Keith Edwards, Edwards, Hale Sturman, Bridgette Branigan, Deputy Attorney General, Peter M. Angulo, Rawlings, Olson, Cannon Gormley Desruisseaux, Las Vegas, Nevada, for the defendants-appellees.

Before: Joseph T. Sneed, Harlington Wood, Jr., and Diarmuid F. O'Scannlain, Circuit Judges.

OPINION

SNEED, Circuit Judge:

Plaintiffs Michael C. Delew and H. Roy and Vickie Mayberry ("the Delews") appeal the district court's dismissal of their suit under 42 U.S.C. § 1983. We must decide whether the Delews' complaint states a claim for relief under section 1983. We conclude that it does. We therefore remand with instructions consistent with this opinion.

Michael C. Delew is the deceased's husband. H. Roy and Vickie Mayberry are the deceased's parents.

I. [3] BACKGROUND

Erin Rae Delew died when her bicycle was struck by a vehicle driven by Janet Kathleen Wagner. An investigation undertaken by the Las Vegas Metropolitan Police Department ("LVMPD") and Nevada Highway Patrol ("NHP") ultimately found that Janet Kathleen Wagner was not the cause of Erin Rae Delew's death. The Delews are not convinced. They allege that Wagner, whose husband is an LVMPD officer, and certain named LVMPD and NHP officers, covered-up and conspired to cover-up the true facts surrounding Erin Rae Delew's death in violation of the Delews' constitutional rights.

In their complaint, the Delews allege that Janet Kathleen Wagner operated her vehicle negligently by driving (1) 30% in excess of the maximum posted speed limit, (2) while under the influence of alcohol, and (3) in violation of the deceased's right-of-way. They further allege that the LVMPD and NHP officers allowed Wagner to leave the scene of the accident during the initial investigation.

The Delews further allege that after the LVMPD and NHP officers learned the true facts of Erin Rae Delew's death, they successfully covered-up the true facts by: (1) deliberately refraining from performing a field sobriety test on Wagner; (2) deliberately refraining from performing a chemical blood alcohol test on Wagner within two hours of the fatal accident; (3) deliberately failing to preserve physical evidence such as skid marks and relevant debris; and (4) allowing Wagner to leave the scene of the accident. The defendants flatly deny the allegations.

On November 10, 1994, the Delews filed a wrongful death action against Janet Kathleen Wagner in state court. We are informed that trial is set for February, 1999. After evidence of a cover-up surfaced during the discovery phase, the Delews sought leave to amend their wrongful death action by adding a section 1983 claim. The state court denied the motion and directed the Delews to file a separate section 1983 complaint. While we question the soundness of that decision, we have no power to correct it and must accept the unique posture the Delews' claims appear before us.

On September 26, 1996, the Delews filed their section 1983 action in state court. The defendants removed the case to the district court pursuant to 28 U.S.C. § 1441(a), (b). Immediately thereafter, Janet Kathleen Wagner independently moved to dismiss under Fed.R.Civ.P. 12(b)(6). Despite the failure of the remaining defendants to join the motion, the district court dismissed as to all defendants on the ground that the Delews' allegations failed to provide an independent basis for relief under section 1983. The district court dismissed the Delews' conspiracy claim on the ground that there was no evidence or allegation of evidence that the alleged conspirators infringed upon any cognizable protected right. In the alternative, the court dismissed the entire complaint on the ground that the Delews had impermissibly split their causes of action by bringing a state wrongful death action and a separate action under section 1983. The Delews appeal these rulings.

II. [9] JURISDICTION AND STANDARD OF REVIEW

This action fell within the district court's original jurisdiction. See 28 U.S.C. § 1331, 1343. The judgment of the district court granting dismissal is an appealable final order. See 28 U.S.C. § 1291.

We review the district court's order of dismissal under Rule 12(b)(6) de novo. See Stone v. Travelers Corp., 58 F.3d 434, 436-37 (9th Cir. 1995). We will affirm the district court's order of dismissal only if it appears "beyond doubt" that the Delews can prove no set of facts that would entitle them to relief. See Mountain High Knitting, Inc. v. Reno, 51 F.3d 216, 218 (9th Cir. 1995).

III. [12] DISCUSSION

The Delews' primary contention on appeal is that the district court erred by dismissing their section 1983 complaint on the ground that they failed to state an independent basis for relief under 42 U.S.C. § 1983.

In order to resolve this issue, we must determine whether the Delews' complaint alleged facts showing a deprivation of a right, privilege or immunity secured by the Constitution or federal law, by one acting under color of state law. See Lopez v. Dep't of Health Servs., 939 F.2d 881, 883 (9th Cir. 1991). Because the district court dismissed under Rule 12(b)(6), we must accept all allegations of material fact as true and construe them in the light most favorable to the Delews. See Argabright v. United States, 35 F.3d 472, 474 (9th Cir. 1994).

The Delews have indeed alleged a constitutional violation, namely, that the defendants violated the Delews' right of meaningful access to the courts by covering up the true facts surrounding Erin Rae Delew's death. The Supreme Court held long ago that the right of access to the courts is a fundamental right protected by the Constitution. See Chambers v. Baltimore Ohio R.R. Co., 207 U.S. 142, 148 (1907). More recently, the Sixth Circuit held that the Constitution guarantees plaintiffs the right of meaningful access to the courts, the denial of which is established where a party engages in prefiling actions which effectively covers-up evidence and actually renders any state court remedies ineffective. See Swekel v. City of River Rouge, 119 F.3d 1259, 1262 (6th Cir. 1997), cert. denied, 118 S. Ct. 690 (1998). That court stressed that a "plaintiff cannot merely guess that a state court remedy will be ineffective because of a defendant's actions." Id. at 1264.

Applying the Sixth Circuit's reasoning in Swekel to the Delews' case, we believe the Delews' complaint alleges a cognizable claim under section 1983. To prevail on their claim, the Delews must demonstrate that the defendants' cover-up violated their right of access to the courts by rendering "any available state court remedy ineffective." See id. However, because the Delews' wrongful death action remains pending in state court, it is impossible to determine whether this has in fact occurred.

We reject Wagner's argument that the Delews are precluded from alleging a constitutional violation for conduct occurring after the death of Erin Rae Delew. The victims of the cover-up are the decedent's survivors, not the decedent. See Gibson v. City of Chicago, 910 F.2d 1510, 1523 (7th Cir. 1990).

The district court additionally erred by holding that the Delews' conspiracy cover-up claim failed to state a claim for relief. In support of their conspiracy claim, the Delews allege that Janet Kathleen Wagner left the accident scene during the investigation and that the LVMPD and NHP officers permitted Wagner to do so. Construing these facts in a light most favorable to the Delews, it is reasonable to infer an understanding between Wagner and the officers to cover-up the true facts of Erin Rae Delew's death and thereby deprive the Delews of their right of access to the courts. See Adickes v. S.H. Kress Co., 398 U.S. 144, 152 (1970) (in order to satisfy color of state law requirement under civil conspiracy theory, plaintiff need only have shown that there was an understanding between civilian and officers to deprive plaintiff of her rights).

We conclude that the district court should have recognized the cognizability of the Delews' claims and dismissed their complaint without prejudice. By disposing of the case in this fashion, the Delews would have the opportunity to re-file their section 1983 action if in fact the defendants' alleged cover-up actually rendered all state court remedies ineffective. We therefore remand with instructions to dismiss the Delews' section 1983 complaint without prejudice.

We further conclude that the district court erred in its ruling that the Delews split their causes of action by bringing a state wrongful death action and a separate action under 42 U.S.C. § 1983. The Nevada state court effectively split the Delews' causes of action by denying their motion to join the two actions in one proceeding. The rule concerning claim splitting is not applicable here. See Smith v. Hutchins, 93 Nev. 431, 432-33 (1977).

REVERSED and REMANDED.

Summaries of

Delew v. Wagner

United States Court of Appeals, Ninth Circuit

May 11, 1998

143 F.3d 1219 (9th Cir. 1998)

holding that when a plaintiff alleges a cognizable but unripe access-to-courts claim, the proper course of action is to dismiss without prejudice

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holding that a § 1983 claim can be based on police officers' conspiring to cover up evidence that is unknown to the plaintiffs, if such cover-up deprives the plaintiff of meaningful access to the courts

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holding that plaintiffs stated a claim under § 1983 where they alleged a constitutional violation of their right to meaningful access to the courts based on an alleged conspiracy to cover up the details of decedent's death

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finding that a cognizable claim for denial access to the courts could be premised on police officer's cover-up of evidence that inhibited state court wrongful death action

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finding that, although the claim was not ripe, allegations that officers deliberately failed to perform a sobriety test, failed to perform a blood alcohol test, failed to preserve physical evidence, and allowed a suspect to leave the scene of an accident stated a claim for denial of access to the courts

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deciding the rule concerning claim splitting did not apply when the state court effectively split the causes of action by denying the plaintiffs' motion to join the two actions in one proceeding

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approving of and applying Swekel's analysis to a cover-up claim

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recognizing that the right of access to the courts is a fundamental right and that a § 1983 claim may be premised on conduct rendering "any available state court remedy ineffective"

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following the Sixth Circuit and stating that "the Constitution guarantees plaintiffs the right of meaningful access to the courts, the denial of which is established where a party engages in pre-filing actions which effectively cover-up evidence and actually render any state court remedies ineffective"

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dismissing denial of access claim without prejudice because plaintiff was still pursuing underlying claim

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instructing district court to dismiss without prejudice plaintiffs' § 1983 access to courts claim because their wrongful death action remained pending in state court

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dismissing without prejudice a § 1983 action against police officers who allegedly covered up evidence to protect the wife of another police officer who killed a bicyclist in a traffic accident, where the victim's family brought a wrongful death action in state court against the driver, reasoning that, absent the final disposition of the state court suit, the court could not determine whether "the defendants' cover-up violated [the plaintiffs'] right of access to the courts by rendering any available state court remedy ineffective."

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noting "right of access to the courts is a fundamental right protected by the Constitution"

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In Delew, a state court refused to allow plaintiffs to amend a wrongful death action to add a newly discovered Section 1983 claim, insisting instead that plaintiffs file a separate lawsuit for the 1983 claim.

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requiring that party bring an action in state court and fail because of official misconduct before having a claim under § 1983

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In Delew, although the Ninth Circuit found that allegations that police officers' cover-up of facts surrounding a death caused by another officer could violate plaintiff's access to state court, it was impossible to determine whether the officers' alleged cover-up violated appellants right of court access by rendering any available state court remedy ineffective because the state court case was still pending.

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In Delew it was reasonable to infer an understanding between the private-citizen defendant and police officers because the defendant was the wife of a local police officer, and the police officers were at the scene of the accident.

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In Delew the plaintiffs alleged that a private citizen and local police officials "conspired to cover-up the true facts surrounding Erin Rae Delew's death in violation of the Delews' constitutional rights."

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In Delew, the Ninth Circuit found that the plaintiffs had alleged a cognizable claim for denial of access to the courts.

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In Delew v. Wagner, 143 F.3d 1219, 1222-23 (9th Cir. 1998), the Ninth Circuit reversed the district court's decision to dismiss the plaintiffs' access-to-courts claim.

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In Delew, plaintiffs had alleged that Wagner, who was married to a police officer, left the accident during the investigation and that the officers permitted her to do so.

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Delew v. Wagner

Summary

Opinion

OPINION

I. [3] BACKGROUND

II. [9] JURISDICTION AND STANDARD OF REVIEW

III. [12] DISCUSSION

Delew v. Wagner

Delew v. Wagner

Case Details

Citations

Citing Cases

Delew v. Wagner

Summary

Opinion

OPINION

I. [3] BACKGROUND

II. [9] JURISDICTION AND STANDARD OF REVIEW

III. [12] DISCUSSION

Delew v. Wagner

Delew v. Wagner

Case Details

CitationsCopy Citation

Citing Cases

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