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denying defendants' motion to dismiss on the grounds that the sheriff, when knowingly giving false information to the Housing Authority with the intent of initiating a nuisance lawsuit, did not act as a state officer
Summary of this case from Bishop Paiute Tribe v. County of InyoOpinion
No. C 00-2961 CRB
July 19, 2001
MEMORANDUM AND ORDER
This civil rights action arises from a stale court preliminary injunction enjoining plaintiffs from entering a Mario City, California public housing facility and the surrounding streets. Now before the Court are defendants' motions to dismiss for failure to state a claim. Having carefully considering the papers filed by the parties, and having had the benefit of oral argument, the Court GRANTS the motions to dismiss in part and DENIES the motions in part.
BACKGROUND
On March 3, 1998, the Housing Authority of Marin filed a civil complaint in the Superior Court for the County of Marin for injunctive relief against plaintiffs Tiyon Ford, Daniel Grayson, Raythel Scott and Earl Wallace. The complaint alleged that the plaintiffs constituted a public nuisance within the meaning of section 3479 of the Civil Code.
Defendants Deputy Sheriffs Robert Crowley and Howard Horwitz, along with defendant Lt. Rick Russell, were sheriffs assumed to the Marin City station. They each submitted declarations in support of the Housing Authority's request for preliminary injunctive relief. The declarations alleged that the four plaintiffs had engaged in acts of violence and criminal conduct on Housing Authority property. Among other things, the sheriffs submitted that plaintiff Ford had been arrested on public housing property for "battery, threats of violence, public intoxication, possession of marijuana, and three times for driving with a suspended license. First Amended Complaint ¶ 33. They also alleged that plaintiff' Scott was "apprehended carrying a concealed, stolen, fully loaded handgun. Id. ¶ 53. Together, plaintiffs were reported to be instigators of [a] riot." Id. ¶ 33.
Plaintiffs appeared in court on March 22, 1998 without counsel. On that date the state trial court issued a preliminary injunction. Plaintiffs subsequently retained counsel and filed a motion to dissolve the preliminary injunction and for an evidentiary hearing. The court denied the motion. In February 1999, the parties appeared for trial based solely on affidavits. During this "paper trial" the parties agreed that a trial with live witnesses was necessary.
Trial commenced on March 31, 1999 and lasted for six weeks. On August 12, 1999, the court ruled that the Housing Authority had not met its burden of proving that plaintiffs were a nuisance and dissolved the preliminary injunction. Both the plaintiffs and the sheriffs received notice of this order on August 16, 1999. The Housing Authority thereafter moved for reconsideration. The court denied the motion on March 7, 2000 and entered judgment in favor of defendants (these plaintiffs).
On August 16, 2000, plaintiffs filed this civil rights lawsuit against the County of Marin, the Marin County Sheriff's Department, Sheriff Robert Doyle, Deputy Sheriffs Crowley and Horwitz, Lt. Russell, the Housing Authority of the County of Marin, the Director of the Housing Authority, and two employees of the Authority. The Marin County defendants — the only defendants served with the complaint at the time — subsequently moved to dismiss on the ground, among others, that the sheriffs are entitled to absolute witness immunity for their allegedly false declarations. The Court agreed, but granted plaintiffs leave to amend to allege that the sheriffs were complaining witnesses and therefore not entitled to immunity. See Kulas v. Flores, 2001 WL 705153 * 5 n. 1 (9th Cir. 6/25/01); Harris v. Roderick, 126 F.3d 1189, 1199 (9th Cir. 1997).
Plaintiffs' first amended complaint contains sixteen causes of action: (1) section 1983 claims based on violations of their first, fourth, fifth and fourteenth amendment rights. (2) section 1985 (conspiracy to violate civil rights) claims based on the same constitutional rights, and (3) section 1986 claims.
The heart of plaintiffs' complaint remains the same: the sheriffs knowingly gave false information to the Housing Authority with the intent of initiating the nuisance lawsuit against the four youths. First Amended Complaint ¶ 10. Plaintiffs further allege that defendants' actions were orchestrated by the Housing Authority and Sheriff's Office as part of a policy to rid Marin City of young African American males. Id. ¶ 7. Plaintiffs suggest that this conspiracy arose from the sheriffs' dissatisfaction with plaintiffs' testimony before a grand jury as to the 1996 murder of Ronnie Small in an apartment in Marin City public housing, which plaintiffs witnessed. Id. ¶ 12. As a result of this conspiracy, plaintiffs allege, they suffered emotional distress and were deprived of their constitutional rights. Id. ¶¶ 14, 75.
DISCUSSION
A. Statute of Limitations on All Claims
All defendants first move to dismiss all the claims on the ground that they are barred by the statute of limitations. Claims under 42 U.S.C. § 1983, 1985(3), and 1986 carry a one-year statute of limitations. See Daviton v. Columbia/HCA Healthcare Corp., 241 F.3d 1131, 1135 (9th Cir. 2001). "Although state law determines the length of the limitations period, federal law determines when a civil rights claim accrues." Morales v. City of Los Angeles, 214 F.3d 1151, 1153-54 (9th Cir. 2000). Under federal law a civil rights action generally accrues when the plaintiff "knows or has reason to know of the injury" giving rise to the action. Elliot v. City of Union City, 25 F.3d 800, 802 (9th Cir. 1994). "The primary question, then, is when did these plaintiffs know or have reason to know of the injury of which they complain?" Morales, 214 F.3d at 1154.
1. Accrual of Plaintiff's Claims
In the recent Morales case, the Ninth Circuit held that a section 1983 cause of action based on police misconduct in a prior civil rights suit accrued when plaintiffs lost their cases in the trial court, not when all their appeals of those judgments were exhausted. Id. Plaintiffs argued that the police officers had falsified their testimony, causing plaintiffs to lose their cases in state court and depriving them of their due process right of access to the courts. Id. at 1152. They contended that the statute of limitations did not begin to run until they had exhausted their appeals. because if they had prevailed on appeal, they would not have suffered the injury — losing their civil cases — giving rise to their damages. Id. The Ninth Circuit disagreed. It held that the cause of action accrued when the alleged police in misconduct resulted in judgments being entered against plaintiffs. "At that point, they knew or had reason to know that the alleged misconduct actually caused concrete injury." Id. at 1154. The court noted that its analysis was not affected by the possibility that the judgments of the state trial court might be reversed on appeal, which would render the federal civil rights claims moot: "Accrual and mootness principles operate independently of each other." Id.; see also Davis v. Harvey, 789 F.2d 1332, 1333 (9th Cir. 1986) (holding that a section 1983 claim for wrongful arrest accrued when plaintiff was arrested, not when the state supreme court reversed his conviction).
Here, in March 1998 the trial court granted the preliminary injunction — the concrete injury for which plaintiffs seek relief. Their claims accrued on this date, since once the injunction was issued, plaintiffs were injured and had reason to know of the impermissible conduct. Indeed, plaintiffs do not allege that they only later learned of the baseless nature of the lawsuit against them. Nor could they: presumably they knew whether they engaged in the conduct of which the police accused them.
Plaintiffs argue the claims accrued on August 16, 1999. They contend that defendants engaged in a pattern of behavior amounting to a continuing wrong which did not cease until that date, when the sheriffs stopped enforcing the injunction and plaintiffs could associate with their families in the housing complex without fear. To plead a continuing violation, however, plaintiffs must allege that at least one unlawful act took place within the limitations period. See Green v. Los Angeles County Superintendent of Schools, 883 F.2d 1472, 1480 (9th Cir. 1989) ("[A] plaintiff who shows that a policy and practice operated at least in part within the limitation period satisfies the filing requirements."); Compton v. Ide, 732 F.2d 1429, 1433 (9th Cir. 1984) ("To establish a continuing violation, continued unlawful acts must be demonstrated."). These plaintiffs do not allege that defendants acted unlawfully during the period of August 16, 1999 to August 16, 2000, the year before plaintiffs filed suit. Accordingly, the continuing violation doctrine does not apply here: the claims accrued earlier.
2. Tolling
Whether the statute of limitations was tolled while plaintiffs fought the injunction in state court is a separate issue from when plaintiffs' claims accrued. Plaintiffs argue that under California's "equitable tolling" doctrine, the statute of limitations was tolled until March 7, 2000, the day the trial judge issued his final judgment. Among other things, California's "equitable tolling" doctrine suspends the statute of limitations pending exhaustion of administrative remedies. The prior pursuit of a remedy may toll the state statute of limitations when a person has "several formal legal remedies and reasonably and in good faith pursues one." Jones v. Tracy School Dist., 27 Cal.3d 99, 108 (1980). The equitable tolling doctrine applies only to situations "where plaintiff [seeks] to recover in the civil proceeding for the same injury and on the same circumstances that prompted [the previous] claim." Aerojet General Corp. v. Superior Court, 177 Cal.App.3d 950, 954 (1986). These plaintiffs have never filed a prior claim against defendants for the injury alleged here. During the Marin trial the four youths were defendants seeking to get the nuisance injunction dissolved, not plaintiffs seeking separate monetary damages for violations of their constitutional rights. Therefore, the state equitable tolling doctrine is inapposite.
Nevertheless, the Ninth Circuit and principles of judicial economy and comity indicate the statute of limitations was tolled until the state case concluded. A district court may grant a Rule 12(b)(6) motion to dismiss on statute of limitations grounds "only if the assertions of the complaint, read with the required liberality, would not permit the plaintiff to prove that the statute was tolled." Jablon v. Dean Witter Co., 614 F.2d 677, 682 (9th Cir. 1980). Morales is instructive in this regard:
"Under California law, a malicious Prosecution claim accrues on the date that the trial court enters judgment. The statute of limitations is then tolled during an appeal from the judgment. Gibbs v. Haight, et al., 183 Cal.App.3d 716, 721-22 (Cal.Ct.App. 1986). . . . We agree that California's tolling rule applies in these cases. It is not inconsistent with federal law. It also has the advantage of promoting judicial economy in that it encourages plaintiffs to wait for the appellate proceedings in the underlying case to fully run their course before initiating a denial-of-access-to-the-courts lawsuit."214 F.3d at 1155. Plaintiffs' action here is similar to a malicious prosecution lawsuit in that they claim defendants maliciously instituted the injunction action against them. Morales teaches that in these circumstances the statute is tolled while plaintiffs appeal the "injury" upon which their civil rights claim is based. Accordingly, if plaintiffs had appealed the preliminary injunction, Morales would directly apply to toll the statute while plaintiffs' appeal was pending. Here, rather than appealing the preliminary injunction, plaintiffs chose to contest the permanent injunction — and thus the preliminary injunction — in a full trial on the merits. In so doing. they may have succeeded in having the preliminary injunction dissolved more quickly than if they had appealed the injunction. Moreover, by choosing to go forward with trial, it is likely that plaintiffs more quickly obtained a final judgment in the matter. Thus, the Court declines to ignore the Morales tolling rule simply because plaintiffs went forward with trial rather than appealing the preliminary injunction.
Of course, this case is also distinguishable from Morales in that plaintiffs' defense of the nuisance action did not, and could not, moot this civil rights action, whereas the Morales plaintiffs' civil rights action would have been mooted if the plaintiffs' appeal had succeeded. Concerns with judicial economy nonetheless compel tolling the statute of limitations during the pendency of the state court nuisance proceedings. Plaintiffs significantly reduced their damages by defeating the permanent injunction and having the preliminary injunction dissolved.
Further, by tolling the statute during this period, the Court averts the prospect of a federal court adjudicating the merits of an injunction — and the veracity of the defendants — at the same time that a state court is adjudicating those very issues. If this lawsuit had been filed in federal court before the state proceedings had ended, this Court may have had to rule on the merits of the nuisance action at the same time the state court was deciding whether to issue a permanent injunction under the nuisance statute. Tolling during the completion of the state proceeding allows the state court to "have the unfettered first opportunity" to review the merits of the Housing Authority's claims against these plaintiffs, claims which are directly at issue in this lawsuit. Nino v. Galaza, 183 F.3d 1003, 1007 (9th Cir. 1999) (holding that interests in comity compel tolling the statute of limitations of state prisoner's federal habeas claim pending completion of state habeas proceedings), cert. denied, Galaza v. Nino, 529 U.S. 1104 (2000); see also id. ("[t]tolling . . . until the state has fully completed its review reinforces comity and respect between our respective judicial systems.")
In sum, Morales — and concerns about judicial economy and avoiding entanglement with state proceedings — dictate tolling the statute of limitations during the pendency of the state trial court proceedings. Since those proceedings were not completed until March 2000, plaintiffs' action is timely. See Morales, 214 F.3d at 1155 n. 2 (holding that the statute begins to run again when the appellate court issues a remittitur; a remittitur is analogous to a final judgment in a trial court).
B. Immunity from Section 1983 Claims
1. Sheriffs' Immunity
In addition to their statute of limitations argument, defendants Marin County Sheriff's Department, Sheriff Robert Doyle, Lieutenant Rick Russell, Deputy Sheriff Howard Horwitz, and Deputy Sheriff Robert Crowley ("Sheriff's Department defendants") all move to dismiss plaintiffs' section 1983 claims on the ground of sovereign immunity. They contend that they are officials of the State of California and therefore immune from liability under the Eleventh Amendment.
Section 1983 allows an individual to state a claim when a right secured by the Constitution or the laws of the United State is violated. Specifically, 42 U.S.C. § 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom or usage of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights. privileges, or immunities secured by the Constitution and laws shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.
(emphasis added). One of the necessary elements in stating a claim under section 1983 is that the violation was committed by a "person" acting under color of state law. See West v. Atkins, 487 U.S. 42, 48 (1988).
In general, a local government, such as a county. is a "person" subject to liability under section 1983. See Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690 (1978). States and state officials sued in their official capacity, on the other hand, are not "persons" within the meaning of the statute. See Will v. Michigan Dept of State Police, 491 U.S. 58, 71 (1989). The reason for the distinction is that "[s]tates are protected by the Eleventh Amendment while municipalities are not." Id. at 70. Accordingly, to determine whether the Sheriff's Department defendants are entitled to Eleventh Amendment immunity — and thus whether they are "persons" within the meaning of section 1983 — the Court must decide whether the Marin County Sheriff's Department is a state agency. This is a question of federal law. See Streit v. County of Los Angeles, 236 F.3d 552, 560 (9th Cir. 2001) (stating that "federal law provides the rule of decision in section 1983 actions").
Before answering this question, the Court must distinguish between those Sheriff's Department defendants sued in their official capacity and those sued in their individual capacity. The Eleventh Amendment does not bar section 1983 claims against state officials sued in their individual capacities. See Hafer v. Melo, 502 U.S. 21, 25-27 (1991); Demery v. Kupperman, 735 F.2d 1139, 1146 (9th Cir. 1984). Because the First Amended Complaint makes claims against Sheriff's Department defendants Russell, Horwitz, and Crowley in their individual capacities, they are not entitled to Eleventh Amendment immunity. However, the First Amended Complaint appears to sue Sheriff Doyle in his official capacity, as it does not include any specific allegations as to his conduct. Thus, the issue presented by the Sheriff's Department defendants' motion is whether the Marin County Sheriff's Department and Sheriff Doyle acting in his official capacity are entitled to Eleventh Amendment immunity.
The leading case in this area is McMillian v. Monroe County, 520 U.S. 781 (1997). In McMillian, the Supreme court held that an Alabama sheriff acting in a law enforcement capacity' should be regarded as a state agent for purposes of section 1983 liability. Several factors persuaded the Supreme Court that the Alabama sheriff represents the arm of the state. First, the Alabama Constitution lists sheriffs under the executive department. Second. states judges. rather than the county, supervise the sheriffs. Third, the sheriffs enforce state law. Finally, the state legislature sets the sheriffs' salaries. Id. at 787-91.
The Court also noted several factors suggesting that Alabama sheriffs act as county agents. The county pays the sheriffs' salaries, providing equipment as well as lodging. Alabama sheriffs are jurisdictionally limited to county borders and locally elected. Id. at 791. Nevertheless, the Court ultimately found that the weight of the evidence compels the conclusion that the sheriff is a state agent and thus not a "person" under section 1983. Id. at 791-92.
Defendants urge that California law, like Alabama law in McMillian, makes California sheriffs state officers. The California Constitution provides that the California Attorney General has "direct supervision over every . . . sheriff . . . in all matters pertaining to the duties of their respective offices, and may require any of said officers to make reports concerning the investigation. detection. prosecution, and punishment of crime in their respective jurisdictions. . . ." Cal. Const. Art. V, § 13. The California Code similarly provides that the Attorney General supervises the sheriffs. See Cal. Gov't Code § 12560. The Attorney General may appoint a person to perform the duties of the sheriff for a particular circumstance and may call into conference the sheriffs of different counties to discuss their duties. See Cal. Gov't Code §§ 12561, 12524. While the relevant Code sections emphasize the supervisory role of the state Attorney General, the role of the county board of supervisors is expressly limited; Government Code section 25303 states that the board of supervisors "shall not obstruct the investigative function of the sheriff of the county." Finally, as in McMillian, sheriffs in California enforce state law. See Cal. Gov't Code §§ 26600, 26601, 26602.
In Pitts v. County of Kern, 17 Cal.4th 340 (1998), the California Supreme Court concluded that these and other constitutional and statutory provisions make district attorneys state officials when they are preparing to prosecute and prosecute violations of the state criminal laws. That same year, applying Pitts, the Court of Appeal in County of Los Angeles v. Superior Court (Peters), 68 Cal.App.4th 1166 (1998), relied on the constitutional and statutory provisions identified above to find that the Los Angeles County Sheriff acted as a state official when it detained a plaintiff based on a warrant the Sheriff should have known did not relate to the plaintiff. Defendants urge the Court to follow these cases and argue that for purposes of this lawsuit the Marin County Sheriff's Department is an agent of the State.
Defendants' argument is unpersuasive. The Ninth Circuit recently addressed whether California sheriffs are state officials in Streit v. County of Los Angeles, 236 F.3d 552 (9th Cir. 2001). The court specifically stated that "the differences between the duties and activities of district attorneys and sheriffs are too great" to permit Pitts to influence the question whether sheriffs are state officials. Streit, 236 F.3d at 564 n. 13. The court also held that Peters — a case which defendants contend is controlling, see Marin County Defendants' Memorandum in Support of Motion to Dismiss, at 11 — is not controlling. Streit, 236 F.3d at 560. After an independent analysis of the California Constitution and Code, the Streit court concluded that when sheriffs function as managers of jails, they are county officials subject to liability under section 1983. The Ninth Circuit found persuasive the fact that unlike the Alabama Constitution in McMillian, "the California Constitution does not list sheriffs as part of `the state executive department.'" Id. at 561 ("Indeed, [n]ot only does the California Constitution lack the provisions most important to the Supreme Court's decision in McMillian, its provisions read much like those of the Alabama Constitution prior to that State's determined effort to clarify that sheriffs were acting for the State when exercising their law enforcement functions.") (internal quotations omitted).
Defendants correctly point out that Streit involved sheriffs functioning as jailers rather than acting in a law enforcement capacity. Id. at 561 (noting that "[a]lthough the California Attorney General, like the Alabama Attorney General in McMillian, has statutory control over the sheriffs in a law enforcement capacity. in California, the counties hold the ultimate power over the jails"). At least two federal courts, however, have concluded that California sheriffs functioning in a law enforcement capacity operate as county, rather than state, officials. See Benas v. Baca, 2001 WL 485168 (C.D. April 23, 2001); Roe v. County of Lake, 107 F. Supp.2d 1146. 1149 (N.D. Cal. 2000). Both district courts held that the California Constitution section that grants the Attorney General supervisory authority over sheriffs in their law enforcement activities does not suffice to show that sheriffs are state officials. Instead, the courts stated that "[i]t is difficult to see how a judgment against a sheriff . . . will operate as a judgment against the State.'" Benas, 2001 WL 485168 at * 9 (quoting County of Lake, 107 F. Supp.2d at 1151).
Moreover, and most importantly. defendants' motion does not discuss how California's laws relate to the Sheriff's department's particular law enforcement function alleged here — namely, operating pursuant to a contract between it and the Marin County Housing Authority for the provision of supplemental police services in public housing. See First Amended Complaint ¶ 8(b). The contract was allegedly entered into as part of a partnership between the two entities that was formed through a resolution adopted by the Housing Authority and the County of Marin. Id. ¶ 8(a). The contract allegedly gave the Sheriff's Department the power to enforce the Housing Authority's Rules and Regulations, including removing "unauthorized visitors." Id. ¶ 8(e).
The Court cannot conclude that the statutory and constitutional provisions identified by defendants make the Marin County Sheriff a state actor without some evidence, or at least law, establishing that these provisions apply in this case. For example, the amount of weight the Court gives to the Code provision that provides that the county board of supervisors shall not interfere with the sheriffs' investigative activities, see Cal. Gov't Code § 25303, will depend on whether the Marin County Sheriff's Department has any authority to conduct investigations on activity in the Marin County Housing Authority absent the contract alleged here. In other words, could the Sheriff's Department defendants have engaged in the conduct alleged in the First Amended Complaint without the contract between the Marin Housing Authority and the Sheriff's Department (and the County of Marin resolution forming the partnership)? Similarly, defendants do not explain whether the Attorney General's supervisory authority. see Cal. Gov't Code §§ 12560, 12561, extends to directing sheriffs to investigate activity at properties managed by the Marin Housing Authority.
In light of defendants' failure to establish the relevance of the various California laws concerning sheriffs to the facts alleged here, the Court cannot engage in the analysis required by McMillian and Streit. Accordingly. the Sheriff's Department's motion to dismiss based on the Eleventh Amendment must be denied. The Court's denial is without prejudice to defendants making a similar motion on summary judgment, provided they believe in good faith, after examining the issues identified above, that under McMillian and Streit the Marin County Sheriff is a state official.
2. Housing Authority Immunity
Plaintiffs also sue Housing Authority attorney Barbara Sherrill, who prosecuted the nuisance lawsuit on behalf of the housing Authority. In Fry v. Melaragno, 939 F.2d 832 (9th Cir. 1991), the Ninth Circuit held that absolute immunity applies to government attorneys' initiating and handling of civil litigation:
If the government attorney is performing acts "intimately associated with the judicial phase" of the litigation, that attorney is entitled to absolute immunity from damages liability. . . . "[A]bsolute immunity is necessary to assure that advocates . . . can perform their respective functions without harassment or intimidation" . . . The proper forum for challenges to these allegedly improper actions is in the adversary proceedings, not in a separate suit for damages.939 F.2d at 837-38. Here, Sherrill acted in her official capacity as a representative of the Housing Authority. Her alleged misconduct took place in the context of her prosecution of the public nuisance claim against plaintiffs. Accordingly, she is entitled to absolute prosecutorial immunity.
Plaintiffs insist that Sherrill stepped outside her role as advocate and became a "complaining witness." They claim she therefore forfeited her immunity under the exception set out in Kalina v. Fletcher, 522 U.S. 118 (1997). In Kalina, the Supreme Court held that a county attorney may be liable for her conduct in obtaining an arrest warrant. Because Kalina attested to the truth of the facts contained in the affidavit that she filed along with a motion for arrest, she was not immune from a section 1983 action. The Court noted that testifying about "the truth or falsity of the factual statements themselves . . . is the function of the witness. not of the lawyer." Id. at 130.
Under Kalina, if Sherrill's misconduct involved performing the function of a witness, she may not be immune from section 1983 charges. On the other hand, if she was merely performing "the traditional functions of an advocate," her immunity is not affected. Id. at 131. According to the First Amended Complaint,
Defendant Barbara Sherrill states in her declaration of January 15, 1999, filed in support of a permanent injunction order that, after reviewing the records of defendant Tiyon Ford held by the Marin County Sheriffs' Clerk's Office that [sic] the information contained in the deputy sheriffs' and lieutenants' pleadings regarding the criminal activities and suspicious behavior of Mr. Ford is validated supporting documents.
First Amended Complaint ¶ 37. Plaintiffs contend this allegation proves that Sherrill attested to the truth of the sheriffs' declarations and therefore is not entitled to prosecutorial immunity.
Nevertheless, plaintiffs' claims against Sherrill fail as a matter of law for a number of reasons. First, researching the sheriffs' claims and vouching for their accuracy falls within the ambit of traditional prosecutorial practice. Plaintiffs do not accuse Sherrill of making false statements of her own, but merely object to the conclusions she drew based upon the evidence she was obligated to review. See Kalina, 522 U.S. at 128-29 (stating that prosecutor is entitled to absolute immunity for her determination that evidence was sufficiently strong to justify issuance of arrest warrant).
Second, even assuming Sherrill is not entitled to prosecutorial immunity for her January 1999 affidavit, that affidavit cannot form the basis of plaintiffs' claim against her because she submitted the affidavit long after the preliminary injunction was issued. In other words, Sherrill's affidavit did not cause plaintiffs' damage.
Third, at a minimums, Sherrill is entitled to absolute witness immunity for the affidavit. See Burns v. County of King, 883 F.2d 819, 822 (9th Cir. 1989) (holding that witnesses are entitled to absolute immunity for declarations submitted as part of judicial proceedings). Sherrill does not qualify as a complaining witness exempt from absolute witness immunity because plaintiffs do not allege that she "`actively instigated or encouraged the prosecution of the plaintff[s].'" Kulas, 2001 WL 705153 at * 5 n. 1 (quoting Anthony v. Baker, 955 F.2d 1395, 1399 n. 2 (10th Cir. 1992)). Instead, the First Amended Complaint alleges that the deputy sheriffs initiated the nuisance action by providing the Marin Housing Authority with false and misleading information. First Amended Complaint ¶ 10. Accordingly, Sherrill must be dismissed from the lawsuit.
Plaintiffs' amended complaint includes six causes of action under section 1985(3) for conspiracy to violate civil rights. To state a section 1985(3) claim, plaintiffs must allege, "inter alia, (1) that `some racial, or perhaps otherwise class-based, invidiously discriminatory animus [lay] behind the conspirators' action' . . . and (2) that the conspiracy `aimed at interfering with rights' that are `protected against private, as well as official, encroachment'" Bray v. Alexandria Woman's Health Clinic, 506 U.S. 263, 268 (1993). To survive a motion to dismiss, the plaintiff must plead specific facts to support the existence of the alleged conspiracy. See Burns v. County of King, 883 F.2d 819, 821 (9th Cir. 1989). Because a violation of section 1985 involves the defendants' subjective intent, vague and conclusory allegations are insufficient to state a claim. See Karim-Panahi v. Los Angeles Police Department, 839 F.2d 621, 626 (9th Cir. 1988) ("A mere allegation of conspiracy without factual specificity is insufficient.").
Plaintiffs' allegations do not satisfy this pleading standard. While plaintiffs allege many specifics about the Sheriff's Department and Housing Authority's 1997 partnership as part of a drug elimination program, which provided for supplemental police services and additional patrols, there is nothing unlawful about a partnership regarding a drug elimination program. See First Amended Complaint ¶ 8. Plaintiffs do not offer any specific allegations to support their conspiracy claims, and most importantly, their conclusory allegation of racial animus. Accordingly, these claims must be dismissed.
D. Section 1986
Plaintiffs' thirteenth through sixteenth causes of action allege defendants violated section 1986 because they had knowledge of a conspiracy and failed to prevent it. If a complaint does not state a claim under section 1985, it does not state a claim under section 1986. See McCalden v. California Library Ass'n, 955 F.2d 1214, 1223 (9th Cir. 1990). Plaintiffs' section 1986 claims must therefore be dismissed.
CONCLUSION
For the foregoing reasons the Court rules as follows:
The County of Marin defendants' motion to dismiss is GRANTED in part and DENIED in part as follows:
1. The County of Marin defendants' motion to dismiss the section 1985 and 1986 causes of action is GRANTED with 20 days leave to amend;
2. In all other respects the County of Marin defendants' motion to dismiss is DENIED.
The Marin Housing Authority defendants' motion to dismiss is GRANTED in part and DENIED in part as follows:
1. Defendant Sherrill's motion to dismiss is GRANTED without leave to amend;
2. The Marin Housing Authority defendants' motion to dismiss the section 1985 and 1986 causes of action is GRANTED with 20 days leave to amend;
3. In all other respects the Marin Housing Authority defendants' motion to dismiss is DENIED.
The Court hereby orders the parties to attend a status conference at 8:30 a.m. on August 3, 2001. In accordance with the Local Rules, the parties shall submit a Joint Case Management Conference Statement in advance of the conference. The Statement shall include a proposed schedule for resolution of defendants motion for summary judgment on grounds of qualified immunity. The Court also suggests that the parties agree to consolidate any motions to dismiss plaintiffs' amended section 1985 and 1986 claims with the motions for summary judgment on qualified immunity grounds.
IT IS SO ORDERED.