Opinion
Case No. CV 99-01054 DDP (ALJx)
December 12, 2001
DEFENDANTS' MOTION TO DISMISS SECOND AMENDED COMPLAINT [Motion filed on 10/09/01]
This matter comes before the Court on the defendants' motion to dismiss the plaintiff's second amended complaint. After reviewing and considering the materials, the Court grants the motion with respect to the plaintiff's defamation claim and denies the motion with respect to all other claims.
BACKGROUND
The factual badkground is taken from Milstein v. Cooley, 257 F.3d 1004 (9th Cir. 2001) (relying on the second amended complaint).
On January 29, 1999, Leonard R. Milstein (the "plaintiff" or "Milstein"), filed this action against Stephen L. Cooley ("Cooley") and Robert B. Foltz ("Foltz") (collectively the "defendants") alleging due process violations under 42 U.S.C. § 1983 and malicious prosecution. Specifically, the plaintiff alleged that the defendants: (1) fabricated evidence by recruiting Gutierrez to recant his trial testimony and instead falsely claim that the plaintiff had solicited him to commit perjury; (2) used that false statement as the basis for filing a crime report against the plaintiff, listing themselves as the complaining witnesses or crime victims; (3) investigated the offense reported in the crime report; (4) secured an indictment by posing as "advisors" to the grand jury; (5) after the indictment was dismissed, secured an information and an arrest warrant by instructing a subordinate (Doe 1) to sign a false criminal complaint; (6) opposed the re-appointment of the plaintiff's prior counsel; and (7) made false statements to the press.
The plaintiff is a criminal defense attorney. Commencing in 1988 and continuing through 1989, the plaintiff represented Brad Millward, who was tried for two counts of homicide. Millward was acquitted of one count, and the jury deadlocked on the other count. As a result of his successful defense of Millward, the plaintiff alleges that the defendants conspired to deny him due process and subject him to malicious prosecution.
Specifically, the defendants approached Gutierrez, a defense witness in the Millward trial who was then serving a California penal sentence, for the purpose of inducing Gutierrez to agree to testify falsely in a contemplated prosecution of the plaintiff for subornation of perjury, offering false documents, and solicitation of bribery. Gutierrez agreed.
Following this agreement with Gutierrez, the defendants then filed a crime report against the plaintiff with the Los Angeles County Sheriff's and District Attorney's offices, listing the defendants as the complaining witnesses or crime victims. The defendants and Doe 1 (a District Attorney's investigator answering to Cooley and Foltz) then investigated the purported offense.
Upon concluding this investigation, the defendants secured a grand jury indictment against the plaintiff. The plaintiff alleges that "Cooley and Foltz would mislead, misadvise, and mischaracterize the `evidence' against plaintiff during grand jury proceedings where said defendants . . . posed as `advisors' when in reality [they] were complaining witnesses." Milstein, 257 F.3d at 1006. This indictment was dismissed by the California Superior Court.
After that, the defendants instructed Doe 1 to sign a criminal complaint against the plaintiff (in order to avoid another grand jury proceeding) which resulted in the issuance of an arrest warrant, and reprosecution via an information. Upon the plaintiff's re-arraignment, the defendants appeared in Municipal Court to oppose the re-appointment of the plaintiff's prior counsel (who had successfully argued for the dismissal of the prior grand jury indictment). The plaintiff was convicted by a jury in May of 1995, but the conviction was reversed on appeal for insufficient of the evidence.
The plaintiff's second amended complaint also details allegedly defamatory statements made by the defendants to the press. Following the plaintiff's jury trial conviction, Foltz commented to the Los Angeles Daily Journal, "That's what you get when you step over the line." Id. at 1007. In addition, on the day the plaintiff's conviction was reversed on appeal, Cooley commented to the Daily Journal, "Obviously, he is still smarting from the fact that the system — in an effort to preserve the integrity of the criminal trial process — successfully exposed his alleged criminal misconduct." Id.
B. Procedural Background
On January 29, 1999, the plaintiff filed an action against the defendants under 42 U.S.C. § 1983 for due process violations and malicious prosecution. The Court dismissed the plaintiff's second amended complaint on the basis of absolute prosecutorial immunity, and an appeal to the Ninth Circuit followed. Upon appeal, the Ninth Circuit found that because certain acts by the defendants were not done in their role as advocates, the defendants were not shielded by absolute immunity as to all the claims. Milstein, 257 F.3d at 1011-13. As such, the Ninth Circuit affirmed in part, reversed in part, and remanded the case back to this Court. Id.
C. Claims Remanded to the Court
The Ninth Circuit held that absolute prosecutorial immunity applied to the defendants' conduct in securing a grand jury indictment, securing an information, and securing an arrest warrant. Id. However, the Ninth Circuit determined that the defendants were not entitled to absolute immunity with regard to the allegations of fabricating evidence, filing a false crime report, misconduct in investigating the purported crime, and making statements to the media. Id.
The defendants have brought the present motion to dismiss the claims remanded to this Court.
DISCUSSION
A. Legal Standard
Dismissal under Rule 12(b)(6) is appropriate when it is clear that no relief could be granted under any set of facts that could be proven consistent with the allegations set forth in the complaint. Newman v. Universal Pictures, 813 F.2d 1519, 1521-22 (9th Cir. 1987). The court must view all allegations in the complaint in the light most favorable to the non-movant and must accept all material allegations — as well as any reasonable inferences to be drawn from them — as true. North Star Int'l v. Arizona Corp. Comm'n, 720 F.2d 578, 581 (9th Cir. 1983). However, a matter that is properly the subject of judicial notice may be considered along with the complaint when deciding a motion to dismiss. MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th Cir. 1986). The court may take judicial notice of official records and reports without converting a Rule 12(b)(6) motion into a motion for summary judgment. Henson v. CSC Credit Servs., 29 F.3d 280, 284 (7th Cir. 1994).
B. Analysis
1. Qualified Immunity
Section 1983 creates a private right of action against individuals who, acting under color of state law, violate federal constitutional or statutory rights. 42 U.S.C. § 1983. Qualified immunity, however, shields § 1983 defendants "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
In Saucier v. Katz, 121 S.Ct. 2151 (2001), the Supreme Court clarified the two-step qualified immunity inquiry. To decide whether a defendant is protected by qualified immunity, a court must first determine whether, "[t]aken in the light most favorable to the party asserting the injury, . . . the facts alleged show the officer's conduct violated a constitutional right." Id. at 2156. If the plaintiff's factual allegations do add up to a violation of the plaintiff's federal rights, then the court must proceed to determine whether the right was "clearly established," i.e., whether the contours of the right were already delineated with sufficient clarity to make a reasonable officer in the defendant's circumstances aware that what he was doing violated the right. Id. In essence, at the first step, the inquiry is whether the facts alleged constitute a violation of the plaintiff's rights. If they do, then, at the second step, the question is whether the defendant could nonetheless have reasonably, but erroneously, believed that his or her conduct did not violate the plaintiff's rights. Id. at 2158 ("The concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular police conduct.").
2. Qualified Immunity As Applied to the Defendants
a. Fabricating Evidence
Taking the plaintiff's allegations as true, the Court must decide whether qualified immunity shields the defendants' conduct. The plaintiff alleges that the defendants knowingly obtained false statements from Gutierrez for the purpose of prosecuting the plaintiff. Milstein, 257 F.3d at 1011.
i. The facts, as alleged, show that the defendants' conduct violated a constitutional right
The defendants argue that the mere creation of false testimony, without reference to it ultimately being used in a judicial proceeding, does not constitute a violation of an established constitutional right. (Defs' Reply at 11.) Indeed, fabrication of evidence in and of itself does not violate a constitutional right. Buckley v. Fitzsimmons, 20 F.3d 789, 794-95 (7th Cir. 1994). However, such characterization of the right based on the facts of the instant case is too narrow.
In articulating the specific constitutional right violated, the Court relies on Devereaux v. Abbey, 263 F.3d 1070 (9th Cir. 2001), in which the Ninth Circuit held that "there is a clearly established constitutional due process right not to be subjected to criminal charges on the basis of false evidence that was deliberately fabricated by the government." Id. at 1074-75. violated the plaintiff alleged that his due process rights were violates because the defendants knowingly obtained false statements from Gutierrez for the purpose of prosecuting the plaintiff. (Second Amended Complaint ("SAC") at 9.)
Hence, the Court finds that the plaintiff has alleged facts to show that the defendants' conduct violated the plaintiff's constitutional due process right not to be subjected to criminal charges on the basis of false evidence that was deliberately fabricated by the defendants.
ii. The right was clearly established
In holding that there is a clearly established constitutional due process right not to be subjected to criminal charges on the basis of false evidence that was deliberately fabricated by the government, the Devereaux court stated:
[p]erhaps because the proposition is virtually self-evident, we are not aware of any prior cases that have expressly recognized this specific right, but that does not mean that there is no such right. Rather, what is required is that government officials have "fair and clear warning" that their conduct is unlawful. See United States v. Lanier, 520 U.S. 259, 271 (1997) (noting that "general statements of the law are not inherently incapable of giving fair and clear warning," and that "a general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though `the very action in question has [not] previously been held unlawful'" (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)) (alteration in original)); see also Giebel v. Sylvester, 244 F.3d 1182, 1189 (9th Cir. 2001) ("Precedent directly on point is not necessary to demonstrate that a right is clearly established. Rather, if the unlawfulness is apparent in light of preexisting law, then the standard is met. In addition, even if there is no closely analogous case law, a right can be clearly established on the basis of common sense." (emendations, internal quotation marks, and citations omitted)).
Devereaux, 263 F.3d at 1074-75.
The Devereaux court referred to Pyle v. Kansas, 317 U.S. 213, 216 (1942), where the Supreme Court found that the knowing use by the prosecution of perjured testimony in order to secure a criminal conviction violates the Constitution. Recognizing that Pyle does not deal specifically with the bringing of criminal charges, as opposed to the securing of a conviction, the Devereaux court found that "the wrongfulness of charging someone on the basis of deliberately fabricated evidence is sufficiently obvious, and Pyle is sufficiently analogous, that the right to be free from such charges is a constitutional right." Devereaux, at 1075.
Likewise, the Court finds that, given the facts of the instant case, a reasonable officer in the defendants' circumstances would be aware that what he was doing violated the plaintiff's right. Indeed, a reasonable officer would be aware that approaching a defense witness, who was then serving a California penal sentence, for the purpose of inducing him to agree to testify falsely in a contemplated prosecution of the defense attorney for subornation of perjury, offering false documents, and solicitation of bribery, would violate the plaintiff's rights. The Court, therefore, finds that the plaintiff has a clearly established constitutional right not to be subjected to criminal charges on the basis of false evidence that was deliberately fabricated by the defendants.
b. Filing a False Crime Report and Conducting an Investigation Based on that Report
Taking the allegations as true, the Court must decide whether qualified immunity shields the defendants' conduct. The plaintiff alleges that the defendants used the aforementioned fabricated evidence as the basis for filing a false crime report and then investigating the offense recorded in the crime report. The crime report listed Cooley and Foltz as the complaining witnesses or crime victims. Milstein, 257 F.3d at 1011.
i. The facts, as alleged, show that the defendants' conduct violated a constitutional right
The defendants argue that filing an allegedly false police report and conducting an investigation based on that report are not actionable violations of 42 U.S.C. § 1983. (Defs' Mtn. at 13.)
As to the report, although the plaintiff's complaint does not indicate that the crime report was sworn, the filing of a crime report as a complaining witness or crime victim is analogous to filing an affidavit or oath in support of an arrest warrant. Milstein, 257 F.3d at 1011; Kalina v. Fletcher, 522 U.S. 118, 129-31 (1997). The defendants argue that there is no constitutional right not to be named as a suspect in a police report, and, therefore, they should be granted qualified immunity. (Defs' Mtn. at 14.)
As to the investigation, from the chronology of the plaintiff's complaint, the defendants are alleged to have conducted their investigation after filing the crime report and before empaneling the grand jury. The defendants, relying on Tomer v. Gates, 811 F.2d 1240 (9th Cir. 1987), assert that there is no constitutional right to not be the subject of an "official investigation", even when it is alleged that the investigation is based on fabricated evidence, and that, therefore, they should be granted qualified immunity. (Defs' Mtn. at 14.)
In support of their arguments, the defendants cite Tomer, where the court emphasized:
The essence of Tomer's section 1983 claim is that he has a constitutional right not to have been the subject of an official investigation by Officer Lombardo in which the LAPD "fabricated evidence." . . . [A] defendant may have a valid qualified immunity defense if the court is convinced that the official conduct at issue "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." . . . There is no allegation that Tomer was deprived of any liberty or property interest, nor do we find any deprivation.811 F.2d at 1241-42. However, Tomer is distinguishable from the instant case. In Tomer, the officer who conducted the investigation, Lombardo, was not accused of fabricating evidence or filing a false police report. Lombardo had no personal knowledge of the creation of the allegedly false information, he merely relied on the information he was given when he was assigned to conduct an investigation of the plaintiff. In the instant case, the plaintiff alleges that the defendants created the false evidence which they later relied upon when they filed a report as crime victims and then investigated the alleged crime.
The defendants also cite Moreland v. Las Vegas Metro. Police Dept., 159 F.3d 365 (9th Cir. 1998), contending that the Ninth Circuit, impliedly, did not find a viable claim under § 1983 because the plaintiff's allegation of a false report filed by a police officer, by itself, did not violate any constitutional or federal statutory right. (Defs' Mtn. at 15.) To find otherwise, the defendants argue, the Ninth Circuit would have held that plaintiff's had stated such a cause of action, regardless of the viability of their equal protection claim arising from the defendants' supposed failure to comply with state law. (Id.)
Upon reviewing Moreland, the Court disagrees with the defendants' contentions. In Moreland, the Ninth Circuit dismissed the plaintiff's Fourteenth Amendment based due process claim before it reached the "question of whether allegations of perjury, without more, state a due process claim under § 1983", specifically stating that the court "need not resolve this question today for Appellants have not demonstrated they have standing . . ." Id., 159 F.3d 370. Accordingly, the Court declines to imply that Moreland stands for the proposition that allegations of perjury, without more, fail to state a due process claim under § 1983.
Nonetheless, assuming arguendo that the defendants' characterization of the case was accurate and that Ninth Circuit had ruled that an allegation of perjury, alone, did not constitute a due process claim under § 1983, Moreland remains distinguishable. The Moreland officers were accused of perjured testimony "without more," whereas the officers in the instant case are accused of fabrication of evidence in concert with filing a false report and conducting an investigation based on that report which led to a criminal conviction and incarceration of the plaintiff.
In articulating the specific constitutional right violated, the Court relies once again on Devereaux, in which the Ninth Circuit held that "there is a clearly established constitutional due process right not to be subjected to criminal charges on the basis of false evidence that was deliberately fabricated by the government." Id. at 1074-75. Here, the plaintiff alleges that his due process rights were violated because the defendants knowingly obtained fabricated evidence and then, subsequently, knowingly used that fabricated evidence to file a false police report and conduct an investigation for the purpose of prosecuting the plaintiff. (SAC at 9.)
Rather than violating separate constitutional rights, the alleged evidence fabrication, crime report filing, and investigation were part of a continuum of unconstitutional conduct by the defendants designed to subject the plaintiff to criminal charges on the basis of false evidence. Moreover, unlike Tomer, the plaintiff explicitly alleged a deprivation of liberty, stating that the defendants engaged in this continuum of conduct that resulted in the plaintiff being "falsely accused on a complaint and falsely imprisoned. . . ." (SAC at 6.) Hence, the Court finds that the plaintiff has alleged facts to show that the defendants' conduct violated the plaintiff's constitutional due process right riot to be subjected to criminal charges on the basis of false evidence that was deliberately fabricated by the defendants.
ii. The right was clearly established
Although, as the defendants point out, there is no existing case law which would have led these defendants to believe that they could be held liable under § 1983 for knowingly filing a false police report and then conducting an investigation based on that false report, the plaintiff's constitutional right to due process is nonetheless clearly established.
The Ninth Circuit has held that "[w]hen the defendant['s] conduct is so patently violative of the constitutional right that reasonable officials would know without guidance from the courts that the action was unconstitutional, closely analogous preexisting case law is not required to show that the law is clearly established." Deorle v. Rutherford, 263 F.3d 1106, 1119 (9th Cir. 2001) (quoting DeBoer v. Pennington, 206 F.3d 857, 864-65 (9th Cir. 2000). This is such a case. No reasonable officer could have believed that knowingly filing a police report and conducting an investigation based on evidence that he fabricated himself was appropriate or lawful. To the contrary, it would be clear to the reasonable person that it was unlawful. It is irrelevant that there is no case law in the Ninth Circuit directly on point; "notwithstanding the absence of direct precedent, the law may be, as it is here, clearly established." Deorle, 263 F.3d at 1119 (citing DeBoer, 206 F.3d at 864-65 (rejecting the notion that officer liability cannot exist "unless the very action in question has previously been held unlawful")).
As stated earlier, the Court finds that the defendants violated the plaintiff's constitutional due process right not to be subjected to criminal charges on the basis of false evidence that was deliberately fabricated by the government. The police report and investigation were part and parcel of this violation, necessary steps between the fabrication of evidence and the filing of criminal charges against the plaintiff.
As a matter of policy, the doctrine of qualified immunity was designed to "insulate government agents against personal liability for money damages for actions taken in good faith pursuant to their discretionary authority." Sonoda v. Cabrera, 255 F.3d 1035, 1042 (9th Cir. 2001) (citing Harlow v. Fitzgerald, 457 U.S. at 807 (1982)). In this case, the plaintiff specifically alleges abuse of discretionary authority in bad faith. Taking the allegations as true, the Court holds that qualified immunity does not shield the defendants from liability for allegedly filing a false crime report and conducting an investigation based on that report.
c. Making Statements to the Media
Taking the plaintiff's allegations as true, the Court must decide whether qualified immunity shields the defendants' conduct. The plaintiff alleges that the defendants knowingly defamed him by making false statements to the press. Milstein, 257 F.3d at 1011.
i. The facts, as alleged, show that the defendants' conduct violated a constitutional right
Absolute immunity does not protect prosecutors for comments they make to the media. Buckley v. Fitzsimmons, 509 U.S. 259, 277 (1983). Hence, the Ninth Circuit held that this act by the defendants was not protected under absolute prosecutorial immunity. Milstein, 257 F.3d at 1013. However, the Ninth Circuit expressed no opinion as to whether the comments at issue give rise to a valid claim under § 1983. Id.
The defendants assert that allegedly defamatory statements made to the media are not actionable violations of 42 U.S.C. § 1983. (Defs' Mtn. at 16.) "To state a claim under section 1983, a plaintiff must allege loss of a recognizable property or liberty interest in conjunction with the allegation of injury to reputation. [citation] This has become known as the `stigma-plus' test." Cooper v. Dupnik, 924 F.2d 1520, 1532 (9th Cir. 1991) (footnote omitted); see also Buckley, 20 F.3d at 797 ("Slander is not . . . a constitutional tort, because a persons s interest in his reputation is neither `liberty' nor `property' for purposes of the due process clause.")
The plaintiff claims that the defendants "made defamatory statements to the press" following the plaintiff's conviction in 1995, and that defendant Cooley made a maligning statement about the plaintiff to a newspaper following the reversal of the plaintiff's conviction in 1999. (SAC ¶ 6, 8(2), 9 (7-8), 9 (on p. 6), 12.) However, nowhere in the plaintiff's papers is there an allegation of injury to a liberty or property interest. Accordingly, the claim fails the stigma-plus test.
Therefore, the Court holds that the plaintiff's allegations regarding defamatory statements made to the media by the defendants fail to state a claim under 42 U.S.C. § 1983 upon which relief may be granted. Moreover, the Court finds that the defect is not curable. As such, the Court dismisses the § 1983 claim regarding defamatory statements without leave to amend.
Because the Court finds that the plaintiff's allegations regarding defamatory statements made to the media by the defendants fail to state a claim under 42 U.S.C. § 1983, the Court does not reach the question of whether defamatory statements made by the defendants to the press constitute conduct that would be shielded by qualified immunity.
If the plaintiff wishes to add an additional claim, he needs to file the appropriate motion.
3. The Plaintiff's Request For A "Chuman Certification"
To prevent the defendants from filing an interlocutory appeal regarding the denial of qualified immunity, the plaintiff has requested a "Chuman certification." (Pl's Opp. at 25.)
In Chuman v. Wright, 960 F.2d 104 (9th Cir. 1992), the Ninth Circuit held that "[s]hould the district court find that the defendants' claim of qualified immunity is frivolous or has been waived, the district court may certify, in writing, that defendants have forfeited their right to pretrial appeal, and may proceed with trial. Id. at 105 (footnote omitted). Furthermore, "[i]n the absence of such certification, the district court is automatically divested of jurisdiction to proceed with trial pending appeal. Id.
The plaintiff argues that the instant case has already suffered too much delay, thus the Court should issue a "Chuman certification." (Pl's Opp. at 25.)
The Court, however, does not find that the defendant's claims of qualified immunity are frivolous. The claims remanded to the Court raised genuine issues as to whether qualified immunity could shield the defendants from being subjected to this lawsuit. The Court, therefore, denies the plaintiff's request for a "Chuman certification."
CONCLUSION
For the foregoing reasons, the Court grants the defendants motion to dismiss with respect to the defamation claim, but denies the motion with respect to all other claims.
IT IS SO ORDERED.