F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

P E D R O R O S A L E S -M A

R T I N E Z , Plaintiff-Appellant

,

v

.

C O L B Y P A L M E R , individually and as a police officer for Reno Police Department; H E I D I P O E , individually and as an officer for W a shoe County Parole and Probation Department; K. M. L O R E N Z O , individually and as an officer for W ashoe County Parole and Probation Department; J E N N I F E R R E I C H E L T , individually

and as officer for Parole and Probation Headquarters General Service Unit Records; W A S H O E C O U N T Y , N E V A D A ; C I T Y O F R E

N O ; G A U D A L U P E C O R

T E Z ; and S T A T E O F N E V A D A , Defendants-Appellees

. N o. 12-15077

D.C. No. 3:10-cv-748- ECR-VPC

OPI NI ON

A ppeal from the United States District Court for the District of Nevada Edward C. Reed, J unior, Senior District J udg e, Presiding

Arg ued and Submitted F ebruary 13, 2014—San F rancisco, California

F iled J une 3, 2014R O S A L E S -M A R T I N E Z V

. P A L M E R 2

B efore: Consuelo M. Callahan and Milan D. Smith, J r., Circuit J udg es, and Alvin K. Hellerstein, Senior District

J udg e. *

Opinion by J udg e Hellerstein

SUMMARY * *

Civil Rights

The panel reversed the dist r i ct court’s dismissal of an action broug ht under 42 U.S.C. § 1983 i n w hich p laintiff alleg ed that h e was unlawfully convic ted and imprisoned because defendants, acting under color o f state law, unlawfully s u ppressed the criminal history of a confidential informant who was the main witness ag ainst plaintiff.

The panel held that p ursu an t to Heck v. Humphrey

, 512 U.S. 477, 4 87 (1994), the district court erred b y di s missing the § 1983 action as time-barred under Nevada’s sta tute o f limitations becaus e even thoug h plaintiff learned o f d e f e ndants’ u nlawful actions w hile in prison, plaintiff’s § 1983 claim did not accrue unti l his convictions were later invalidated.

* T h e Ho n o rab le A lv in K. Hellerstein

, Sen io r District J u d g e f o r th e U .S. District Co u rt f

o r th e So u t

h ern District o f New Yo rk

, sittin g b y d esig n atio n

.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.R O S A L E S -M A R T I N E Z V

. P A L M E R 3

The panel held that plaintiff’ s complaint sufficiently alleg ed willful c onduct o n the par t of a police o fficer for failing to disclose the confidential informant’s criminal history

. The panel fur ther held that on remand p laintiff should be g iven an opportunity to file an amended complaint as to his municipal liability claims.

T h e p a nel g r anted W ashoe County ’s motion to supplement th e r e co r d and took judicial notice of the court documents relating to the ending of plaintiff’s jail term. The panel directed that on remand, the district court should consider if and to what ex tent plaintiff’s plea to the crime o f Unlawful Giving Away o f Controlled Substances affected his § 1983 action.

COUNSEL

M a x well V. Pritt (arg

ued), Perry Max well Grossman, a nd W ill P. Riffelmacher, B oies, Schiller & F lenx er, L L P, Oakland, California, for Plaintiff-Appellant.

Mark W

. Dunag an (arg ued) and Donald L

. Christensen, Deputy City Attorney s, J ohn J

. Kadlic, Re n o City Attorney
, Reno City Attorney ’s Office, Reno, Nevada, for DefendantsAppellees Colby

Palmer and City

of Reno.

H e r bert B

. Kaplan (arg

ued), Deputy D istrict Attorney
, a n d Richard A. Gammick, Dist rict Attorney
, W ashoe County District Attorney ’s Off

i c e , Reno, N evada, for D efendantAppellee W ashoe County

.R O S A L E S -M A R T I N E Z V

. P A L M E R 4

OP INION

HEL L E RSTEI

N, Senior District J udg e:

This is an action f

or damag es unde r 42 U.S.C. § 1983. The plaintiff, Pedro Rosales-Martinez

, complains that he was unlawfully convicted and imprisoned as a result of violations of his constitutional rig hts. He alle ge s that the d e fendants, acting under color of State law, unlawfully suppr e s sed the criminal history of a confidential informant who was the main witness ag ainst him, failed to produce the documents refl ecting that criminal history

, and thus c aused him to be found g uilty of several c ounts of d rug trafficking and to be sentenced to a term of ten to twenty -five y e a r s

. RosalesMartinez alleg es that the Nevada state courts recog niz ed the constitutional error, g ranted his petition f o r a w rit of h abeas
corpus, a nd ordered him freed, o n December 2, 2 008. He alleg es that he served four and a half y ears in prison because of defendants’ c onstitutional errors, and s e e ks substantial damag es.

On motion of defendants, the d istrict court dismissed the action as time-barred because it was not f i l e d within two
y ears of the time Rosales-Martinez le arned that the

c o n f i dential informant h ad an ex tensive c riminal history which had no t b e e n produced to him. W e reverse a nd remand. P u rsuant to Heck v. Humphrey

, 512 U .S. 477, 487 (1994), Rosales-Martinez ’ s cause of action did n o t accrue until his c onviction was held invalid. We write to clarify our law on when a r eleased prisoner’s cause of acti o n for constitutional violations a c c rues, and when the statute o f limitations beg ins to run.R O S A L E S -M A R T I N E Z V

. P A L M E R 5

Shortly b e f

ore arg ument of the appeal, Defendant Washoe C o u n ty asked us by motion to take judicial notice of cou r t records describing the circumstances leading to RosalesMartinez ’s release from imprisonment and, particularly

, a stipulated a g reement between Rosal e s

- Martinez and the prosecutor and the minutes of his re-sentencing

. W e h o ld that judicial notice is appropriate, b ut that the di s trict court, following remand, shou ld address the relevance a nd sig nificance of the court records in relation to the viability o f Rosales-Mart i n e z ’ s c laim, and the scope o f his potential damag es.

STANDARD OF REVIEW

W e review the district court’s g rant of a motion to dismiss de novo

. Cassirer v. Thyssen-Bornemisza Collection Found.

, 737 F .3 d 6 1 3
, 615 (9th Cir. 2 013). I n reviewing the district court’s decision w e treat the facts a l l e ge d in RosalesMartinez ’s complaint as true, id.

, and we const r u e his complaint liberally because he drafted i t p r o se , W olfe v

. Strankman

, 392 F .3d 358, 362 (9th Cir. 2004). However, we

are “not bound to accept a s true a l e g al conclusion c ouched

as a factual alleg ation.” Bell Atl. Corp. v

. Twombly

, 550 U.S. 544, 5 55 ( 2007) (internal quotation marks omitted). T h e complaint “must contain sufficient factual matter, accepted a s true, to state a claim to r elief that is plausible on its fa ce.” Ashcroft v

. Iqbal

, 5 5 6 U.S. 662, 678 (2009) (internal quotation marks omitted).R O S A L E S -M A R T I N E Z V

. P A L M E R 6

BACK G ROUND

I. District Court P roceedings

Rosales-Martinez

, proceeding pro se , filed his complaint

on December 1, 2010 ag a inst the State of Nevada, the City o f Reno, W ashoe Coun t y ( i n w hich Reno is located), police officials and prosecutors of those g overnmental e ntities, a nd Guadalupe Cortez
, a confidential informant to the police w ho testified ag ainst him. 1 Rosales-Martinez alleg ed that Officer Palmer and other defendants entered into an ag reement with Guadalupe Cortez to release h im if he c ould help trap Rosales-Martinez as he committed a drug crime.

Rosales-Martinez wa s arrested on drug charg es. Cortez

was the only witness to testify ag ainst him. T he Nevada state court ordered the g o vernment in p r e

- t r ial proceeding s to disclose Cortez ’s criminal h istory to Rosales

- M a rtinez but, Rosales-Martinez a lleg es, the g o v ernment d i d n ot do so. Plaintiff alleg e s that the d efendants k n ew or should have known that Cortez had an ex tensive crimi n a l history under the alias J org e Alg arin, 2 and did not disclose t h a t history to the prosecutor or to Rosales-Martinez

.

1 P l a i n t i ff serv ed th e co m p lain t o n f

ou r d ef en d an ts: th e City o f Ren o ; Of f icer Co lb y P alm er, an em p l o y ee o f t

h e City o f Ren o Po l i ce Dep artm en t; W ash o e C o u n ty ; an d Of f icer Heid i P o e, an em

p l o y ee o f th e W ash oe Co u n ty P aro le an d P ro b atio n Dep artm en t; o th er d ef en d an ts w ere

n o t serv ed

.

2 Ro s ales- Martin ez alleg es th at th e d ef en d an ts’ reco rd s co n tain ed co pies

o f A lg arin ’ s crim in al h i sto ry an d A lg arin ’ s f i n g erp rin ts, w

h ich w o u ld h av e in d icated th at A lg arin an d Co rtez w ere th e sam e p erso n

.R O S A L E S -M A R T I N E Z V

. P A L M E R 7

After a J uly 2004 trial, Rosales-Martinez w as convicted of two counts of Trafficking in a C o ntrolled Substance, o ne count of Unlawful Giving Away of a Controlled S u b s t ance, and one Count of Possession of a Controlled Substance. On September 28, 2004, Rosales -M artinez was sentenced to a term of imprisonment of ten to twenty -five y ears.

Plaintiff alleg es that he l e a r n ed that Cortez and Alg arin

were the same person while in prison. W ith this information, Rosales-Martinez

, on an unknown date, filed a petition in the W a shoe County District Court for habeas corpus, claiming th at the State’s failure to disclose Cortez ’s criminal history violated his constitutional rig hts. On December 2, 2 008, the
state Distri c t Court g ranted Rosales-Martinez ’s petition a nd ordered his release from prison.

On Dece m b e r 1
, 2010, almost two y ears after he was ordered released, Plaintiff filed this f ederal court lawsuit. He alleg es that defendants v iolated his constitutional ri g h ts b y failing to disclose Cortez ’s c riminal h istory during p r e-trial proceeding s, and even after h is convi c t i on. He alleg es that the City of R eno and W ashoe County violated his constitutional rig hts by f

a i l i n g to train employ ees in record keeping

, by failing to create an adequate sy stem for storing and retrieving information, and by treating Mex icanAmericans differently

from other American citiz ens.

Defendants Palmer and the City of Reno moved to dismiss Rosa l e s-Martinez ’s complaint f or failure to state a leg ally sufficient claim, a rgu i ng , inter alia

, that the action

was time-barred. Defendants Poe and W ashoe County also filed a motion to dismiss and motions for a more d e f i nite statement, pursuant to F ederal Rule of Civil Procedure 12(e).R O S A L E S -M A R T I N E Z V

. P A L M E R 8

On D ecember 13, 2011, the district court g ranted the City of Reno and Palmer’s m o t i o n to dismiss, and dismissed the complai n t a ga inst a ll d efendants as barred by the statute o f limitations, without leave to f ile a n amended comp l a i nt. Apply ing the two-y ear statute of limitations that g overns § 1983 actions filed in N evada, the district court reasoned that Rosales-Martinez ’s cause of action had accrued when he first “knew or had reason to know o f D efendants’ alleg ed withholding of ex onerating information.” That w a s the time, the district court ruled, that Plainti f f knew that his constitutional rig hts to a fair tria l h ad been violated because of the prosecution ’ s f

ailure to produce Brady a nd Giglio material. See Brady v

. M

aryland

, 373 U.S. 83 (1963); Giglio

v. United St a tes , 405 U.S. 1 50 ( 1972). Since RosalesMartinez had known a b o u t these violations before the December 2, 2008 order of the W ashoe County District Court ordering h is release from prison, mo re t h a n two y ears h ad elapsed before Rosales-Martinez f iled his § 1983 action on December 1, 2010. Hence, the district c ourt ruled, RosalesMartinez could no long er sue.

II. The Record on Appeal

Rosales-Martinez

, proceeding pro se , f i led a timely appeal from the district court’s ju d gm e nt. This Court appointed pro bono counsel to represent him on appeal.

J ust seven day s before the oral arg ument scheduled in this
case, W ashoe County moved to supplemen t t h e record on appeal with court records relating to the ending o f RosalesMartinez ’s jail term. Specifically

, W ashoe County asked this C o u r t to take judicial notice of a stipulated ag reem e n t between the prosecutor and Rosales-Martinez

, a plea of g uilty by Rosales-Martinez to t h e l e a s t serious of the charg es o fR O S A L E S -M A R T I N E Z V

. P A L M E R 9

which h e was convicted, and his sentence of a certain portion of the time he served in c ustody

. Th e s e documents, if admitted, sug g ested the possibility o f a dif f e r e nt contex t to Ro s a l es-Martinez ’ s alleg ation that the Washoe County District Court simply ordered him to be released in response to his petition for habeas corpus.

The court doc u m e nts are summariz ed as follows: A stipulated ag reement of D ecember 2, 2008 between RosalesMartinez (represented by counsel) and the State o f Nevada, acting throug h the W ashoe County D istrict Attorney ’s Office, providing that Rosales-Martinez ’s conviction “[ was] vacated based on the cumulative e rrors g round as alleg ed in [ RosalesMartinez ’s habeas] petit i o n ;” that, in return, RosalesMartinez w ould plead g uilty to one count of Unlawful Giving Away of a Controlled Substance, a crime which h ad been charg ed in Count I V of the Second Am e nded I n formation
ag ainst Rosales-Martinez ; and that Ro sales-Martinez would withdraw his petition for habeas corpus with prejudice. The stipulated ag reement went on to provide that the State would recommend to the court that Rosales-Mar t i n e z be immediately sentenced to time served, a nd would dismiss all other charg es ag ainst Rosales-Martinez , with prejudice.

I n a second court document dated the same day

, RosalesMartinez si g ned a g uilty plea memorandum, pursuant to which he pleaded g uilty to the offense of Unla w f u l Giving Away a Controlled Substance in violation of Nev. Rev. Stat. § 453.321. I n the plea memor a n d u m , he stated that he g ave methamphetamine, a Schedule I controlled substanc e , to an undercover police o fficer and that he faced imprisonment for

a p e r i o d o f o ne to six y ears in the Nevada State DepartmentR O S A L E S -M A R T I N E Z V

. P A L M E R 10

of Corrections. 3 The plea memorandum noted that the State had ag reed to stipulate that the time served in his c ase would be “all the time that I have served,” b ut al s o n o t e d that the
state court was not bound by the parties’ ag reement and could impose a different sentence.

I n a third court document, the minutes of a c ourt proceeding based on the stipulation betwee n the parties, the W a shoe County D istrict Court “vacate[ d] the convictions” in Rosales-Martinez ’s c riminal c ase “based on the c umulative

errors g round [ sic] as a lleg ed in [ his habeas] pe t i t i o n.” On December 2, 2008, t h e co urt entered an amended judg ment, finding that Rosales- M a r t inez was g uilty of the crime o f Unlawful Giving Away of a Controlled Substance. The court imposed a punishment of “time already served” and g ave Rosales-Martinez credit for five h u ndred and one day s time served. 4 T he Cou r t ’ s a mended order w as nunc p ro tunc , 5 to September 28, 2004.

3 Sectio n 4 5 3 .3 21 (1 )(a) p ro v id es th at “ i t is u n law f u l f o r a p erso n to

. . . g iv e aw ay

. . . a co n tro lled

. . . su bstan ce.” Un d er Nev ad a law

, a v io latio n

o f su b sectio n (1 ) in v olv i n g a sch ed u le I co n tro lled su b stan ce, su ch as

m eth am ph etam in e, s h all be p u

n ish ed by b e t w e e n o n e an d f if teen y ears’ im p riso n m en t, d ep en d in g o n th e d ef en dan t’ s p rio r o f

f en ses, an d a f

in e of

n o t m o re th an $2 0 ,0 00

. Nev

. Rev

. Stat. § 4 5 3 .3 2 1 (2 )(a)– (c). A f irst tim e

o f f en d er f aces im p riso n m en t o f

b etw een o n e an d six y ears. Id

.

4 If Ro sales- Martin ez h ad b een in carcerate d b e t w e en Sep tem b er 2 8
, 2 0 0 4 an d D ecem

b er 2
, 2 0 0 8
, as h e alleg es, h is tim e in p riso n su b stan tially

w o u ld h av e ex ceed ed 5 0 1 d ay s.

5 “ A n u n c p ro tu n c o r d e r i s an o rd er th at is en tered retro activ e to a certain d ate.” Ma ck v. Esta te of M a ck

, 2 0 6 P .3 d 9 8
, 1 0 1 n .2 (Nev

. 2 0 0 9 ).R O S A L E S -M A R T I N E Z V

. P A L M E R 11

Presumably

, Rosales-Martinez w a s r e l e ased from c ustody

on the same day as a ll this occurred, on December 2, 2008, a s he alleg es in his complaint.

D ISCUSSION

I. The Motion to S u p plem ent the Record and Take Judicial Notice

W e g rant W ashoe County ’s motion to supplement t h e record. I t is well established that we may take judicial notice of judi c i a l p r oceeding s in other courts. See Dawson v

. Mahoney

, 451 F .3d 550, 551 n.1 (9th Cir. 2006); U.S. e x rel. Robinson R ancheria Citiz e n s C ouncil v. Borneo, Inc.
, 971 F .2d 244, 248 (9th Cir. 1992). An d

, while the motion was filed a t the eleventh hour, the Ninth Circ u i t Rules do not place time limits on r equests that this Court ta k e j u d icial notice of proceeding s in other courts. The c o u r t documents provide relevant and material details adding to and clarify ing the alleg a tions of the complaint r elating to plaintiff’s release from jail. W ithout the court documents, we would be bound
to accept, without question, Rosales

- M artinez ’s alleg ation that the W ashoe County District Court had g ranted his h abeas petition on the basis of its a lleg ations. The court documents reveal a more complicated and somewhat diffe re n t account, sug g esting t h e invalidity of the more serious counts of d rug trafficking

, the continuing val i d ity of Rosales-Martinez ’s conviction for the less serious d rug crime of Unlawful Giving Away
, and a new sentence g iving credit for a portion o f the jail term that he already

served.

There is no question that justice requires us to co n s i d er t h e f ull e vents relating to the invalidation of Plaintiff’s

c o n victions and jail term, and not merely a simplified, a n dR O S A L E S -M A R T I N E Z V

. P A L M E R 12

perhaps somewhat misleading

, conclusory alleg ation of what occurred. Courts are instructed, i n d e ciding Rule 1 2(b)(6) motions, to read the alleg ations of a complaint in the c ontex t

o f the full documents which the alleg ations purpor t t o summariz e and, where appropriate, to accept the documents, rather that a characteriz ation of the documents, as t h e t r u e account. See Cooper v

. Pickett

, 137 F

. 3d 616, 622–23 (9th Cir. 1997). Thus, we g rant W a shoe County ’s motion to supplement the record, and w e take judicial notice of the court documents presented by the motion.

II. The Accrual of

Rosales-Martinez’s Claim

The district court dismissed Rosales-Martinez ’s claim a s untimely because it wa s n ot filed within the two y ears allowed by Nevada law. N evada law p rovides the statute of limitations because, in the absence of a federal provision for § 1983 a ct ions, the analog ous state statute o f limitations for personal injury claims a pplies. T h e ap p l i cable statute o f l imitations in Nevada is two y ears. Perez v. Seevers
, 869 F .2d 425, 4 26 (9th Cir. 1989); Nev. Rev. Stat. § 11.190(4)(e).

However, “[ f

] e d eral law determines when a cause o f action accrues and the statute of limitations beg ins to run for

a § 1983 claim.” Bagley v

. CMC Real Estate Corp.
, 923 F .2d 7 5 8
, 760 (9th Cir. 1991). I n the ordinary case, “[ a] feder al claim accrues w hen the plaintiff k nows or has reason to know of the injury which is the b asis of the action.” Id. (internal quotation m a r k s omitted). Apply ing that rule, the district
court evaluated Rosales-Martinez ’s claims. The co m p laint alleg es that Rosales-Martinez was injured by the suppression of evidence a

nd his w rong ful c o nvicti o n

. Thus, the district
court ruled that Rosales-Martinez was aware that DefendantsR O S A L E S -M A R T I N E Z V

. P A L M E R 13

failed to produce Cortez ’ s criminal r ecord some time before his sen t e n ce was invalidated on December 2, 2008, a nd therefore more than two y ears before Rosales-Martinez filed his § 1983 action, on December 1, 2010.

However, a s we r ecently held, a prisoner’s claim for relief based on an unlawful sentence d oes no t a ccrue u ntil his
sentence is invalidated, necessarily a later date than when he learned of the prosecutor’s unlawful actions. See Jackson v

. Barnes
, — F .3d —, Dkt. No. 09–55763, 2014 W L 1424448,
at * 3 (9th Cir. April 14, 2014). T hat decision followed Heck

, 512 U.S. 477. 6

I n H eck

, plaintiff Heck, a state prisoner se r v i n g t ime for voluntary manslaug hter, filed a § 1983 action in federal court seeking d amag es for various constitutional violations that he alleg ed had occurred during his p ros e cu t i o n

. Noting “the hoary p r inciple that civil tort a ctions are not appropriate vehicles for c halleng ing the v alidity of o utstanding c r i m inal judg ments,” id. at 4 86, the Supreme Court dismissed Heck’s case, holding that

in order to r eco v e r damag es f or alleg edly unconstitutional conviction or imprisonment,

or for other h a r m caused by actions whose unlawfulness would r ender a conviction o r sentence invalid, a § 1 983 plaintiff must prove that the conviction or s e n tence has been

6 Def en d an ts a r g u e th at Ro sales- Martin ez can n o t rely o n Heck in th is Co u rt, b ecau se h e d id n o t cite it b ef o re th e d i s t rict co u

rt. B u t, sin ce Ro sales- Martin ez arg u ed in th e district co u rt th at th e s tatu te o f lim itatio n s d id n o t beg in to ru n u n til h i s r e l e a s e f ro m p riso n h e p reserv ed th e arg u m en t, ev en

th o u g h h e d id n o t

ex p ressly

cite Heck

.R O S A L E S -M A R T I N E Z V

. P A L M E R 14

reversed on direct appeal, ex pung ed b y

ex e c u t ive order, declared invalid by a state t r i b u n a l a u t h o r i z e d t o m a k e s u c h determination

, o r called into question by a federal court’s issuance of a w rit of hab eas corpus, 28 U.S.C. § 2254.

Id. at 486–87.

The Supreme Court ex plained that under its ruling

, a § 1983 a c t i on challeng ing a conviction or sentence does not “ex ist[ ] ” until the conviction or sentence is invalidated. Id. at 489. Since such an action cannot be pursued until the underly ing conviction or sentence is invalidated, “a § 19 83

c a u s e o f a c t i o n f

o r d a m a g e s a t t r i b u t a b l e t o a n unconstitutional conviction o r sentence cannot accrue until the conviction or sentence has been i nvalidated.” Id. at 489–90. Thus, the Heck rule for defe rr e d accrual “delay s what otherwise would be the accrual date of a tort action until the setting aside of a

n ex tant conviction w hich success in that
tort action would impug n .” W allace v. K

a t o , 5 49 U.S. 384, 393 (2007) (emphasis omitted).

To determine whether the H eck rule applies, “the district
court must consider whether a judg m e n t in favor of the plaintiff would necess a r i ly imply the invalidity of his conviction or sentence.” Heck

, 512 U .S. at 48 7 (emphasis added) ; s e e also W

eilburg v. Shapiro

, 488 F .3d 1202, 1206–07 (9th Cir. 2 001) (finding Heck inapplicable to a § 1983 action based o n an al leg ed violation of e x tradition rig hts, because the “alleg ations, if proven, w o uld not invalidate [plaintiff’s] incarceration”). I f a judg ment in favor of the plaintiff would necessarily im p l y t h e invalidity o f a

c onviction or sentence, then the cause of action does n o tR O S A L E S -M A R T I N E Z V

. P A L M E R 15

accrue until that conviction or sentence has been invalidated. Heck

, 512 U.S. at 487; W

allace

, 5 49 U

. S

. a t 393. This requires a n inquiry into what a plaintiff would need to prove in order to succeed on his theory o f t h e case, not an inquiry into whether a plaintiff w ould be able to succeed on t he

m e rits. See O wens v. W h ite
, 3 4 2 F .2d 817, 819 (9th Cir. 1965) ( “W hether [ a] plaintiff’s claim has accrued is a question o f l a w

. . . [ that] does n o t reach the merits of the claim but instead involves the very ex istence of the claim itself.”).

Rosales -Martinez seeks to recover d amag e s in this civil

case because of an unconstitutionally procured conviction in his crim i n al case. Rosales-Martinez claims that his conviction and impr i s o nment were invalid because the Defendants failed to disclose in his criminal case the criminal history o f Cortez
, the main witness ag ainst him, thus violating their constitutional oblig ations and Rosales-Martinez ’ s rig ht
to a fair trial. I f Rosales-Martinez were to recover a judg ment in his civil case, it would mean that his conviction

was invalid. Heck therefore teaches that Rosales-Martinez ’s claims did not accrue until the Neva d a c o urt vacated those convictions on December 2, 2008. Since Rosales-Martinez commenced his lawsuit on December 1, 2010, less than two
y ears after December 2
, 2008, his c l a i m w as timely a nd the district c ourt erred in d ismissing it as time

- b a r r e d. W e discuss the remedy

for that error later in this decision.

III. Claim s Against P alm er

Defendant police officer Colby Palmer adds an additional
arg ument for dismissing th e c o mplaint a g ainst him. Palmer
arg ues that the district court should have dismissed RosalesMartinez ’s claims ag ains t h i m , even if timely

, because theR O S A L E S -M A R T I N E Z V

. P A L M E R 16

c o m p laint did not alleg e that Palmer acted with deliberat e indifference or reckless disreg ard. 7 As Palmer arg u es, “[ a] § 1983 plaintiff must show that police officers acted w i t h deliberate indifferenc e to or reckless disreg ard for an accused’s rig h ts o r f

or the truth in withholding evidence from prosecutors.” Tennison v. City and County of San Francisco
, 570 F .3d 1078, 1089 (9th Cir. 2009).

W e reject Palmer’s arg ume n t. Rosales-Martinez ’s complaint alleg es that Palmer knew or should h a ve kn o wn about Cortez ’s criminal history and that Palmer “ f ailed o r refused” to disclose that h istory when ordered to do so by the Count y C o u r t

. Particularly in the c ontex t of a pro se complaint, the alleg a tion of willful conduct is sufficient.

IV. Claim s Against W ashoe County a nd the City of Reno

Rosales-Martinez concedes that his c omplaint, a s w ritten, does not plead sufficient facts to state claims for municipal liability

. A ccording ly

, his claims ag ainst W ashoe County a nd the City of Reno are dismiss ed w i thout prejudice. On remand, Rosales-Martinez should be g iven an opportunity to file an amended complaint ag ainst these defendants. See A

. E.

ex rel. Hernandez v. Cnty. of Tulare

, 666 F .3d 631, 637–38 (9th Cir. 2012); Monell v. Dep’t of Soc. Servs.
, 436 U.S. 658 (1978).

7 Ev en th o u g h th e district co u rt d id n ot ad d ress th is arg u m en t , w e

co n sid er i t in th e f

irst in stan ce b ecau se P alm er raised t h e arg u m en t b ef ore t h e d i strict co u rt an d “ w e m ay su stain th e d ism issal f o r reaso n s n o t ad d ressed b y t

h e co u rt b elo w .” Peru g in i v. S a fewa y S to res, In c. , 9 3 5 F.2 d 1 0 8 3 , 1 0 8 6 (9 th

Cir. 1 9 9 1).R O S A L E S -M A R T I N E Z V

. P A L M E R 17

V. Considering the Judicially Noted F acts of Record on Rem and

The court r ecords relating to the invalidation of RosalesMartinez ’s conviction and h is release f rom custody present a

more compl icated picture of the events than the simple alleg ation o f his c o mplaint, that “[ u ] p o n review of the petiti on for habeas corpus,” the state court ordered his release. W hen reading a complaint that incorporates o r summariz e s documents, we may also consider the documents thus incorporated or summariz e d

. S ee Cooper
, 137 F .3d at 622–23.

On December 2
, 2008, Rosales-Martinez ag reed to plead
g uilty o n the unde rs t a n d ing that the prosecutor would recommend a sentence of “ time served,” which could be “ all the time I have served,” but accepted that the c o u rt “could impose a d ifferent sentence.” The s e n tencing judg e g ave Rosales-Martinez credit for 501 day s “time served,” nunc pro tunc to September 28, 2004, the date o f Rosales-Martinez ’s orig ina l twenty y ear sentence. I mmediately after this
ag reement, plea, and sentence, Rosales-Martinez was freed.

T h e f a ct that Rosales-Martinez was reconvicted followi n g the vacation of his initial convictions, means that he still has

a n o u tstanding conviction. This outstanding conviction raises the question whether Rosales-Martinez ’s § 1983 action is barred by Heck ’s holding that “[ a] claim for damag es [based]

o n a conviction or sentence that has not been so invalida t e d is not cog niz able.” See Heck , 512 U.S. at 487.

W e held recently that a succes s i v e conviction of g u ilt following a re-trial did not b ar a § 1983 claim. Jackson

, 2014 W L 1424448, at *3. I n

that case, the prosecutor had offeredR O S A L E S -M A R T I N E Z V

. P A L M E R 18

J ackson’s admission a s p r o o f of g uilt. However, the admission was obtained u nconstitutionally

, without advising J ackson of his rig ht to remain silent, in violation of Miranda

v. Arizona
, 384 U.S. 43 6 ( 1 9 66). The conviction was h eld invalid. J ackson, who remained in prison having been convicted of other crimes, was re

- t ried, convicted, a nd sentenced to twenty

- six y ears in prison.

Meanwhile, J ackson filed a § 1983 lawsuit, seeking d amag es for his initial conviction. The district co u r t dismissed the suit, h olding that under Heck v. Humphrey

, his claim f or damag es w as inconsistent with the judg ment o f conviction following his re-trial. The panel reversed, holding that since the conviction initially obtained was invalidated, a § 1983 lawsuit would not be incons i stent, even thoug h the later trial produced a like ju d g ment of conviction. See Jackson

, 2014 W L 1424448 a t *3 (n o t i n g t hat the § 1983 action did “not have any bearing on” the second conviction).

The panel ruled that while J ackson could state a claim, he

was not entitled to any compensatory damag es for his time in prison, since J ackson “was not imprisoned for any additional time as a r esult of h is first, i l l e ga l conviction.” Id. a t *4. However, J a ckson could seek punitive and nominal d amag es. Id. The panel remanded the case t o t h e district court for further proceeding s not inconsistent with the panel’s ruling

.

Jackson cited with approval a recent en banc decision of the Second Circuit, Poventud v. City of New Y ork

, — F .3d —, No. 12-1011, 2014 W L 1 82313 (2d Cir. J an. 16, 2014) (en banc). There, the defendan t h ad been convicted in the New York state courts of attempted murder, robbery and assault o f

a driver of a tax icab, and sentenced to a term of custody of 10
to 20 y ears. After serving six y ears, the s t a t e c ourtR O S A L E S -M A R T I N E Z V

. P A L M E R 19

invalidated the conviction because of the prosecutor’s failure
to d isclose material evidence relevant to the credibility of the main witness ag a ins t d e fendant, in violation of his constitution a l r i ght to a f air trial under Brady

, 373 U .S. 83, and Giglio

, 405 U.S. 150. Defendant then entered into a plea
ag reement with the prosec u t or pursuant to which defendant pleaded g uilty of attempted r obbery

, ag reed to a s e n tence o f

one y ear of the time he served, and immediately was released. He then filed a § 1983 lawsuit. The district court dismissed his claim as inconsistent w i t h H e ck v

. Humphrey

. The Second Circuit, en banc, reversed and remanded to the district

cour t f o r further proceeding s. The en b anc court wrote six opinions. Ten of the judg es favored a remand to sort out the
scope of consistency and inconsistency w ith Heck ; six seemed to favor dismissal of the case.

I n Poventud

, the defendant had conte s t e d his g uilt b y presenting an alibi. The dissenting judg es a rgu e d that his plea o f g uilty to attempted robbery was inconsistent with any notion of alibi as a defense, and a § 1983 lawsuit, if allowed, would be inconsiste n t with the judg ment of conviction ultimately obtained, and thus also be inconsistent with Heck

v. Hump h r e

y

. See Poventud

, 2014 W L 182313 ( J acobs, J
., dissenting ); id. (L ivi ng ston, J
., dissenting ). J u dg e L y nch, concurring w ith the majority

, ex pressed the view that defendant’s a g reement to plead g uilty to a lesser offense a nd
to a time-served sen tence w as the practical price for immediate freedom, and that this realism should prevail over notions of log ical consistency . The rest of the majority took the v iew that there was no i n c o n sistency between the defendant’s § 1983 claim based o n the invalidation o f t h e conviction for attempt e d murder and his plea, after that invalidation, to attempted robbery of the tax icab driver. TheR O S A L E S -M A R T I N E Z V

. P A L M E R 20

en banc c ourt left the issue of damag es to the district court to sort out. See Poventud

, 2014 W L 182313, at *11 & n.8.

Th e viability and scope of Rosales-Martinez ’s § 1983 claim, in relation to Heck v. H umphrey and pursuant to Jackson should be evaluated by the district judg e on remand. I n that connection, Rosales-Martinez ’ s D e cember 2, 2008
g uilty p lea to one of the orig inal four counts and the credit he received for 5 01 day s of prison time for that sentence sug g ests a c o n tinuous validity to a p ortion of his orig inal conviction and sentence, and a poss ible inconsistency between it and a § 1983 action, which may pose a distinction with Jackson

. I n J

ackson

, the entire initial conviction was held invalid; thus, the Ninth Circuit held, the § 1983 ca s e could proceed without violating the rule of Heck v

. Humphrey

. I n our case, Rosales-Martinez p l e a d ed g uilty to

one of the four c ounts of his orig inal convictio n , w i t h the other three being held invalid. On remand, the district judg e mig ht consider if this and other d ifferences between the case before us a

nd the decision in Jackson a r e sig nificant. F o r

ex a mple, the district judg e may wish to consider the ex tent to which Rosales-Martinez can seek compensatory damag e s based on the convictions that were vacated as invalid, and the time he served on the count that remained valid, f or w hich he

was g iven c redit for 501 d a y s o f time served. The district judge m a y a l so wish to consider whether any of the facts Rosales-Martinez allocuted to in his December 2, 2008 plea

ar e i n c o n sistent with his a lleg ations in this § 1983 action. These q uestions are i l l u s t r a tions; the district judg e is free to pursue all relevant facts and inquiries.

Althoug h we t o o k judicial notice of the court records relating to Rosales-Marti n ez , Rosales-Martinez has not h ad

an o p portunity to present hi s v i e w s with reg ard to theseR O S A L E S -M A R T I N E Z V

. P A L M E R 21

records. A court o f appeals should n ot rule on the sig nificance of Rosales-M a r t i n ez ’s plea in the absence o f a complete record and the comments of b oth sides, plai n t i f f a nd defendants, and without the b e n e f it of the district court’s analy sis. According ly

, w e remand this case to the district court so that it may

consider such a full record.

CONCLUSION

Ro sales-Martinez ’s § 1983 claims for wrong f ul conviction did not accrue until his convictions were vacated. According ly

, the district court erred in dismissing his action

as untimely

. On remand, the district court should c onsider if and to what ex tent Rosales-Martinez ’s plea t o t h e crime o f Unlawful Giving Away

of Controlled Substances a ffects his § 1983 action.

REVERSED and REMANDED

.