FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PEDRO ROSALES-MARTINEZ,

Plaintiff-Appellant,

v.

COLBY PALMER, individually and as

a police officer for Reno Police

Department; HEIDI POE, individually

and as an officer for Washoe County

Parole and Probation Department; K.

M. LORENZO, individually and as an

officer for Washoe County Parole

and Probation Department; JENNIFER

REICHELT, individually and as

officer for Parole and Probation

Headquarters General Service Unit

Records; WASHOE COUNTY,

NEVADA; CITY OF RENO;

GAUDALUPE CORTEZ; and STATE OF

NEVADA,

Defendants-Appellees.

No. 12-15077

D.C. No.

3:10-cv-748-

ECR-VPC

OPINION

Appeal from the United States District Court

for the District of Nevada

Edward C. Reed, Junior, Senior District Judge, Presiding

Argued and Submitted

February 13, 2014—San Francisco, California

Filed June 3, 2014
2 ROSALES-MARTINEZ V. PALMER

Before: Consuelo M. Callahan and Milan D. Smith, Jr.,

Circuit Judges, and Alvin K. Hellerstein, Senior District

Judge.*

Opinion by Judge Hellerstein

SUMMARY**

Civil Rights

The panel reversed the district court’s dismissal of an

action brought under 42 U.S.C. § 1983 in which plaintiff

alleged that he was unlawfully convicted and imprisoned

because defendants, acting under color of state law,

unlawfully suppressed the criminal history of a confidential

informant who was the main witness against plaintiff.

The panel held that pursuant to Heck v. Humphrey, 512

U.S. 477, 487 (1994), the district court erred by dismissing

the § 1983 action as time-barred under Nevada’s statute of

limitations because even though plaintiff learned of

defendants’ unlawful actions while in prison, plaintiff’s

§ 1983 claim did not accrue until his convictions were later

invalidated. 

* The Honorable Alvin K. Hellerstein, Senior District Judge for the U.S.

District Court for the Southern District of New York, sitting by

designation.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
ROSALES-MARTINEZ V. PALMER 3

The panel held that plaintiff’s complaint sufficiently

alleged willful conduct on the part of a police officer for

failing to disclose the confidential informant’s criminal

history. The panel further held that on remand plaintiff

should be given an opportunity to file an amended complaint

as to his municipal liability claims.

The panel granted Washoe County’s motion to

supplement the record 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 extent plaintiff’s plea to the crime of

Unlawful Giving Away ofControlled Substances affected his

§ 1983 action.

COUNSEL

Maxwell V. Pritt (argued), Perry Maxwell Grossman, and

Will P. Riffelmacher, Boies, Schiller & Flenxer, LLP,

Oakland, California, for Plaintiff-Appellant.

Mark W. Dunagan (argued) and Donald L. Christensen,

Deputy City Attorneys, John J. Kadlic, Reno City Attorney,

Reno City Attorney’s Office, Reno, Nevada, for DefendantsAppellees Colby Palmer and City of Reno.

Herbert B. Kaplan (argued), Deputy District Attorney, and

Richard A. Gammick, District Attorney, Washoe County

District Attorney’s Office, Reno, Nevada, for DefendantAppellee Washoe County.
4 ROSALES-MARTINEZ V. PALMER

OPINION

HELLERSTEIN, Senior District Judge:

This is an action for damages under 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 rights. He alleges that the defendants,

acting under color of State law, unlawfully suppressed the

criminal history of a confidential informant who was the main

witness against him, failed to produce the documents

reflecting that criminal history, and thus caused him to be

found guilty of several counts of drug trafficking and to be

sentenced to a term of ten to twenty-five years. RosalesMartinez alleges that the Nevada state courts recognized the

constitutional error, granted his petition for a writ of habeas

corpus, and ordered him freed, on December 2, 2008. He

alleges that he served four and a half years in prison because

of defendants’ constitutional errors, and seeks substantial

damages.

On motion of defendants, the district court dismissed the

action as time-barred because it was not filed within two

years of the time Rosales-Martinez learned that the

confidential informant had an extensive criminal history

which had not been produced to him. We reverse and

remand. Pursuant to Heck v. Humphrey, 512 U.S. 477, 487

(1994), Rosales-Martinez’s cause of action did not accrue

until his conviction was held invalid. We write to clarify our

law on when a released prisoner’s cause of action for

constitutional violations accrues, and when the statute of

limitations begins to run.
ROSALES-MARTINEZ V. PALMER 5

Shortlybefore argument of the appeal, Defendant Washoe

County asked us by motion to take judicial notice of court

records describing the circumstances leading to RosalesMartinez’s release from imprisonment and, particularly, a

stipulated agreement between Rosales-Martinez and the

prosecutor and the minutes of his re-sentencing. We hold that

judicial notice is appropriate, but that the district court,

following remand, should address the relevance and

significance of the court records in relation to the viability of

Rosales-Martinez’s claim, and the scope of his potential

damages.

STANDARD OF REVIEW

We review the district court’s grant of a motion to dismiss

de novo. Cassirer v. Thyssen-Bornemisza Collection Found.,

737 F.3d 613, 615 (9th Cir. 2013). In reviewing the district

court’s decision we treat the facts alleged in RosalesMartinez’s complaint as true, id., and we construe his

complaint liberally because he drafted it pro se, Wolfe v.

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

are “not bound to accept as true a legal conclusion couched

as a factual allegation.” Bell Atl. Corp. v. Twombly, 550 U.S.

544, 555 (2007) (internal quotation marks omitted). The

complaint “must contain sufficient factual matter, accepted as

true, to state a claim to relief that is plausible on its face.” 

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal

quotation marks omitted).
6 ROSALES-MARTINEZ V. PALMER

BACKGROUND

I. District Court Proceedings

Rosales-Martinez, proceeding pro se, filed his complaint

on December 1, 2010 against the State of Nevada, the City of

Reno, Washoe County (in which Reno is located), police

officials and prosecutors of those governmental entities, and

Guadalupe Cortez, a confidential informant to the police who

testified against him.1 Rosales-Martinez alleged that Officer

Palmer and other defendants entered into an agreement with

Guadalupe Cortez to release him if he could help trap

Rosales-Martinez as he committed a drug crime.

Rosales-Martinez was arrested on drug charges. Cortez

was the only witness to testify against him. The Nevada state

court ordered the government in pre-trial proceedings to

disclose Cortez’s criminal history to Rosales-Martinez but,

Rosales-Martinez alleges, the government did not do so. 

Plaintiff alleges that the defendants knew or should have

known that Cortez had an extensive criminal history under

the alias Jorge Algarin,2and did not disclose that history to

the prosecutor or to Rosales-Martinez.

1 Plaintiff served the complaint on four defendants: the City of Reno;

Officer Colby Palmer, an employee of the City of Reno Police

Department; Washoe County; and Officer Heidi Poe, an employee of the

Washoe County Parole and Probation Department; other defendants were

not served.

2 Rosales-Martinez alleges that the defendants’ records contained copies

ofAlgarin’s criminal history and Algarin’s fingerprints, which would have

indicated that Algarin and Cortez were the same person.
ROSALES-MARTINEZ V. PALMER 7

After a July 2004 trial, Rosales-Martinez was convicted

of two counts of Trafficking in a Controlled Substance, one

count of Unlawful Giving Away of a Controlled Substance,

and one Count of Possession of a Controlled Substance. On

September 28, 2004, Rosales-Martinez was sentenced to a

term of imprisonment of ten to twenty-five years.

Plaintiff alleges that he learned that Cortez and Algarin

were the same person while in prison. With this information,

Rosales-Martinez, on an unknown date, filed a petition in the

Washoe County District Court for habeas corpus, claiming

that the State’s failure to disclose Cortez’s criminal history

violated his constitutional rights. On December 2, 2008, the

state District Court granted Rosales-Martinez’s petition and

ordered his release from prison.

On December 1, 2010, almost two years after he was

ordered released, Plaintiff filed this federal court lawsuit. He

alleges that defendants violated his constitutional rights by

failing to disclose Cortez’s criminal history during pre-trial

proceedings, and even after his conviction. He alleges that

the City of Reno and Washoe County violated his

constitutional rights by failing to train employees in record

keeping, by failing to create an adequate system for storing

and retrieving information, and by treating MexicanAmericans differently from other American citizens.

Defendants Palmer and the City of Reno moved to

dismiss Rosales-Martinez’s complaint for failure to state a

legally sufficient claim, arguing, inter alia, that the action

was time-barred. Defendants Poe and Washoe County also

filed a motion to dismiss and motions for a more definite

statement, pursuant to Federal Rule of Civil Procedure 12(e).
8 ROSALES-MARTINEZ V. PALMER

On December 13, 2011, the district court granted the City

of Reno and Palmer’s motion to dismiss, and dismissed the

complaint against all defendants as barred by the statute of

limitations, without leave to file an amended complaint. 

Applying the two-year statute of limitations that governs

§ 1983 actions filed in Nevada, the district court reasoned that

Rosales-Martinez’s cause of action had accrued when he first

“knew or had reason to know of Defendants’ alleged

withholding of exonerating information.” That was the time,

the district court ruled, that Plaintiff knew that his

constitutional rights to a fair trial had been violated because

of the prosecution’s failure to produce Brady and Giglio

material. See Brady v. Maryland, 373 U.S. 83 (1963); Giglio

v. United States, 405 U.S. 150 (1972). Since RosalesMartinez had known about these violations before the

December 2, 2008 order of the Washoe County District Court

ordering his release from prison, more than two years had

elapsed before Rosales-Martinez filed his § 1983 action on

December 1, 2010. Hence, the district court ruled, RosalesMartinez could no longer sue.

II. The Record on Appeal

Rosales-Martinez, proceeding pro se, filed a timely

appeal from the district court’s judgment. This Court

appointed pro bono counsel to represent him on appeal.

Just seven days before the oral argument scheduled in this

case, Washoe County moved to supplement the record on

appeal with court records relating to the ending of RosalesMartinez’s jail term. Specifically, Washoe County asked this

Court to take judicial notice of a stipulated agreement

between the prosecutor and Rosales-Martinez, a plea of guilty

by Rosales-Martinez to the least serious of the charges of
ROSALES-MARTINEZ V. PALMER 9

which he was convicted, and his sentence of a certain portion

of the time he served in custody. These documents, if

admitted, suggested the possibility of a different context to

Rosales-Martinez’s allegation that the Washoe County

District Court simply ordered him to be released in response

to his petition for habeas corpus.

The court documents are summarized as follows: A

stipulated agreement of December 2, 2008 between RosalesMartinez (represented by counsel) and the State of Nevada,

acting through the Washoe CountyDistrict Attorney’s Office,

providing that Rosales-Martinez’s conviction “[was] vacated

based on the cumulative errors ground as alleged in [RosalesMartinez’s habeas] petition;” that, in return, RosalesMartinez would plead guilty to one count of Unlawful Giving

Away of a Controlled Substance, a crime which had been

charged in Count IV of the Second Amended Information

against Rosales-Martinez; and that Rosales-Martinez would

withdraw his petition for habeas corpus with prejudice. The

stipulated agreement went on to provide that the State would

recommend to the court that Rosales-Martinez be

immediately sentenced to time served, and would dismiss all

other charges against Rosales-Martinez, with prejudice.

In a second court document dated the same day, RosalesMartinez signed a guilty plea memorandum, pursuant to

which he pleaded guilty to the offense of Unlawful Giving

Away a Controlled Substance in violation of Nev. Rev. Stat.

§ 453.321. In the plea memorandum, he stated that he gave

methamphetamine, a Schedule I controlled substance, to an

undercover police officer and that he faced imprisonment for

a period of one to six years in the Nevada State Department
10 ROSALES-MARTINEZ V. PALMER

of Corrections.3 The plea memorandum noted that the State

had agreed to stipulate that the time served in his case would

be “all the time that I have served,” but also noted that the

state court was not bound by the parties’ agreement and could

impose a different sentence.

In a third court document, the minutes of a court

proceeding based on the stipulation between the parties, the

Washoe County District Court “vacate[d] the convictions” in

Rosales-Martinez’s criminal case “based on the cumulative

errors ground [sic] as alleged in [his habeas] petition.” On

December 2, 2008, the court entered an amended judgment,

finding that Rosales-Martinez was guilty of the crime of

Unlawful Giving Away of aControlled Substance. The court

imposed a punishment of “time already served” and gave

Rosales-Martinez credit for five hundred and one days time

served.4 The Court’s amended order was nunc pro tunc,

5

to

September 28, 2004.

3 Section 453.321(1)(a) provides that “it is unlawful for a person to . . .

give away . . . a controlled . . . substance.” Under Nevada law, a violation

of subsection (1) involving a schedule I controlled substance, such as

methamphetamine, shall be punished by between one and fifteen years’

imprisonment, depending on the defendant’s prior offenses, and a fine of

not more than $20,000. Nev. Rev. Stat. § 453.321(2)(a)–(c). A first time

offender faces imprisonment of between one and six years. Id.

4

If Rosales-Martinez had been incarcerated between September 28,

2004 and December 2, 2008, as he alleges, his time in prison substantially

would have exceeded 501 days.

5

“A nunc pro tunc order is an order that is entered retroactive to a

certain date.” Mack v. Estate of Mack, 206 P.3d 98, 101 n.2 (Nev. 2009).
ROSALES-MARTINEZ V. PALMER 11

Presumably, Rosales-Martinezwasreleased from custody

on the same day as all this occurred, on December 2, 2008, as

he alleges in his complaint.

DISCUSSION

I. The Motion to Supplement the Record and Take

Judicial Notice

We grant Washoe County’s motion to supplement the

record. It is well established that we may take judicial notice

of judicial proceedings in other courts. See Dawson v.

Mahoney, 451 F.3d 550, 551 n.1 (9th Cir. 2006); U.S. ex rel.

Robinson Rancheria Citizens Council v. Borneo, Inc., 971

F.2d 244, 248 (9th Cir. 1992). And, while the motion was

filed at the eleventh hour, the Ninth Circuit Rules do not

place time limits on requests that this Court take judicial

notice of proceedings in other courts. The court documents

provide relevant and material details adding to and clarifying

the allegations of the complaint relating to plaintiff’s release

from jail. Without the court documents, we would be bound

to accept, without question, Rosales-Martinez’s allegation

that the Washoe County District Court had granted his habeas

petition on the basis of its allegations. The court documents

reveal a more complicated and somewhat different account,

suggesting the invalidity of the more serious counts of drug

trafficking, the continuing validity of Rosales-Martinez’s

conviction for the less serious drug crime of Unlawful Giving

Away, and a new sentence giving credit for a portion of the

jail term that he already served.

There is no question that justice requires us to consider

the full events relating to the invalidation of Plaintiff’s

convictions and jail term, and not merely a simplified, and
12 ROSALES-MARTINEZ V. PALMER

perhaps somewhat misleading, conclusory allegation of what

occurred. Courts are instructed, in deciding Rule 12(b)(6)

motions, to read the allegations of a complaint in the context

of the full documents which the allegations purport to

summarize and, where appropriate, to accept the documents,

rather that a characterization of the documents, as the true

account. See Cooper v. Pickett, 137 F.3d 616, 622–23 (9th

Cir. 1997). Thus, we grant Washoe County’s motion to

supplement the record, and we 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 as

untimely because it was not filed within the two years

allowed by Nevada law. Nevada law provides the statute of

limitations because, in the absence of a federal provision for

§ 1983 actions, the analogous state statute of limitations for

personal injury claims applies. The applicable statute of

limitations in Nevada is two years. Perez v. Seevers,

869 F.2d 425, 426 (9th Cir. 1989); Nev. Rev. Stat.

§ 11.190(4)(e).

However, “[f]ederal law determines when a cause of

action accrues and the statute of limitations begins to run for

a § 1983 claim.” Bagley v. CMC Real Estate Corp., 923 F.2d

758, 760 (9th Cir. 1991). In the ordinary case, “[a] federal

claim accrues when the plaintiff knows or has reason to know

of the injury which is the basis of the action.” Id. (internal

quotation marks omitted). Applying that rule, the district

court evaluated Rosales-Martinez’s claims. The complaint

alleges that Rosales-Martinez was injured by the suppression

of evidence and his wrongful conviction. Thus, the district

court ruled that Rosales-Martinez was aware that Defendants
ROSALES-MARTINEZ V. PALMER 13

failed to produce Cortez’s criminal record some time before

his sentence was invalidated on December 2, 2008, and

therefore more than two years before Rosales-Martinez filed

his § 1983 action, on December 1, 2010.

However, as we recently held, a prisoner’s claim for relief

based on an unlawful sentence does not accrue until 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 WL 1424448,

at *3 (9th Cir. April 14, 2014). That decision followed Heck,

512 U.S. 477.6

In Heck, plaintiff Heck, a state prisoner serving time for

voluntary manslaughter, filed a § 1983 action in federal court

seeking damages for various constitutional violations that he

alleged had occurred during his prosecution. Noting “the

hoary principle that civil tort actions are not appropriate

vehicles for challenging the validity of outstanding criminal

judgments,” id. at 486, the Supreme Court dismissed Heck’s

case, holding 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

6 Defendants argue that Rosales-Martinez cannot rely on Heck in this

Court, because he did not cite it before the district court. But, since

Rosales-Martinez argued in the district court that the statute of limitations

did not begin to run until his release from prison he preserved the

argument, even though he did not expressly cite Heck.
14 ROSALES-MARTINEZ V. PALMER

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.

Id. at 486–87.

The Supreme Court explained that under its ruling, a

§ 1983 action challenging a conviction or sentence does not

“exist[]” until the conviction or sentence is invalidated. Id. at

489. Since such an action cannot be pursued until the

underlying conviction or sentence is invalidated, “a § 1983

cause of action for damages attributable to an

unconstitutional conviction or sentence cannot accrue until

the conviction or sentence has been invalidated.” Id. at

489–90. Thus, the Heck rule for deferred accrual “delays

what otherwise would be the accrual date of a tort action until

the setting aside of an extant conviction which success in that

tort action would impugn.” Wallace v. Kato, 549 U.S. 384,

393 (2007) (emphasis omitted).

To determine whether the Heck rule applies, “the district

court must consider whether a judgment in favor of the

plaintiff would necessarily imply the invalidity of his

conviction or sentence.” Heck, 512 U.S. at 487 (emphasis

added); see also Weilburg v. Shapiro, 488 F.3d 1202,

1206–07 (9th Cir. 2001) (finding Heck inapplicable to a

§ 1983 action based on an alleged violation of extradition

rights, because the “allegations, if proven, would not

invalidate [plaintiff’s] incarceration”). If a judgment in favor

of the plaintiff would necessarily imply the invalidity of a

conviction or sentence, then the cause of action does not
ROSALES-MARTINEZ V. PALMER 15

accrue until that conviction or sentence has been invalidated. 

Heck, 512 U.S. at 487; Wallace, 549 U.S. at 393. This

requires an inquiry into what a plaintiff would need to prove

in order to succeed on his theory of the case, not an inquiry

into whether a plaintiff would be able to succeed on the

merits. See Owens v. White, 342 F.2d 817, 819 (9th Cir.

1965) (“Whether [a] plaintiff’s claim has accrued is a

question of law . . . [that] does not reach the merits of the

claim but instead involves the very existence of the claim

itself.”).

Rosales-Martinez seeks to recover damages in this civil

case because of an unconstitutionally procured conviction in

his criminal case. Rosales-Martinez claims that his

conviction and imprisonment were invalid because the

Defendants failed to disclose in his criminal case the criminal

history of Cortez, the main witness against him, thus violating

their constitutional obligations and Rosales-Martinez’s right

to a fair trial. If Rosales-Martinez were to recover a

judgment 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 Nevada court vacated those

convictions on December 2, 2008. Since Rosales-Martinez

commenced his lawsuit on December 1, 2010, less than two

years after December 2, 2008, his claim was timely and the

district court erred in dismissing it as time-barred. We

discuss the remedy for that error later in this decision.

III. Claims Against Palmer

Defendant police officer Colby Palmer adds an additional

argument for dismissing the complaint against him. Palmer

argues that the district court should have dismissed RosalesMartinez’s claims against him, even if timely, because the
16 ROSALES-MARTINEZ V. PALMER

complaint did not allege that Palmer acted with deliberate

indifference or reckless disregard.7 As Palmer argues, “[a]

§ 1983 plaintiff must show that police officers acted with

deliberate indifference to or reckless disregard for an

accused’s rights or for the truth in withholding evidence from

prosecutors.” Tennison v. City and County of San Francisco,

570 F.3d 1078, 1089 (9th Cir. 2009).

We reject Palmer’s argument. Rosales-Martinez’s

complaint alleges that Palmer knew or should have known

about Cortez’s criminal history and that Palmer “failed or

refused” to disclose that history when ordered to do so by the

County Court. Particularly in the context of a pro se

complaint, the allegation of willful conduct is sufficient.

IV. Claims Against Washoe County and the City of

Reno

Rosales-Martinez concedes that his complaint, as written,

does not plead sufficient facts to state claims for municipal

liability. Accordingly, his claims against Washoe County and

the City of Reno are dismissed without prejudice. On

remand, Rosales-Martinez should be given an opportunity to

file an amended complaint against 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 Even though the district court did not address this argument, we

consider it in the first instance because Palmer raised the argument before

the district court and “we may sustain the dismissal for reasons not

addressed by the court below.” Perugini v. Safeway Stores, Inc., 935 F.2d

1083, 1086 (9th Cir. 1991).
ROSALES-MARTINEZ V. PALMER 17

V. Considering the Judicially Noted Facts of Record

on Remand

The court records relating to the invalidation of RosalesMartinez’s conviction and his release from custody present a

more complicated picture of the events than the simple

allegation of his complaint, that “[u]pon review of the

petition for habeas corpus,” the state court ordered his

release. When reading a complaint that incorporates or

summarizes documents, we may also consider the documents

thus incorporated or summarized. See Cooper, 137 F.3d at

622–23.

On December 2, 2008, Rosales-Martinez agreed to plead

guilty on the understanding that the prosecutor would

recommend a sentence of “time served,” which could be “all

the time I have served,” but accepted that the court “could

impose a different sentence.” The sentencing judge gave

Rosales-Martinez credit for 501 days “time served,” nunc pro

tunc to September 28, 2004, the date of Rosales-Martinez’s

original twenty year sentence. Immediately after this

agreement, plea, and sentence, Rosales-Martinez was freed.

The fact that Rosales-Martinez was reconvicted following

the vacation of his initial convictions, means that he still has

an outstanding conviction. This outstanding conviction raises

the question whether Rosales-Martinez’s § 1983 action is

barred by Heck’s holding that “[a] claim for damages [based]

on a conviction or sentence that has not been so invalidated

is not cognizable.” See Heck, 512 U.S. at 487.

We held recently that a successive conviction of guilt

following a re-trial did not bar a § 1983 claim. Jackson, 2014

WL 1424448, at *3. In that case, the prosecutor had offered
18 ROSALES-MARTINEZ V. PALMER

Jackson’s admission as proof of guilt. However, the

admission was obtained unconstitutionally, without advising

Jackson of his right to remain silent, in violation of Miranda

v. Arizona, 384 U.S. 436 (1966). The conviction was held

invalid. Jackson, who remained in prison having been

convicted of other crimes, was re-tried, convicted, and

sentenced to twenty-six years in prison.

Meanwhile, Jackson filed a § 1983 lawsuit, seeking

damages for his initial conviction. The district court

dismissed the suit, holding that under Heck v. Humphrey, his

claim for damages was inconsistent with the judgment of

conviction following his re-trial. The panel reversed, holding

that since the conviction initially obtained was invalidated, a

§ 1983 lawsuit would not be inconsistent, even though the

later trial produced a like judgment of conviction. See

Jackson, 2014 WL 1424448 at *3 (noting that the § 1983

action did “not have any bearing on” the second conviction).

The panel ruled that while Jackson could state a claim, he

was not entitled to any compensatory damages for his time in

prison, since Jackson “was not imprisoned for any additional

time as a result of his first, illegal conviction.” Id. at *4. 

However, Jackson could seek punitive and nominal damages. 

Id. The panel remanded the case to the district court for

further proceedings 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 York, — F.3d —,

No. 12-1011, 2014 WL 182313 (2d Cir. Jan. 16, 2014) (en

banc). There, the defendant had been convicted in the New

York state courts of attempted murder, robbery and assault of

a driver of a taxicab, and sentenced to a term of custody of 10

to 20 years. After serving six years, the state court
ROSALES-MARTINEZ V. PALMER 19

invalidated the conviction because of the prosecutor’s failure

to disclose material evidence relevant to the credibility of the

main witness against defendant, in violation of his

constitutional right to a fair trial under Brady, 373 U.S. 83,

and Giglio, 405 U.S. 150. Defendant then entered into a plea

agreement with the prosecutor pursuant to which defendant

pleaded guilty of attempted robbery, agreed to a sentence of

one year of the time he served, and immediately was released. 

He then filed a § 1983 lawsuit. The district court dismissed

his claim as inconsistent with Heck v. Humphrey. The

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

court for further proceedings. The en banc court wrote six

opinions. Ten of the judges favored a remand to sort out the

scope of consistency and inconsistency with Heck; six

seemed to favor dismissal of the case.

In Poventud, the defendant had contested his guilt by

presenting an alibi. The dissenting judges argued that his

plea of guilty to attempted robbery was inconsistent with any

notion of alibi as a defense, and a § 1983 lawsuit, if allowed,

would be inconsistent with the judgment of conviction

ultimately obtained, and thus also be inconsistent with Heck

v. Humphrey. See Poventud, 2014 WL 182313 (Jacobs, J.,

dissenting); id. (Livingston, J., dissenting). Judge Lynch,

concurring with the majority, expressed the view that

defendant’s agreement to plead guilty to a lesser offense and

to a time-served sentence was the practical price for

immediate freedom, and that this realism should prevail over

notions of logical consistency. The rest of the majority took

the view that there was no inconsistency between the

defendant’s § 1983 claim based on the invalidation of the

conviction for attempted murder and his plea, after that

invalidation, to attempted robbery of the taxicab driver. The
20 ROSALES-MARTINEZ V. PALMER

en banc court left the issue of damages to the district court to

sort out. See Poventud, 2014 WL 182313, at *11 & n.8.

The viability and scope of Rosales-Martinez’s § 1983

claim, in relation to Heck v. Humphrey and pursuant to

Jackson should be evaluated by the district judge on remand. 

In that connection, Rosales-Martinez’s December 2, 2008

guilty plea to one of the original four counts and the credit he

received for 501 days of prison time for that sentence

suggests a continuous validity to a portion of his original

conviction and sentence, and a possible inconsistency

between it and a § 1983 action, which may pose a distinction

with Jackson. In Jackson, the entire initial conviction was

held invalid; thus, the Ninth Circuit held, the § 1983 case

could proceed without violating the rule of Heck v.

Humphrey. In our case, Rosales-Martinez pleaded guilty to

one of the four counts of his original conviction, with the

other three being held invalid. On remand, the district judge

might consider if this and other differences between the case

before us and the decision in Jackson are significant. For

example, the district judge may wish to consider the extent to

which Rosales-Martinez can seek compensatory damages

based on the convictions that were vacated as invalid, and the

time he served on the count that remained valid, for which he

was given credit for 501 days of time served. The district

judge may also wish to consider whether any of the facts

Rosales-Martinez allocuted to in his December 2, 2008 plea

are inconsistent with his allegations in this § 1983 action. 

These questions are illustrations; the district judge is free to

pursue all relevant facts and inquiries.

Although we took judicial notice of the court records

relating to Rosales-Martinez, Rosales-Martinez has not had

an opportunity to present his views with regard to these
ROSALES-MARTINEZ V. PALMER 21

records. A court of appeals should not rule on the significance

of Rosales-Martinez’s plea in the absence of a complete

record and the comments of both sides, plaintiff and

defendants, and without the benefit of the district court’s

analysis. Accordingly, we remand this case to the district

court so that it may consider such a full record.

CONCLUSION

Rosales-Martinez’s § 1983 claims for wrongful

conviction did not accrue until his convictions were vacated. 

Accordingly, the district court erred in dismissing his action

as untimely. On remand, the district court should consider if

and to what extent Rosales-Martinez’s plea to the crime of

Unlawful Giving Away of Controlled Substances affects his

§ 1983 action.

REVERSED and REMANDED.