                                                                           FILED
                    UNITED STATES COURT OF APPEALS
                                                                           OCT 02 2017
                           FOR THE NINTH CIRCUIT                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS




PAUL BLUMBERG,                                 No. 15-56216

             Plaintiff - Appellant,            D.C. No. 2:10-cv-05072-R-AJW

  v.
                                               ORDER
BRIAN HEWITT, BRAD FOSS,
CITY OF LOS ANGELES,
COUNTY OF LOS ANGELES,

             Defendants - Appellees.



Before:      McKEOWN and CALLAHAN, Circuit Judges, and QUIST,
             District Judge *

       The Petition for Rehearing is DENIED. No future petitions will be

entertained. An Amended Memorandum Disposition will be entered.




       *     The Honorable Gordon J. Quist, Senior District Judge for the United
States Court for the Western District of Michigan, sitting by designation.
                               NOT FOR PUBLICATION
                                                                                  FILED
                                                                                  OCT 02 2017
                        UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                              U.S. COURT OF APPEALS

                               FOR THE NINTH CIRCUIT

                                                     No. 15-56216
    PAUL BLUMBERG,
                                                     D.C. No. 2:10-cv-05072-R-AJW
                 Plaintiff - Appellant,

     v.                                              AMENDED MEMORANDUM*

    BRIAN HEWITT, BRAD FOSS,
    CITY OF LOS ANGELES,
    COUNTY OF LOS ANGELES,

                 Defendants - Appellees.



                       Appeal from the United States District Court
                          for the Central District of California,
                        Manuel L. Real, District Judge, Presiding

                           Argued and Submitted April 6, 2017
                                  Pasadena, California

Before:         McKEOWN and CALLAHAN, Circuit Judges, and QUIST,
                District Judge**

          Plaintiff, Paul Blumberg, appeals the district court’s order granting

Defendants’ motions to dismiss. Blumberg had been convicted in state court in a

*
      This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
      The Honorable Gordon J. Quist, Senior District Judge for the United States
Court for the Western District of Michigan, sitting by designation.
1998 trial at which the individual defendants in the instant case testified. After

exhausting state remedies, Blumberg’s conviction and sentence were overturned on

habeas review. Blumberg v. Garcia, 687 F. Supp. 2d 1074, 1141 (C.D. Cal. 2010).

Blumberg then filed a complaint under 42 U.S.C. § 1983, alleging that Defendants

violated his right to due process by testifying falsely and suppressing favorable

material evidence. While his § 1983 case was pending, Blumberg pled guilty to

the same attempted murder and, pursuant to a plea agreement, was sentenced to

time served. The district court dismissed the claims as barred by Heck v.

Humphrey, 512 U.S. 477 (1994). Blumberg v. Hewitt, No. CV 10-5072 GAF

(AJWx), 2012 WL 12882723 (C.D. Cal. July 26, 2012). We reversed and

remanded, directing the district court to consider the case in light of Jackson v.

Barnes, 749 F.3d 755 (9th Cir. 2014), and Rosales-Martinez v. Palmer, 753 F.3d

890 (9th Cir. 2014). Blumberg v. Hewitt, 599 F. App’x 715 (9th Cir. 2015).

Blumberg moved to amend his operative complaint, which had been filed before he

entered a guilty plea. The district court, without ruling on the motion to amend,

again dismissed the § 1983 claims as Heck-barred.

      The key language in Heck is:

      We hold 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,

                                           2
      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. A claim for damages
      bearing that relationship to a conviction or sentence that has not been
      so invalidated is not cognizable under § 1983. Thus, when 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 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.

512 U.S. at 486–87 (footnotes omitted).

      When Blumberg’s habeas petition was granted, his original conviction was

vacated. Garcia, 687 F. Supp. 2d at 1141. Therefore, Blumberg’s § 1983 claims

do not implicate the validity of that conviction, as it has already been “called into

question by a federal court’s issuance of a writ of habeas corpus.” Heck, 512 U.S.

at 487. Resolving whether Blumberg’s § 1983 claims are barred by Heck depends

on the interplay between those claims and his subsequent guilty plea. See Jackson,

749 F.3d at 759–60.

      The district court did not address whether Blumberg’s § 1983 claims

necessarily imply the invalidity of his subsequent guilty plea. Instead, the district

court simply stated that his claims “necessarily require demonstration of

[Blumberg’s] alleged innocence.” However, neither Brady v. Maryland, 373 U.S.


                                           3
83 (1963), nor Napue v. Illinois, 360 U.S. 264 (1959), requires actual innocence.

See Soto v. Ryan, 760 F.3d 947, 958 (9th Cir. 2014); Osborne v. Dist. Attorney’s

Office for the Third Judicial Dist., 521 F.3d 1118, 1134 (9th Cir. 2008), rev’d on

other grounds, 557 U.S. 52 (2009).

      The district court abused its discretion by dismissing these claims without

the opportunity to amend because, first, Blumberg’s § 1983 complaint was filed

before his guilty plea and, second, dismissal without leave to amend is generally

improper unless the complaint “could not be saved by amendment.” Eminence

Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003). Without

comparing a proposed amended complaint against Blumberg’s subsequent guilty

plea, we cannot determine whether amendment would be futile.1

      Although we denied on appeal Defendants’ motion for judicial notice of

certain documents, we make no comment on the appropriateness of those

documents to the district court’s decision on remand.

      REVERSED AND REMANDED.




1
      At oral argument, Blumberg conceded that he had no compensatory damages
recovery based on incarceration to the extent of the sentence validly imposed and
received after the 2012 guilty plea.
                                          4
