking his blood respected relevant Fourth Amendment standards of reasonableness.” Id. at 768. The Court emphasized the routine nature of blood tests and found the procedures reasonable:
[T]he record shows that the test was performed in a reasonable manner. Petitioner‘s blood was taken by a physician in a hospital environment according to accepted medical practices. We are thus not presented with the serious questions which would arise if a search involving use of a medical technique, even of the most rudimentary sort, were made by other than medical personnel or in other than a medical environment—for example, if it were administered by police in the privacy of the stationhouse. To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection and pain.
Id. at 771-72 (footnotes and citations omitted). Following Schmerber, we have held that the “procedures used to extract the sample must still be reasonable and in accordance with accepted medical practices.” United States v. Chapel, 55 F.3d 1416 (9th Cir. 1995).
To allege a constitutional violation, plaintiffs needed to assert that their blood tests were unreasonable and not taken in accordance with medical practices. However, plaintiffs’ complaint focuses solely on the violation of
As we can affirm the district court‘s dismissal for failure to state a claim on any basis supported in the Record, Romano, 169 F.3d at 1182, we hold that the district court properly dismissed plaintiffs’
B. RICO Claim
To state a civil RICO claim, plaintiffs must allege (1) conduct (2) of an enterprise (3) through a pattern (4) of racketeering activity (5) causing injury to plaintiffs’ “business or property.”
To demonstrate injury for RICO purposes, plaintiffs must show proof of concrete financial loss, and not mere injury to a valuable intangible property interest. Oscar v. University Students Coop. Ass‘n, 965 F.2d 783, 785 (9th Cir. 1992). Personal injuries are not compensable under RICO. Id. Plaintiffs assert that defendants devised and operated a scheme to increase fines and payments to defendants, and “to swindle the People of the State of California by depriving them of their right to the honest services of the City Attorney, Sheriff and San Diego Police Department.” However, plaintiffs fail to allege injury: They do not allege any financial loss to their business or property and the deprivation of “honest services” does not constitute concrete financial loss.
Plaintiffs also fail to satisfy the RICO causation element because they do not demonstrate that the conduct directly and proximately caused the alleged injury. See Resolution Trust Corp. v. Keating, 186 F.3d 1110, 1117 (9th Cir. 1999). Plaintiffs allege that the defendants engaged in a pattern of racketeering activity by committing mail and wire fraud and extortion. Plaintiffs assert that the extortion occurred when individuals, unlicensed under
Even if we were to assume that the plaintiffs would not have pleaded guilty without the blood test results, their complaint would still fail to establish the requisite causation because they do not allege that the use of individuals, unlicensed under
Therefore, the district court properly dismissed the RICO claim with prejudice for failure to allege any financial loss to business or property and for failure to allege a causal connection between an injury and illegal activity.
C. Supplemental Jurisdiction
Plaintiffs contend that the district court abused its discretion by declining to exercise supplemental jurisdiction over the remaining state law claims. We disagree. A court may decline to exercise supplemental jurisdiction over related state-law claims once it has “dismissed all claims over which it has original jurisdiction.”
AFFIRMED.
Ferguson, Circuit Judge, dissenting:
I agree that Heck does not bar Appellants’
According to the
In determining whether a complaint states a claim upon which relief can be granted, we construe the factual allegations set forth in the complaint as true and view them in the light most favorable to the plaintiffs. Lee v. City of Los Angeles, 250 F.3d 668, 679 (9th Cir. 2001). Appellants’ complaint sets out the following facts:
The County and City of San Diego contracted with an organization (AFN) to draw the blood of drivers suspected of driving under the influence. The individuals employed by AFN to take blood samples were not licensed or authorized to do. This is a requirement under
To state a claim under
Like Schmerber, this is a California drunk driving case. Schmerber, first of all, established the obvious fact that blood tests taken for chemical analysis in such cases plainly constitute searches of persons that are protected by the Fourth Amendment. Schmerber, 384 U.S. at 767. See also Ellis v. City of San Diego, 176 F.3d 1183, 1191-92 (9th Cir. 1999); Barlow v. Ground, 943 F.2d 1132, 1137 (9th Cir. 1991). The Schmerber Court explained that the “overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusions by the state.” Schmerber, 384 U.S. at 767. See also Skinner v. Railway Labor Executives’ Ass‘n, 489 U.S. 602, 616 (1989) (“In light of our society‘s concern for the security of one‘s person, . . . it is obvious that this physical intrusion, penetrating beneath the skin, infringes an expectation of privacy that society is prepared to recognize as reasonable. The ensuing chemical analysis of the sample to obtain physiological data is a further invasion of . . . privacy interests.“) (citations omitted).
Although the blood draw in Schmerber passed constitutional muster, the Court restricted its holding to the specific facts before it. Schmerber, 384 U.S. at 771, 772. As the majority notes, the Court stated that if a blood draw “were made by other than medical personnel or in other than a medical environment—for example, if it were administered by police in the privacy of the stationhouse,” then “serious questions . . . would arise” and a very different constitutional inquiry ensue. Id. at 772. “To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection and pain.” Id. Appellants here present a case in this unchartered area of constitutional law.
Searches and seizures “should be analyzed under the Fourth Amendment and its ‘reasonableness’ standard.” Graham v. Connor, 490 U.S. 386, 395 (1989). We have defined “reasonable” in the context of blood draws to mean that “the sample must be taken by trained medical personnel in accordance with accepted practices.” United States v. Chapel, 55 F.3d 1416, 1418 (9th Cir. 1995) (citation omitted). Appellants allege several times in their complaint that their blood was drawn by untrained personnel. It appears that the majority‘s sticking point is the “accepted practices” prong of the reasonableness inquiry. Surely, however, a municipal contract that violates the state law mandating blood test procedures raises a triable question as to the objective reasonableness of this practice.2-1
The California Legislature was presented with a problem. It determined that it was necessary for a sensible administration of the California Vehicle Code that persons other than medical doctors in a hospital be permitted to take blood samples for chemical analysis in drunk driving cases. The legislature with apparent wisdom determined it would be a lawyer‘s paradise if every blood test not taken by a physician in a hospital could be litigated as an unreasonable search and seizure. So
It is true that a state law violation does not always yield a constitutional violation. However, it is appropriate to look to state law to determine the reasonableness of a search for Fourth Amendment purposes. Reed v. Hoy, 909 F.2d 324, 330 n.5 (9th Cir. 1990) (citing Tennessee v. Garner, 471 U.S. 1, 15-16 (1985)). Cf. United States v. Rojas-Millan, 234 F.3d 464 (9th Cir. 2000) (violation of state law created reasonable basis for traffic stop); United States v. King, 244 F.3d 736 (9th Cir. 2001) (no reasonable suspicion where no violation of state law); United States v. Mota, 982 F.2d 1384, 1388 (9th Cir. 1993) (“in evaluating a custodial arrest executed by state officials, federal courts must determine the reasonableness of the arrest in reference to state law governing the arrest.“).
Indeed, Schmerber anticipated that the constitutionality of a blood draw would turn on a careful regulation of the practice: “That we today hold that the Constitution does not forbid the States minor intrusions into an individual‘s body under stringently limited circumstances in no way indicates that it permits more substantial intrusions, or intrusions under other conditions.” Id. at 772 (emphasis added). California has established those stringent limitations, and with them set out the scope of “accepted practices” for drawing blood.
In sum, the complaint clearly alleges a violation of the state law. This fact, combined with the alleged lack of appropriate training and misrepresentations to Appellants, convinces me that accepted practices were violated and that these blood draws were unreasonable.
Most puzzling is the fact that the holding of the majority is wholly gratuitous because the District Court dismissed Appellants’
All the majority has done, then, is point out to Appellants that they should add the password “unreasonable” to their complaint before re-filing. In doing so, perhaps Appellants will also bolster their claim by contending that
In a word, this is nitpicking at the expense of both the parties’ and the Court‘s time. I respectfully dissent.
Notes
California Vehicle Code §§ 23158 provides:
(a) Only a licensed physician and surgeon, registered nurse, licensed vocational nurse, duly licensed clinical laboratory technologist or clinical laboratory bioanalyst, unlicensed laboratory personnel regulated pursuant to Sections 1242, 1242.5, and 1246 of the Business and Professions Code, or certified paramedic acting at the request of a peace officer may withdraw blood for the purpose of determining the alcoholic content therein. This limitation does not apply to the taking of breath specimens. An emergency call for paramedic services takes precedence over a peace officer‘s request for a paramedic to withdraw blood for determining its alcoholic content. A certified paramedic shall not withdraw blood for this purpose unless authorized by his or her employer to do so.
(d) Notwithstanding any other provision of law, no licensed physician and surgeon, registered nurse, licensed vocational nurse, duly licensed clinical laboratory technologist or clinical laboratory bioanalyst, unlicensed laboratory personnel regulated pursuant to Sections 1242, 1242.5, and 1246 of the Business and Professions Code, or certified paramedic, or hospital, laboratory, or clinic employing or utilizing the services of the licensed physician and surgeon, registered nurse, licensed vocational nurse, duly licensed laboratory technologist or clinical laboratory bioanalyst, unlicensed laboratory personnel regulated pursuant to Sections 1242, 1242.5, and 1246 of the Business and Professions Code, or certified paramedic, owning or leasing the premises on which tests are performed, shall incur any civil or criminal liability as a result of the administering of a blood test in a reasonable manner in a hospital, medical laboratory, or medical clinic environment, according to accepted medical practices, without violence by the person administering the test, and when requested in writing by a peace officer to administer the test.