MEMORANDUM AND ORDER RE: DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON HECK GROUNDS AND PLAINTIFF'S MOTION FOR RULE 11 SANCTIONS

GARY FEESS, District Judge

I. INTRODUCTION

In this case, which allegedly arises out of the Los Angeles Police Department's ("LAPD's") Rampart Division, Plaintiff Martin Quintana alleges that he was falsely arrested on narcotics charges and framed by LAPD officers on January 12, 2000. As a result of his encounter with the police, Quintana's parole was revoked and he was returned to jail for 176 days. Quintana filed this § 1983 action in June 2000, shortly before he was released from jail. This case was consolidated with two other cases brought by Plaintiff against the LAPD: CV 00-7167 and 00-8174. However, this summary judgment motion is only concerned with the allegations in CV 00-7166.

Defendants have moved for summary judgment as to Quintana's § 1983 claims and sixth claim for injunctive relief. Defendants argue that Heck v. Humphrey, 512 U.S. 477 (1994) bars Plaintiff's § 1983 claims, and that Plaintiff does not have standing to assert a claim for injunctive relief. For the reasons that follow, Defendants' motion is GRANTED.

II. BACKGROUND

Plaintiff Martin Quintana was sentenced on June 21, 1996 for possession/purchase of cocaine for sale. (Defendants' Statement of Uncontroverted Facts and Conclusions of Law ("SUF") ¶ 1). He received four years in state prison and, after serving a portion of his four-year sentence, was released to a three-year parole period on August 9, 1998. (Id.). Plaintiff's Notice and Conditions of Parole, effective August 8, 1998, required that Plaintiff comply with all instructions of his parole agent. (SUF ¶ 2). As part of his parole conditions, Plaintiff consented to "search or seizure by a parole officer or other peace officer at any time of day or night, with or without a search warrant and with or without cause." (Id.). Plaintiff, when he signed his parole conditions, agreed "not to engage in conduct prohibited by law . . ." (Id.). He also agreed that "[c]onduct prohibited by law may result in parole revocation even though no criminal conviction occurs." (Id.).

On January 12, 2000, Plaintiff was arrested by Los Angeles Police Department officers Herbierto Arangure and Joshua Closson. (SUF ¶ 3). The details of that arrest are disputed by the parties. Defendants contend that the officers were monitoring the activities of a criminal street gang in the area near Lake and 11th. (Id.). As the officers began to deploy on several gang members who the officers believed were dealing narcotics, the officers heard someone whistle several times. The officers believed that the whistling compromised their location and safety as the gang members subsequently dispersed from their location. The officers identified the person who whistled as Quintana. (Id.). The officers began to question Quintana and learned that he was on parole and the name of his parole agent. The officers observed that Quintana appeared to be under the influence of a controlled substance: he was sweating profusely and had dilated pupils, burnt fingertips and lips. (SUF ¶ 4).

Plaintiff contends that he was at the apartment building at Lake and 11th Street in order to visit a girlfriend when officers Arangure and Closson were exiting the building. (Plaintiff's Statement of Controverted Facts ("SCF") ¶ 3). Plaintiff argues that the officers recognized him and handcuffed him before finding out that he was on parole, calling him an "asshole" for pressing charges against their fellow Rampart officers. (Id.). Plaintiff contends that he never whistled while he was in the area of Lake and 11th on January 12, 2000. (Id.). Plaintiff asserts that he was not under the influence of any drugs or alcohol, was not sweating, and did not have burnt fingertips and lips or dilated pupils. (Id. ¶ 4).

Defendants Arangure and Closson took Plaintiff to his parole officer. Defendants contend that the parole agent agreed with the arresting officers that Plaintiff had interfered with the officers' police duties and was under the influence of a controlled substance; Plaintiff disputes this fact and asserts that the parole officer fabricated evidence. (SUF ¶ 5, SCF ¶ 5). The agent instructed Plaintiff to take a urine sample, but Plaintiff refused. (SUF ¶ 5). The parole agent placed a parole hold on Plaintiff on January 12, 2000. (SUF ¶ 7).

Plaintiff had a hearing before the Board of Prison Terms on February 12, 2000. (SUF ¶ 8). Plaintiff was charged with: (1) changing residence without informing the Parole and Community Services Division ("PCSD"), (2) loitering in an area of drug related activity, (3) interfering with police duties, (4) possession of drug paraphernalia, and (5) failure to follow instructions from PCSD. (Davis Decl., Ex. 3 ("Charge Sheet")). The Board of Prison Terms found good cause for the charges of interfering with police duties, failing to follow instructions from the PCSD, and changing residences without informing the PCSD. (Davis Decl., Ex. 4 at 23 ("Summary of Revocation Hearing and Decision")). Plaintiff's parole was revoked for a period of ten months. (Id. at 25). Plaintiff was returned to jail and served until July 6, 2000, a total of 176 days. (SUF ¶ 11).

B. PROCEDURAL BACKGROUND

Plaintiff filed this action on June 30, 2000, about one week before he was released from confinement. The full procedural history of this case is detailed in this Court's May 13, 2002 Order re: Defendants' Motion to Dismiss. The operative complaint is the Second Amended Complaint filed on August 15, 2001. Following the Court's order on the most recent motion to dismiss, the remaining claims are as follows: (1) Count I (Fourth Amendment claims) against the police officer defendants, Arangure and Closson; (2) Counts I, III and IV (individual capacity and Monell § 1983 claims) against the City Council, City Attorney, Chief of Police, and Board of Police Commissioner Defendants, including a claim against the City Council and the City Attorney for their alleged improper role in indemnifying police officers for punitive damage awards; (3) Count II (§ 1983 conspiracy claims) against the City Council, City Attorney, Chief of Police, Board of Police Commissioner defendants and police officer defendants; and (4) Count VI (injunctive relief under § 1983 and 28 U.S.C. § 1651) against the policy maker Defendants.

III. ANALYSIS

Summary judgment is proper where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). Thus, when addressing a motion for summary judgment, this Court must decide whether there exist "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

The moving party has the burden of demonstrating the absence of a genuine issue of fact for trial. See id. at 256. The nonmoving party's evidence enjoys a presumption of veracity, and all inferences drawn from the evidence must be viewed in the light most favorable to the nonmoving party. See Eastman Kodak Co. v. Image Tech. Servs., Inc., 504 U.S. 451, 456 (1992);Anderson, 477 U.S. at 255. However, where there is no evidence demonstrating the existence of a genuine issue of material fact, the moving party may prevail simply by "pointing out to the district court . . . that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986).

B. PLAINTIFF'S § 1983 CLAIM IS BARRED UNDER HECK

Plaintiff has alleged that Defendants are liable under § 1983 for violating his Fourth and Fourteenth Amendments rights. Second Amended Complaint ("SAC") ¶ 23. Specifically, Plaintiff alleges that LAPD officers "illegally arrested plaintiff, planted evidence plaintiff had consumed narcotics, falsely claimed he was under the influence of a narcotic and had obstructed justice, and caused plaintiff to be incarcerated, first from January 12-23, 2000, and then for 10 additional months by plaintiff's parole agent, without plaintiff having been convicted of any crime." Id. ¶ 16. Defendants contend that the Supreme Court's holding in Heck v. Humphrey, 512 U.S. 477 (1994), requires Plaintiff to have his parole revocation reversed, expunged, invalidated, or impugned by the grant of a writ of habeas corpus, and that he can not collaterally attack his conviction by filing a § 1983 action.

In Heck, a plaintiff filed a § 1983 action seeking damages against the county prosecutors and police investigator alleging that they engaged in an unlawful and unreasonable investigation, that they knowingly destroyed exculpatory evidence, and caused an illegal voice identification procedure to be used at his trial.Heck, 512 at 479. The 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.

[T]he 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 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.

An example of . . . a § 1983 action . . . whose successful prosecution would necessarily imply that the plaintiff's criminal conviction was wrongful would be the following: A state defendant is convicted of and sentenced for the crime of resisting arrest, defined as intentionally preventing a peace officer from effecting a lawful arrest . . . He then brings a § 1983 action against the arresting officer, seeking damages for violation of his Fourth Amendment right to be free from unreasonable seizures. In order to prevail in this § 1983 action, he would have to negate an element of the offense of which he has been convicted. Regardless of the state law concerning res judicata, the § 1983 action will not lie.

Plaintiff argues that Defendants are barred from asserting theHeck doctrine as a defense because Defendants did not plead theHeck doctrine as a defense in their Answer to the operative complaint. Opp'n at 16. Generally, an affirmative defense not asserted in a responsive pleading is waived. State of Ariz. v. State of CA, 530 U.S. 392, 410 (2000). Plaintiff contends that an argument based on Heck v. Humphrey is an affirmative defense subject to Fed.R.Civ.P. Rule 8(c). Opp'n at 16. Defendants assert that Heck is a procedural bar, not an affirmative defense, and therefore need not be raised in the answer. Reply at 7.

Rule 8(c) explicitly lists affirmative defenses which must be set forth in the answer, including statute of limitations, waiver, estoppel, and res judicata. Rule 8(c) also contains a residual clause which states that "any other matter constituting an avoidance or affirmative defense" must be set forth in the answer. "An affirmative defense is defined as '[a] defendant's assertion raising new facts and arguments that, if true, will defeat the plaintiff's or prosecution's claim, even if all the allegations in the complaint are true.'" Saks v. Franklin Covey Co., 316 F.3d 337, 350 (2d Cir. 2003), quoting Black's Law Dictionary 430 (7th ed. 1999). Courts interpreting the residual clause of Rule 8(c) have identified additional affirmative defenses which must be raised in the answer, including qualified immunity, exhaustion of administrative remedies, and ERISA preemption. See Camarillo v. McCarthy, 998 F.2d 638, 639 (9th Cir. 1993) (finding that qualified immunity is an affirmative defense that should be pled in the answer); Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003) (plaintiff's failure to exhaust administrative remedies is an affirmative defense, not a pleading requirement, under the Prison Litigation Reform Act); Saks, 316 F.3d at 350 ("[W]e hold that ERISA preemption of state contract claims in a benefits-due action is an affirmative defense that is untimely, and therefore subject to waiver, if not pleaded in the defendant's answer.").

Defenses which demonstrate that the plaintiff has failed to meet his burden of proof are denials and not affirmative defenses, and therefore need not be pled in the answer. Zivkovic v. So. Cal. Edison, 302 F.3d 1080, 1088 (9th Cir. 2002) (finding that because an employee bears the burden to show that there is a specific reasonable accommodation which the employer failed to provide, a defendant employer who attempts to prove reasonable accommodation by employer merely negates an element that plaintiff must prove, and therefore employer need not assert reasonable accommodation as an affirmative defense).

Lastly, a defense pertaining to the court's jurisdiction need not be raised in the answer, but can be raised by motion. Fed.R.Civ.Pro. 12(b). Such a defense is not waived by a defendant's failure to raise the defense in the answer, and the court can dismiss the action whenever it appears that the court lacks subject matter jurisdiction. Fed.R.Civ.Pro. 12(h)(3); cf., Int'l Longshoreman's Assoc. v. Davis, 476 U.S. 380, 390 (1986) (preemption issues that dictate the choice of forum are jurisdictional and therefore may not be waived).

The Court finds that the Heck doctrine is not an affirmative defense that must be pled in the answer. As Plaintiff acknowledges, the Heck doctrine is not a statute of limitations defense, but rather is an accrual bar. See Plaintiff's Rule 11 Motion at 4. As a rule of accrual, the Heck doctrine more closely resembles a jurisdictional barrier, because if the claim has not accrued, then the court would not have subject matter jurisdiction over the claim. See Heck, 512 U.S. at 489 ("We do not engraft an exhaustion requirement upon § 1983, but rather deny the existence of a cause of action.") (emphasis added).

Even if Defendants' Heck argument is an affirmative defense that should have been pled in the answer, most courts, including the Ninth Circuit, allow affirmative defenses to be raised for the first time on a motion for summary judgment, provided that the opposing party will not suffer prejudice or unfair surprise. 8 SCHWARZER, ET AL., FEDERAL CIVIL PROCEDURE BEFORE TRIAL § 229.7 (2003); Owens v. Kaiser Foundation Health Plan, Inc., 244 F.3d 708, 713 (9th Cir. 2001) (observing that the Ninth Circuit has liberalized the requirement that defendants raise affirmative defenses in their initial pleadings so long as there is no prejudice to the plaintiff); Han v. Mobil Oil Corp., 73 F.3d 872 (9th Cir. 1995) (holding that "an affirmative defense . . . may be raised for the first time on a motion for summary judgment when there is no prejudice to the plaintiff."); Camarillo v. McCarthy, 998 F.2d 638, 639 (9th Cir. 1993); see also Saks v. Franklin Covey Co., 316 F.3d 337, 350 (2d Cir. 2003), citing Blonder-Tongue Labs., Inc. v. Univ. of Ill. Found., 402 U.S. 313, 350 (1971) ("One of the core purposes of Rule 8(c) is to place the opposing parties on notice that a particular defense will be pursued so as to prevent surprise or unfair prejudice.")

The Heck issue is not new to this case. In January 2002, Defendants raised the Heck argument in their motion to dismiss this lawsuit. This Court held that while there was not enough evidence for the Court to decide the issue on the basis of the complaint, the Defendants could "renew this argument on a motion for summary judgment if discovery reveals additional information about Quintana's incarceration." May 10, 2002 Order re: Defendants' Motions to Dismiss at 6. Because the Heck issue was first raised over a year ago, Plaintiff cannot claim unfair surprise or prejudice by Defendants' renewal of the argument in the present motion. See Cedars-Sinai Med. Ctr v. Shalala, 177 F.3d 1126, (9th Cir. 1999) (finding that there was no prejudice to the plaintiff even though the affirmative defense of statute of limitations was not raised until the defendant's reply to the plaintiff's motion to dismiss because the plaintiff was able to file a sur-reply) and Ledo Fin. Corp. v. Summers, 122 F.3d 825, (9th Cir. 1997) (finding no prejudice because despite the defendant's five month delay in asserting the defense, the plaintiff "points to no tangible way in which it was prejudiced by the delay."); see Kelly v. City of Oakland, 198 F.3d 799 (9th Cir. 1999) (holding that the city could not raise a Monell defense for the first time in a reply brief on a motion for a new trial because this was the last brief filed in the action, and such a defense could have affected the course of the trial.)

2. The Heck doctrine applies to parole revocations

In this case, Defendants seek to apply the Heck principle not to a criminal conviction but to a decision revoking Plaintiff's parole. The question thus becomes whether, under Heck, a decision by the Board of Prison Terms ("BPT") Hearing Panel to revoke the parolee's parole must first be reversed, expunged, 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, before a plaintiff can bring a § 1983 action.

In Edwards v. Balisok, 520 U.S. 641 (1997), the Supreme Court "held that the Heck rule applied to a state prisoner who was seeking damages for unconstitutional deprivation of good-time credits, so long as the alleged constitutional violation would, if established, imply the invalidity of the deprivation of good-time credits." Nonnette v. Small, 316 F.3d 872, (9th Cir. 2002), citing Balisok, 520 U.S. at 648 (emphasis added).

There is no analytical difference between a prison disciplinary hearing which deprives a prisoner of good time credits and a parole revocation hearing which deprives a prisoner of his parole time. Therefore, Balisok suggests that a § 1983 action which implies the invalidity of a parole revocation must satisfy theHeck accrual requirement by having his parole revocation expunged or reversed by a habeas petition. Butterfield v. Bail, 120 F.3d 1023 (9th Cir. 1996) (holding that because plaintiff's § 1983 claim "necessarily implicates the validity of the denial of parole, and therefore, the prisoner's continuing confinement," his "claim for damages amounts to a collateral attack on his denial of parole and subsequent incarceration. Heck does not permit this."); see also Jackson v. Vannoy, 49 F.3d 175, 177 (5th Cir. 1995) ("In addition to convictions and sentences, Heck applies to proceedings which call into question the fact or duration of parole."); McGrew v. Texas Bd. of Pardons Paroles, 47 F.3d 158, 161 (5th Cir. 1995) (same);Littles v. Bd. of Pardons Paroles, 68 F.3d 122, 123 (5th Cir. 1995) (same). This is true even though the Plaintiff "seeks money damages rather than parole as a remedy" because "in substance his damages may only be measured by that confinement." Butterfield, 120 F.3d at 1025.

Since the Heck doctrine applies to this case, Plaintiff must show either: (1) that the parole board's decision was reversed, expunged, set aside or called into question; or (2) that his success in this action would not imply the invalidity of his parole revocation. Since Plaintiff has not appealed the revocation, and has not sought a writ of habeas corpus, SUF ¶ 10, and since the revocation has not otherwise been overturned, Plaintiff cannot pursue the present claims unless they do not imply the invalidity of the parole revocation determination. The Court therefore turns to that issue.

3. Plaintiff's success in this action would imply the invalidity of his parole revocation

The Court must consider whether Quintana's success in this § 1983 suit would imply the invalidity of his confinement resulting from his parole revocation hearing. Plaintiff alleges that his rights were violated when the officers illegally arrested him, falsely claimed that he obstructed justice, and caused him to be incarcerated by his parole officer. SAC ¶ 16. To prevail on a false arrest claim, a plaintiff must demonstrate that the defendants lacked probable cause to arrest him. Caballero v. City of Concord, 956 F.2d 204, 206 (9th Cir. 1992). When the facts supporting the officers' probable cause determination are the same as the facts supporting the plaintiff's conviction, a finding that the officers lacked probable cause would "necessarily imply the invalidity" of the plaintiff's conviction.Heck, 512 U.S. at 487.

For example, in Smithart v. Towery, 79 F.3d 951 (9th Cir. 1996), the plaintiff was convicted of assault with a deadly weapon for driving his truck at a sheriff and highway patrol officer. Smithart, 19 F.3d at 952. In his § 1983 action, Smithart alleged that he was falsely arrested and prosecuted on this charge. Id. The Ninth Circuit concluded that Smithart's false arrest and malicious prosecution claims could not proceed.Id. at 952-53. The court held that a judgment in Smithart's favor on these claims would necessarily imply the invalidity of his conviction since the facts and evidence supporting both the conviction and the arrest were the same. Id. at 952. Smithart's conviction for assault with a deadly weapon was necessarily based on the jury's finding that he had intentionally driven his vehicle at the defendant officers to harm them. Id.

In this case, Officers Arangure and Closson have confirmed Plaintiff's allegation that they arrested Quintana, in part, based on their belief that as they were monitoring the activities of the 18th Street gang, Quintana whistled at several gang members who were dealing narcotics in order to compromise the officers' safety and location. Arangure Decl., ¶ 2; Closson Decl., ¶ 2. The evidence presented to the Board of Prison Terms regarding the charge of interfering with police duties included these statements by the police officers that Quintana whistled while the officers were watching other gang members, drawing attention to the officers. Davis Decl., Ex. 3 at 15 ("Charge Sheet"). As evidenced by the BPT's Summary of Revocation Hearing and Decision, the basis for the panel's decision on this charge was the testimony of Officer Closson, who "testified [that] he was conducting surveillance of known drug dealers 18th St. gang, that he observed parolee, saw him . . started [sic] to whistle[,] which is used to alarm/notify persons of police and drug dealers [and then he] ran away. ." David Decl., Ex. 4 at 24 ("Summary of Revocation Hearing and Decision"). The BPT also heard testimony by the parolee that the police officers were lying and he was being targeted in retaliation for his prior complaint against the LAPD, but the Board nonetheless found good cause for the charge of interfering with police duties. SUF ¶ 9; Davis Decl, Ex. 4 at 23-24 ("Summary of Revocation Hearing and Decision").

The evidence presented to the BPT — the officers' testimony that Quintana interfered with their surveillance by whistling and Quintana's testimony that the officers were lying in order to frame him — is the same evidence that would be presented in this case with respect to Quintana's claim that he was falsely arrested and framed. If this court were to find that the police acted illegally (i.e., in violation of Plaintiff's Fourth and Fourteenth amendment rights) by arresting Quintana on the basis that he was obstructing justice, that would necessarily call into question the finding by the Board of Prison terms that Plaintiff was in fact interfering with the officers' efforts to discharge their duties. Accordingly, since the revocation has not been overturned, and since the revocation cannot be challenged without necessarily implying the invalidity of the result, Heck teaches that the cause of action alleged in the operative complaint has not yet accrued.

4. Heck bars Plaintiff's § 1983 action even though Plaintiff can no longer seek habeas relief

While the Heck doctrine requires that Quintana's parole revocation be overturned, expunged or invalidated before Quintana can bring a § 1983 claim, Quintana probably cannot challenge his parole revocation by way of a writ of habeas corpus because he is no longer in custody. In general, a petitioner cannot seek habeas relief unless he is in custody, or can show that other adverse legal collateral consequences that give rise to an injury-in-fact sufficient to satisfy the case-or-controversy requirement of Article III, § 2. Spencer v. Kemna, 523 U.S. 1, 7 (1998). Unlike a conviction, a parole revocation is not entitled to a presumption of adverse collateral consequences. Id. at 12-14 (refusing to extend the presumption of a significant collateral consequence from a conviction to a parole revocation, because a parole revocation does not entail the same adverse collateral legal consequences of a conviction, and requiring a specific showing of a concrete injury-in-fact attributable to a parole revocation where the plaintiff is no longer in custody.)

Plaintiff invokes Nonnette v. Small, 316 F.3d 872, 876-66 (9th Cir. 2002) for the proposition that because habeas relief is no longer available for him to challenge his parole revocation, his claim can never accrue for purposes of the Heck doctrine, and therefore the Heck doctrine should not be applied to bar his claim. Opp'n at 19.

In Nonnette, the court held that Heck does not preclude a plaintiff's § 1983 action that impugns a parole revocation where the plaintiff has been released from prison and would be procedurally barred from pursuing his claims through a writ of habeas corpus. Nonnette, 316 F.3d at 876-77 (finding that even though plaintiff's § 1983 claim against prison officials for revoking his good time credits in a disciplinary proceeding challenged the decision underlying the plaintiff's confinement, and therefore a writ of habeas corpus was the appropriate vehicle for relief, the plaintiff should not be barred from bringing his claim since he was released from prison and a habeas petition would be moot).

However, in Guerrero v. Gates, 357 F.3d 911 (9th Cir. 2004), the court observed that the fact that Guerrero was no longer in custody and therefore could not overturn his convictions by means of habeas corpus did not impact the Heck bar to his action.Id. at 917. The court noted that the "arguable exceptions toHeck's bar for plaintiffs no longer in custody suggested by dissenting members of the Supreme Court in Spencer v. Kemna and embodied in our recent decision of Nonnette v. Small . . . are limited . . ." Id. at 917. For example, in Cunningham v. Gates, 312 F.3d 1148 (9th Cir. 2002), the court held that a plaintiff's § 1983 claim was still barred by Heck even if his habeas relief was time-barred where the plaintiff was responsible for his failure to timely pursue habeas remedies. Id. TheGuerrero court observed that "Nonnette was founded on the unfairness of barring a plaintiff's potentially legitimate constitutional claims where the individual immediately pursued relief after the incident giving rise to those claims and was prevented from seeking habeas relief due only to the shortness of his prison sentence." Id. at 917. The court emphasized that "Nonnette immediately sought administrative relief, and when that failed, he promptly sought relief from this court." Id. at 918. In that regard, Nonnette was like the plaintiff in Spencer who also "diligently sought relief for his claim of invalid revocation of parole." Id. The court concluded that "we do not extend this reasoning to individuals like Guerrero who have failed, of their own accord, to diligently seek the appropriate overturning of their prior convictions." Id.

The Guerrero case indicates that the important difference between cases like Cunningham and Guerrero, on the one hand, and a case like Nonnette, on the other hand — all of which involved a § 1983 plaintiff who was procedurally barred from seeking habeas relief — is the diligence of the plaintiff in pursuing the proper remedy when he did have the opportunity. Like the plaintiffs in Cunningham and Guerrero, Quintana lost his opportunity to challenge his confinement due to his own failure to pursue the proper remedy. Plaintiff concedes that he did not seek a writ of habeas corpus on his parole revocation while he was in custody and had standing. SUF ¶ 10. Therefore "[t]hough habeas relief for [the plaintiff] may be 'impossible as a matter of law,' as in Cunningham, we decline to extend this relaxation of Heck's requirements to the claims of a plaintiff whose failure to timely achieve habeas relief is self-imposed."Guerrero, 357 F.3d at 918, citing Cunningham, 312 F.3d at 1153 n. 3.

In sum, the Court holds that (1) Heck applies to parole revocation proceedings and (2) Plaintiff's claim necessarily implies the invalidity of his parole revocation, and his parole revocation has not been expunged or overturned. Therefore, theHeck doctrine bars Quintana's § 1983 claims. Plaintiff is not excused from this Heck bar even though habeas relief is no longer available to him because Plaintiff's own failure to pursue the proper remedies when they were available to him resulted in this loss of his habeas remedy.

C. PLAINTIFF DOES NOT HAVE STANDING TO CLAIM INJUNCTIVE RELIEF

Plaintiff has alleged that he is entitled to injunctive relief because "there are continuing and present adverse affects and effects of the LAPD activities, and they cause future threatened injuries to be real and immediate" and these activities threaten Plaintiff personally because he is likely to "be set up again by LAPD, Rampart, and/or CRASH officers." SAC ¶¶ 49-50. Defendants contend that Quintana lacks standing for injunctive relief because he cannot make a showing that he is likely to suffer from future injury. Mot. at 12.

To meet the constitutional requirement of standing, a plaintiff must establish three elements: "First, the plaintiff must have suffered an injury in fact — an invasion of a legally protected interest which is (a) concrete and particularized; and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of. . . . Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision." Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130 (1992) (citations and internal quotation marks omitted). Plaintiffs seeking injunctive relief must establish a fourth element to have standing, namely a "real and immediate threat of repeated injury" demonstrated by more than "past exposure to illegal conduct."City of Los Angeles v. Lyons, 461 U.S. 95, 102, 103 S. Ct. 1660 (1983) (quoting O'Shea v. Littleton, 414 U.S. 488, 495-96, 94 S. Ct. 669 (1974)). "In other words, plaintiffs asserting an injunction claim must allege the probability of a future encounter with the defendant which is likely to lead to a similar violation of some protected right." Roe v. City of New York, 151 F. Supp. 2d 495, 502 (S.D.N.Y. 2001); Armstrong v. Davis, 275 F.3d 849, 860-61 (9th Cir. 2001) ("[W]here . . . a plaintiff seeks prospective injunctive relief, he must demonstrate that he is realistically threatened by a repetition of the violation."). As the Ninth Circuit has observed, "[t]he Supreme Court has repeatedly cautioned that, absent a threat of immediate and irreparable harm, the federal courts should not enjoin a state to conduct its business in a particular way." Hodgers-Durgin v. De la Vina, 199 F.3d 1037, 1042 (9th Cir. 1999) (en banc).

Plaintiff does not contest Defendants' standing arguments. Further, the Court finds that Plaintiff cannot show a likelihood of future injury. As Defendants acknowledge, Quintana filed two other lawsuits against the LAPD, et al., which have been consolidated with this action. Mot. at 13 n. 8. One of those cases, CV 00-8174, involves an incident that occurred after the incident date in this action. Id. In that case, Plaintiff alleges that on July 17, 2000, about a week and half after he was release following his parole revocation, LAPD CRASH officers again illegally arrested him and caused him to have his parole revoked. Compl. ¶ 16. Nonetheless, Defendants contend that "the allegations in this lawsuit are insufficient and too speculative to demonstrate the likelihood of future harm to Quintana." Id.

The Court agrees. Although being stopped by the LAPD and having his parole revoked twice due to the allegedly illegal arrests indicates that Plaintiff has suffered greater injury in the past, it still does not suffice to demonstrate that Quintana is likely to suffer a substantial and immediate irreparable injury in the future. See Hodgers-Durgin v. De La Vina, 199 F.3d 1037, 1042 (9th Cir. 1999) (en banc) (concluding that because each of the plaintiffs had been stopped only once in ten years they could not demonstrate "any real or immediate threat that [they] will be wronged again — a likelihood of substantial and immediate irreparable injury.") (internal quotations omitted). Past illegal conduct alone is insufficient to satisfy the case or controversy requirement for injunctive relief, and therefore Quintana does not have standing for injunctive relief against false arrest, planting of evidence, and malicious prosecution. See O'Shea, 414 U.S. at 495-96. This is especially true in light of the fact that there is a consent decree between the federal government and the city enjoining such behaviors, a new police chief, and the CRASH unit has been disbanded, so that Plaintiff cannot show a likelihood of similar harm in the future.

D. PLAINTIFF'S RULE 56(F) REQUEST TO CONTINUE THE HEARING IS DENIED

Along with their opposition brief, Plaintiff filed a Rule 56(f) submission in response to Defendants' summary judgment motion. Plaintiff asked the Court to continue the hearing on the summary judgment for three weeks in order to obtain a signed declaration from Quintana. Plaintiff's counsel contended that Plaintiff's declaration will controvert statements by the police and parole officers.

Rule 56(f) provides that the court may continue a summary judgment motion in order to permit affidavits to be obtained or other discovery to be had if it appears from the affidavits of the party opposing the summary judgment motion that the opposing party cannot present facts essential to justify the party's opposition. Fed.R.Civ.P. 56(f).

The major factual dispute between the parties focuses on what happened on January 12, 2000 when Quintana encountered the police and when they took him to his parole officer. The parties give very different descriptions of what transpired during that encounter. However, those disputed facts are not relevant to either of the issues presented in this motion. The only fact necessary to decide the Heck issue is whether Quintana challenged his parole revocation by means of a writ of habeas corpus, and that fact is undisputed and would not be controverted by Quintana's proposed declaration. See SUF ¶ 10. As for the standing issue, the relevant facts are whether Quintana will be harmed in the future, i.e. whether the practices of which he complains are capable of repetition as to him. Sample v. Johnson, 771 F.2d 1335, 1342 (9th Cir. 1995). Again, the disputed details of what happened in the exchange between Quintana and the police on January 12, 2000 do not need to be resolved in order for this Court to determine whether plaintiff has alleged a likelihood of future harm to himself. While the Court acknowledges that there is a factual dispute between the parties, the dispute is not relevant to the issues in the present motion for summary judgment. Therefore, Plaintiff is not entitled to a three week continuance under Rule 56(f), and that request is DENIED. E. PLAINTIFF'S MOTION FOR SANCTIONS IS DENIED

Plaintiff requests Rule 11 sanctions on the grounds that Defendants' arguments regarding Heck v. Humphrey are "not supported by any controlling or other authority." Mot. at 2. Sanctions may be imposed for violation of the certification that "the claims, defenses, and other legal contentions therein are warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law." Fed.R.Civ.P. 11(b)(2). Rule 11 is violated where the claim is not warranted by existing law. Id. Such a violation is shown if no "plausible, good faith argument can be made by a competent attorney to the contrary." Zaldivar v. City of Los Angeles, 780 F.2d 823, 829 (9th Cir. 1986).

Plaintiff's request for sanctions is without merit. As evidenced by this order, not only were Defendants' Heck doctrine arguments plausible, but, in this Court's view, they were correct as a matter of law and supported by case authority in the Ninth Circuit. The request for sanctions is DENIED.

IV. CONCLUSION

IT IS SO ORDERED.