govinfo:USCOURTS-azd-4_15-cv-00152-19

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WO 
 
 
 
 
IN THE UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF ARIZONA 
 
 
Nina Alley, 
 
Plaintiff, 
 
v. 
 
County of Pima, et al., 
 
Defendants. 
No. CV-15-00152-TUC-RM 
 
ORDER 
 
 
 
 Pending before the Court is Defendants’ Motion for Reconsideration re: 
Expungement Claim. (Doc. 1078.)1 The Court ordered Plaintiff to respond (Doc. 1089), 
and Plaintiff filed a Response on April 16, 2024 (Doc. 1102). On the same date, Plaintiff 
also filed a Memorandum re: Equitable Estoppel. (Doc. 1109.)2 
I. Background 
 On December 19 -20, 1970, a fire killed 28 people at the Pioneer Hotel in 
downtown Tucson, Arizona. (Doc. 343 at ¶ 56; Doc. 365 at ¶ 56; Doc. 374 at ¶ 56.) On 
March 21, 1972, a jury convict ed former Plaintiff Louis Taylor 3 of 28 counts of murder 
arising from the deaths. (Doc. 340 -9 at 10-12.) Taylor was sentenced to life 
imprisonment. (Doc. 340 -9 at 36 -37.) In 2012, Taylor filed a Petition for Post -
 
1 Other pending motions will be resolved separately. 
2 Plaintiff moved to file the Memorandum under seal. (Doc. 1104.) The Court directed 
the Clerk to file the Memorandum under seal but, due to the strong public interest in 
access to the document, also ordered Plaintiff to publicly file a redacted version of the 
Memorandum. (Doc. 1108.) 
3 Taylor’s Guardian and Conservator, Nina Alley, has been substituted in place of Taylor 
as the named plaintiff i n this action. (Doc. 624.) The Court uses the term “Plaintiff” 
herein to refer interchangeably to Taylor. 

 
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Conviction Relief, and the Pima County Attorney’s Office began a review of his case. 
(Doc. 348-3; Doc. 341 -4 at 2 -15; see also Doc. 335 at ¶¶ 624, 631, 642; Doc. 367 at ¶¶ 
624, 631, 642.) Following the review, the Pima County Attorney offered Taylor a plea 
by which Taylor received a time -served sentence and was released from prison in 
exchange for pleading no -contest to the original 28 counts of murder. (Doc. 348 -10; 
Doc. 348 -11.) After his release, Plaintiff filed the above -entitled civil action, raising 
claims under 42 U.S.C. § 1983. (Doc. 1.) 
 On March 16, 2017, this Court ruled that —due to his outstanding 2013 
convictions—Plaintiff is barred by Heck v. Humphrey , 512 U.S. 477 (1994), from 
premising his § 1983 claims “on the alleged constitutional injuries of being wrongfully 
charged, convicted, and imprisoned” and that Plaintiff is precluded from seeking 
incarceration-based compensatory damages. (Doc. 63 at 10 -11, 19-20.) On interlocutory 
appeal, the Ninth Circuit affirmed this Court’s finding that Heck bars Plaintiff from 
seeking incarceration-related damages, holding that “[a] plaintiff in a § 1983 action may 
not recover incarceration -related damages for any pe riod of incarceration supported by a 
valid, unchallenged conviction and sentence.” Taylor v. Cnty. of Pima, 913 F.3d 930, 
936 (9th Cir. 2019). 
 Plaintiff then moved for leave to amend his operative complaint to include a 
request for a declaratory judgment expunging his 2013 convictions “as unconstitutional, 
and thus invalid” (hereafter, “expungement claim”). (Doc. 103; see also Doc. 169 at 26.) 
The Court granted Plaintiff leave to file the now -operative Third Amended Complaint, 
determining that “Plaintiff’s factual allegations concerning his 2013 post -conviction 
proceedings are sufficient to raise an inference that this case may be one of the ‘unusual 
or extreme cases’ in which expungement” is appropriate under Shipp v. Todd , 568 F.2d 
133 (9th Cir. 1978) (per curiam) . (Doc. 167 at 8 .) On January 19, 2024, this Court 
denied summary judgment on Plaintiff’s expungement claim , finding that expungement 
may be appropriate under Shipp if a jury finds that the prosecution in 2013 leveraged 
Taylor’s then -existing incarceration to obtain a no -contest plea to charges that it knew 

 
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could not be proven beyond a reasonable doubt at a retrial, for purposes of creating a 
Heck bar to civil liability. (Doc. 869 at 27 -28.) Defendants filed a Petition f or Writ of 
Mandamus, and on April 8, 2024, the Ninth Circuit Court of Appeals issued a 2 -1 
decision denying mandamus relief based on a weighing of the totality of the factors set 
forth in Bauman v. United States District Court , 557 F.2d 650, 656 -672 (9th C ir. 1977). 
(Doc. 1078-2.) 
 After the Ninth Circuit’s denial of the Petition for Writ of Mandamus, Defendants 
filed the pending Motion for Reconsideration. (Doc. 1078.) 
II. Motion for Reconsideration re: Expungement Claim 
 Defendants argue that this Court sho uld reconsider its ruling that it has the 
authority to expunge Taylor’s 2013 convictions pursuant to Shipp. (Doc. 1078.) 
Defendants argue that reconsideration is appropriate for the reasons stated by Judge 
Patrick J. Bumatay in his dissent of the Ninth C ircuit’s denial of Defendants’ Petition for 
Writ of Mandamus, and in light of concessions and statements made by Taylor’s counsel 
at oral argument before the Ninth Circuit. ( Id. at 4-6.) Defendants also urge the Court to 
consider that an amicus brief filed in support of the denial of Defendants’ Petition for 
Writ of Mandamus failed to cite a single 42 U.S.C. § 1983 case that has expunged an 
outstanding state-court conviction. (Id. at 6.) 
 In response, Plaintiff argues that the Ninth Circuit’s denial of mandamus relief 
does not warrant this Court’s reconsideration of its Shipp rulings. (Doc. 1102 at 3-4, 10.) 
Plaintiff asserts that this Court has the authority to expunge Taylor’s 2013 convictions 
and that, even if Shipp allows only for the expungement of criminal records, dismissal of 
Plaintiff’s expungement claim would not be appropriate because Plaintiff could amend 
the claim to seek the alternative relief of expunging his criminal records. ( Id. at 4 -6.) 
Plaintiff also a rgues that if this Court has the power to expunge the records of his 2013 
convictions, “it can certainly order” that evidence of the conviction s be removed “in the 
case before it ,” and that doing so “would be particularly appropriate here,” because 
“Taylor served 42 years in prison due to the vacated 1972 conviction[s], not the 2013 

 
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plea agreement.” (Id. at 9.) Plaintiff urges the Court to analogize his 2013 plea 
agreement to a “release -dismissal” agreement —whereby vacation of charges is coupled 
with a se ttlement agreement not to sue —and to hold under Newton v. Rumery , 480 U.S. 
386 (1987), that the agreement is unenforceable as violating public policy. ( Id. at 7-8.) 
Plaintiff also argues in his Response and his concurrently submitted Memorandum Re: 
Equitable Estoppel that the Court should equitably estop Defendants from asserting the 
Heck bar in this case, which would then render it unnecessary for the Court to consider 
expungement of Taylor’s 2013 convictions. (Doc. 1102 at 9; Doc. 1109.) 
A. Legal Standard 
 “The Court will ordinarily deny a motion for reconsideration of an Order absent a 
showing of manifest error or a showing of new facts or legal authority that could not have 
been brought to its attention earlier with reasonable diligence.” LRCiv 7.2(g)(1). 
B. Discussion4 
In Shipp, the Ninth Circuit remanded for the district court to determine whether to 
expunge the state -court criminal records of a 42 U.S.C. § 1983 plaintiff where “the 
maintenance of [the] criminal records continue[d] to operate to [the plaintiff’s] 
detriment” after the plaintiff had served the imposed sentence. 568 F.2d at 133-34. The 
Court noted that federal courts “have inherent power to expunge criminal records when 
necessary to preserve basic legal rights.” Id. (internal quotation marks omitted; emphasis 
added). However, the Court emphasized that “[t]he power to order expungement of a 
state arrest record is a narrow one and should be reserved for unusual or extreme cases.” 
Id. at 134 n.1. 
 Relying on Shipp, the Ninth Circuit has continued to recognize federal courts’ 
inherent equitable power to order the expungement of criminal records in § 1983 actions 
 
4 “Absent good cause shown, any motion for reconsideration shall be filed no later than 
fourteen (14) days after the date of the filing of the Order that is the subject of the 
motion.” LRCiv 7.2(g)(2). T he Court finds that good cause exists for Defendants’ 
failure to file the pending Motion for Reconsideration within fourteen days of the 
issuance of this Court’s summary judgment Order. Defenda nts timely filed a Petition for 
Writ of Mandamus challenging the summary judgment ruling on Plaintiff’s expungement 
claim and promptly filed the pending Motion for Reconsideration after the Ninth 
Circuit’s denial of mandamus relief. 

 
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where extraordinary circumstance s exist and the plaintiff has no adequate state-law 
remedy. See, e.g., Maurer v. Los Angeles Cnty. Sheriff’s Dep’t , 691 F.2d 434, 437 (9th 
Cir. 1982); United States v. Smith , 940 F.2d 395, 396 (9th Cir. 1991) (per curiam). 
However, the Ninth Circuit has made clear that “a person convicted of a crime” cannot 
“collaterally attack her conviction by moving to expunge the records of her conviction.” 
United States v. Crowell , 374 F.3d 790, 791 (9th Cir. 2004). The Ninth Circuit has 
explained that expunging a conviction and vacating a conviction “denote ver y different 
actions.” Id. at 792. “When a court vacates a conviction, it sets aside or nullifies the 
conviction and its attendant legal disabilities.” Id. In contrast, expungement results in 
the destruction or sealing of “the records of the fact of the defendant’s conviction” but 
does not , without more, “alter the legality” of the conviction or “signify that the 
defendant was innocent of the crime.” Id. (internal quotation marks omitted). 
 In allowing Plaintiff to add a claim for declaratory relief expunging his 2013 
convictions, this Court determined that Plaintiff did not have an adequate state -law 
remedy. (Doc. 167 at 8.) Due to changed circumstances, the Court’s analysis on th at 
issue is no longer valid. Plaintiff is currently seeking post -conviction relief in state court. 
He can no longer plausibly argue —and he does not argue in his Response to Defendants’ 
Motion for Reconsideration—that he lacks a n adequate state-law remedy for challenging 
his 2013 convictions. See Maurer, 691 F.2d at 437. 
 Furthermore, the Supreme Court and the Ninth Circuit sitting en banc have made 
clear that § 1983 actions are not appropriate vehicles for challenging the validity of 
outstanding criminal judgments. See Heck, 512 U.S. at 486; Nettles v. Grounds, 830 F.3d 
922, 933 (9th Cir. 2016) (en banc) . Accordingly, Plaintiff cannot seek in this action a 
declaratory judgment vacating his 2013 convictions. And allowing Plaintiff to instead 
seek expung ement of the records of the 2013 convictions would be futile, because the 
Ninth Circuit has made clear that a person who “wishes to expunge the records of [his] 
conviction” must first obtain a judgment, via recognized post -conviction remedies, that 
the conviction was unlawful. Crowell, 374 F.3d at 796. And even if this Court could 

 
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expunge the records of Taylor’s outstanding 2013 convictions, that relief would not lift 
the Heck bar that exists in this case , as expunging records of the convictions would “no t 
alter the legality” of the convictions. Crowell, 374 F.3d at 792. Plaintiff’s reliance in his 
Response on Newton v. Rumery, 480 U.S. 386 (1987), is misplaced because that case did 
not involve a Heck bar. And to the extent Plaintiff argues in his Response that his 
incarceration resulted from his vacated 1972 convictions rather than his 2013 convictions, 
that argument is forec losed by t he Ninth Circuit ’s ruling on interlocutory appeal in this 
case that “Taylor’s valid 2013 conviction and sentence are the sole legal causes of his 
incarceration,” and he therefore “cannot recover damages for wrongful incarceration.” 
Taylor, 913 F.3d at 936. 
 Accordingly, the Court finds it appropriate to reconsider its denial of summary 
judgment on Plaintiff’s expungement claim. 
III. Memorandum re: Equitable Estoppel 
 On April 16, 2024, Plaintiff filed a Memorandum re: Equitable Estoppel . (Doc. 
1109.) In the memorandum, Plaintiff argues that Heck is an affirmative defense that may 
be waived or forfeited, and that this Court should equitably estop Defendants from 
asserting a Heck bar in this case. (Id.) Plaintiff contends that applying equitable e stoppel 
is appropriate here because Pima County Attorney Laura Conover would have moved to 
dismiss his 2013 convictions if not for misconduct by Pima County in 2022 , and 
therefore a Heck bar would not exist in this case if not for Pima County’s misconduct. 
(Id.) Plaintiff indicates he may move to amend his Complaint to assert equitable 
estoppel. (Id. at 1-2.) 
 The Court will construe Plaintiff’s Memorandum as a Motion and will order 
Defendants to respond. 
 IT IS ORDERED that Defendants’ Motion for Reconsideration re: Expungement 
Claim (Doc. 1078) is granted. Summary judgment is granted in Defendants’ favor on 
the claim asserted in Plaintiff’s Third Amended Complaint seeking declaratory relief 
expunging Louis Taylor’s outstanding 2013 convictions. 

 
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 IT IS FURTHER ORDERED that the Court construes Plaintiff’s Memorandum 
re: Equitable Estoppel as a Motion. Within fourteen (14) days of the date this Order is 
filed, Defendants may file a response to the Memorandum re: Equita ble Estoppel. 
Plaintiff may file a reply within seven (7) days of service of Defendants’ response. 
 Dated this 18th day of April, 2024. 
 
 

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