*1 1245 252(d)(2)(a)® respecting compensation to supposed interpretation per- to its for one-way forming that termination. paging. for See compensation N.A., (South Dakota), v. Smiley Citibank 742, 1730, 735, 135 116 S.Ct.
517 U.S. CONCLUSION that, (stating in certain L.Ed.2d 25 defer to the interpretation. We FCC’s circumstances, in agency’s an inconsistent Cook terminates traffic and Pacific Bell is terpretations of a statute are not entitled required reciprocal compensa- to enter a deference). agen disagree. We arrangement compensate tion Cook cy’s regulation defining reciprocal com performing that termination. The inter- 51.701(e) C.F.R. its pensation —and —47 agreement connection Pacific between Bell easily statements are recon interpretative requirements and Cook meets the of 47 ciled. §§ judgment U.S.C. 251 and 252. The the district is therefore AF- 252(d)(2)(A)®, light In the we read FIRMED. 51.701(e) that, meaning C.F.R. one carrier originates %ohentraffic another,
and terminates with the terminat-
ing compensation. carrier must receive
Similarly, recip- the FCC’s statement that compen- compensation
rocal “mean[s]
sation flows both directions between
interconnecting simply networks” restates BROOKS, by un- ESTATE OF agency’s arrangements view Claude through administrator, compensa-
der which a carrier receives no Clarence BROOKS, Plaintiff-Appellant, tion for the traffic that it terminates are “Ed” “reciprocal.” originat- The Act forbids v. ing refusing pay compen- carriers from America, UNITED STATES terminating carriers. sation Defendant, understood, So the FCC’s statements on subject agency’s are consistent. The interpretation “reciprocal” is a plausible Alameda, Defendant- permissible interpretation of an am- Appellee. statutory biguous Accordingly, term. No. 98-15063. interpretation is entitled to defer- FCC’s Chevron, ence. See U.S. Appeals, Court of United States (“[I]f S.Ct. 2778 the statute is silent Ninth Circuit. ambiguous specific is- Submitted June sue, question for the court is whether agency’s permis- answer is based on a Filed Nov. statute.”); Yang sible construction of the Amended Dec. 1999. As (9th Cir.1996) (“In INS, ambiguity Congressional the face of si-
lence, agency’s we should defer to the judgment.”).
considered Under the FCC’s
interpretation, Cook terminates traffic
originated by Pacific Bell and entitled 251(b)(5) §§
under 34(a)(2). R.App. panel appropriate finds to Fed. P. this case argument pursuant submission without oral *2 Oakland, California,
Paul McCarthy, the plaintiff-appellant. Thorsness, Deputy County
Kristen J. Counsel, Alameda, Oakland, County of California, defendant-appellee. for the NELSON, HAWKINS, Before: T.G. GRABER, Judges. Circuit GRABER; Opinion by Judge Dissent DALY MICHAEL HAWKINS. GRABER, Judge: At request of United States (Marshals Service), Marshals Service (County) of Alameda held Claude Brooks, detainee, pretrial de- time, days. During tention arraigned Brooks was not be- fore a federal officer. After his instructions, release against action filed this the Coun- ty, Deputy the individual United States Marshals, States, alleging and the United (as violation of his eonstitm- pertinent) now before a federal during officer 1983; rights, period 42 U.S.C. false im- tional his detention.4 At the end of 12 and violation of various prisonment; days, Cali- complied with federal provisions.2 fornia constitutional instructions to release Brooks. Brooks, settled with obtain-
United States *3 prejudice, a and the ing dismissal STANDARD OF REVIEW against Deputy claims the individual Mar- We review de novo a dismissal for prejudice by were dismissed with shals Hicks, failure to state a claim. See stipulation. The district court then dis- F.3d with prejudice against missed the claims the under Federal Rule of Civil 12(b)(6). timely ap-
Procedure
On this
DISCUSSION
peal,3 we affirm.
A.
Section
The district court dismissed the
FACTS ALLEGED
claim in
original complaint
the
for failure
Because the district court dismissed the
to allege
County policy.
a deliberate
See
action under Federal Rule of
Proce-
Civil
York,
Dep’t
Monell v.
Soc. Servs. New
12(b)(6), we take all allegations
dure
658,
2018,
436 U.S.
98 S.Ct.
material as construe the com- (1978). Brooks amended his claim to al- plaint light most the favorable to the lege County’s that the part conduct “was Small, nonmoving party. Hicks v. See general policy of a of neglect that [the (9th Cir.1995). 967, County] dealing has followed when Brooks, jailed prisoner, a former federal detainees facili- was parole early Again released on 1987. In Feb- ties.” the district court dismissed ruary parole, prejudice, while still on this time with on the voluntarily ground complaint that drug allege entered an 18-month did not a County policy treatment deliberate program, but he left about a with sufficient year particularity. later completing it. Howev- er, completion of program was not a We need not decide whether the district condition of parole, parole and Brooks’ in declining permit court erred a further discharged in April of 1987. amendment,5 because the district court’s January
On ruling complaint officials of the was correct even if the Marshals Service arrested Brooks on a proposed. had been amended as See Unit- Kaluna, charge escape. They him told that the ed States v. had
escape
something
halfway
Sept.
to do with a
at *7 n. 2
WL
Cir.
1999) (en banc)
They
house.
(holding
took Brooks to the Santa
that a district
jail,
operated by
Rita
which is
ruling may
upheld
court’s
on an alter-
sheriff,
record).
ground supported by
where he was detained until Janu-
native
ary
1996. Brooks was never taken That is so
alleged
because the
actions of
ing
person
2. Brooks also
but he
officer to take the arrested
has abandoned them.
magistrate judge
“without unneces-
sary delay”); and Northern District of Cali-
3. Brooks died of natural causes after the dis-
(c) (requiring
fornia Local Criminal Rule 5-1
ruled;
brings
appeal.
trict court
his estate
person
arrested for a federal offense be
magis-
prisoner’s
before the nearest available
4. A federal
to be taken before
officer after arrest derives from 18
judge).
trate
3142(f) (requiring
officer
hearing
to hold a detention
to determine
Appendix,
quotes
5.See
the attached
which
whether a defendant should be released or
pertinent paragraph
proposed Sec-
of the
trial);
pending
detained
Federal Rule of
Complaint.
ond Amended
5(a) (requiring
Criminal Procedure
an arrest-
court affirmed.
and this
pro-
imprisonment,
in the
County,
even
detailed
1474-80. We reasoned
amendment,
id. at
not a
cause See
posed
have taken rea-
County could
Multnomah
of Brooks’
(for
county-wide
steps
example,
sonable
(in all
According
compari-
or a manual
computer program
iterations),
held Brooks
its
sheet
County’s booking
between
son
di
long as the Marshals Service
only so
docket)
keep
County’s court
and the
to,
longer. The
it
and no
rected
indeed,
inmates;
Multnomah
track of
statute, Califor
to a state
acted
causa-
County appears to have admitted
4005(a),
requires
which
nia Penal Code
steps
tion.
id. at 1478-79. Those
See
“receive,
keep in the
county sheriffs to
of the
effective because
could have been
there
jail, any prisoner committed
*4
county
system issue.
linkages
the state
within
under the
order issued
by process
or
contrast, here,
linkages
such
are ab-
By
States, until
or
he
authority of the United
involving
a case
Oviatt was
sent: Whereas
according to law.”
discharged
she is
right
left hand knew what the
whether the
County
the
allegation
no
that
is
There
involving
doing,
is a case
hand was
of
either the
to follow
instructions
failed
your
knows
my left hand
what
whether
of
or the mandates
the Marshals Service
Oviatt,
in
the
doing. Unlike
is
hand
allegation
There is no
state statute.
the
the
ability
bring
County had no
itself
the statute itself is unconstitutional.
that
judicial of-
appropriate
the
prisoner before
circumstances,
In the
the
Indeed,
proposed
in the
amended
ficer.
been,
they may have
policies, whatever
only
alleges
Brooks
that
happened
altered what
could not have
help,
have asked for federal
County should
County
authori
was without
Brooks.
County’s options
recognition that
bring Brooks before
federal
ty
either
bringing Brooks before a
included neither
itself, because it cannot
judge
releasing him.
judicial officer nor
States,
to release
act for the United
so,
of
is
being
the element
causation
That
him,
ignore
it cannot
the state
because
dis-
missing from the
and
Indeed,
allege
does not
Brooks
statute.
prejudice
proper.
was
missal with
either
County
pursued
could have
Therefore,
only
those courses.
of
B. State Law Claims
detention
prolonged
of Brooks’
causes
Imprisonment
1. False
Claim
States
were the actions of
United
Brooks)
law,
(which
im
the state
California
false
Under
settled
(which
personal
“a violation of the
goes unchallenged).
prisonment
Causa
is
statute
course,
accomplished
is,
liberty
element of a
another
without
required
of
of
tion
Pearce,
Los
authority.” Asgari
City
v.
v.
claim. See Oviatt
lawful
(9th Cir.1992).
744, 753,
1470,1474
63 Cal.
Angeles, 15 Cal.4th
(1997).
There
Rptr.2d
was belief, plaintiff 30. On information and More- of the United States. ment order alleges following: over, was duration of the confinement con- a. That ALAMEDA COUNTY’S to a pursuant to that order and deliberate, part general, duct of a unchallenged valid—and facially —state and official neglect requiring until continued detention statute COUNTY has followed ALAMEDA according is to law. discharged a prisoner dealing when with federal detainees did not undisputed jailed It that the facilities. any COUNTY, sheriff, than United
keep longer oth- b. That the County policy-making er responsible it to. court did not told The district States knew that prob- officials there was a dismissing imprisonment err in the false involving being lem detainees not prejudice. claim with timely arraigned receiving timely procedures, pretrial especially Constitutional 2. State Claims federal detainees. claims district dismissed.these COUNTY, sheriff, c. That the for a of reasons. prejudice number County policy-making er responsible *5 rea- Among things, other district court made a deliberate officials' decision these premised soned that claims were tracking and proce- institute other entirely on the now-dismissed false arrest help problems, dures to avoid such that, imprisonment in false claims and in especially the case of de- federal there re- federal the absence tainees, on the excuse that it would independent no basis for federal mained costly, bothersome, too too too incon- jurisdiction. For the discussed venient, reasons -or for some constitu- reason, above, tionally inadequate properly the court dismissed when procedures too fact the would not be federal as the underlying as well bothersome, costly, incon- too or too Therefore, the claim.6 imprisonment false venient to be feasible. dismissing the district court did not err in COUNTY, sheriff, That the d. constitutional claims. state County responsible policy-making er conscious, followed a officials deliber- CONCLUSION ate, irresponsible “bus locker” held government Brooks the federal policy, to federal detain- bring prompt- its failure him account for County policy, ees. Under federal ly officer on a essentially jail treated the as if it inability Because of the charge. for coin-operated bus station locker detainees, in the circumstances to have him fed- federal into which the deposit eral marshals could a detainee federal officer on the fed- before a wanted, long for as as the marshals him, charge, or to eral have released and under which for Brooks cannot hold the liable as if simply keep the detainee would the same failure. at a they storing personal items were AFFIRMED. locker until the bus station marshals to collect the detainee. Un- returned policy, . der this views clothing, responsibility feeding, sole APPENDIX housing, caring and otherwise detainees, Com- proposed hapless The Second Amended while these collect- dollars for this service. plaint alleged part: ing federal among those that 6. The false arrest claim was abandoned. detainees, could not have it
ward federal injury. of Brooks’s cause been else, up leaves Everything so, says, majority because This is authorities, including to the federal Brooks be- not have taken County could federal de- track of whether keeping Only magistrate itself. fed- fore a federal arraignments prompt received tainees taken Brooks be- could have eral officials procedures, prompt pretrial or other therefore magistrate, and fore a federal procedures that e. That there were the cause only federal officials were could have followed COUNTY injury. problems for would have alleviated seems majority’s view of causation plain- general federal detainees County could Although the overly rigid. procedures Such particular. tiff in not have taken Brooks before and would obvious and feasible helpless to avoid his included, magistrate, it was not noting the example, have have tracked could was first the federal detainee date and, days had status after several facility, Rita not- Brooks’s brought to the Santa officials of his passed, reminded federal a federal detainee ing a date which It is true the magistrate. to see a have before a should been guaranteed could not have arraigned, ini- federal reminder. would heed this marshals that the federal officials tially informing the Pearce, case, But in a similar Oviatt to be taken before a detainee needed Cir.1992), upheld we peri- time magistrate within a certain hours) 1983 action successful section prisoner’s and then call- (normally od inju- clerk, only “unlikely” that the magistrate, where it was ing the proper ry would have occurred under *6 Attorney particular if a detain- or U.S. Here, unlikely that system. it is tracking before a had not been ee ignored officials would have re- this time. Such federal magistrate within Therefore, the County. from the also have included minder procedures could inju- to avoid the helpless was not contacting the federal defender legal cause of ry to Brooks and so was counsel on a detainee’s be- public er his promptly half if a detainee was not mag- arraigned before the have avoided the The also could istrate. by injury way: to in another re- added.)
(Emphasis majority contends that leasing him. precluded step from this HAWKINS, DALY MICHAEL 4005(a), re- Code which CaLPenal Judge, dissenting: hold Brooks until quired the have concluding In that Brooks does not That authorities said otherwise. under section a cause of action however, trump requirement, could that the Coun- majority apparently agrees right not to locked Brooks’s federal ty right Brooks’s duty had a magis- jail being brought without before a magistrate “with- be taken before a federal trate. However, the unnecessary delay.”1 out I was a if the had Because believe majority holds even injury, respectfully I neglect to- cause Brooks’s an official intentional event, out, and, unnecessary delay, any within majority points this 1. As the derives 3142(f); arrest, excluding from several sources: 18 his 48 hours after or her 5(a); Federal Rule of Criminal Procedure holidays.” delay Sundays in this Local Criminal Northern District California majori- days, although under the case was 12 (c). Penal Code Rule 5-1 California view, if the ty's it would make no difference provides shall in all also that a "defendant delay days. was 100 cases be taken before opinion by dissent.2 Senior William W
Schwarzer.
OPINION Robert Kibler appeals the district denying court’s order petition for a writ of corpus habeas and dismissing the KIBLER, Robert C. Petitioner- prejudice. case with Kibler raises two Appellant, appeal. issues on (1) Whether the ineffective assistance of Kay WALTERS, Respondent-Appellee. counsel claims presented No. 98-35536. Washington Supreme Court through incorporation by reference of his of Appeals, United States Court brief in Appeals? the Court of Ninth Circuit. conviction, Following his Kibler filed a Argued Sept. and Submitted 1999. pro supplemental se brief in the Court of Memorandum filed Oct. 1999. Appeals on April alleging ineffec- Order Filed Dec. 1999. tive assistance of September counsel. On As Amended Jan. 20, 1993, the Commissioner affirmed his conviction. modify Kibler’s motion to Avenía, Peter J. Assistant Federal Pub- ruling was denied. He then filed a motion Defender, Tacoma, lic Washington, for the discretionary review in the Washington petitioner-appellant. Supreme seeking Court review of the rul- Judge, Attorney Daniel J. Assistant ing affirming the conviction. This motion General, Olympia, Washington, for the re- raised three specific claims: A ineffec- spondent-appellee. tive assistance claim directed at counsel’s
failure investigate expert witness’ *7 (2) credentials; a claim an evidentiary hearing with respect ineffective assis- tance claims raised in his brief in Appeals; Court of a claim that deprived cumulative errors him of a fair Before: GOODWIN and SCHROEDER, trial. The district court found that Judges, SCHWARZER,1 District Judge. Senior first claim had been exhausted and dis- merits; missed it on the that issue is not
SCHWARZER, Judge: Senior District before us. With to his other inef- fective assistance the motion did ORDER specify grounds, only referring pro supplemental disposition The memorandum se brief the Court filed Oct. redesignated as an authored Appeals, simply sought an eviden- Inc., I Kayport Package Express, also would conclude that the district court 1989). denying abused its discretion in Brooks leave Cir. to amend his a second time. The record in this case Schwarzer, contains no evidence of 1. The Honorable William W Sen- faith, motive, delay, dilatory undue bad re- ior United States District for the North- deficiencies, peated California, failure to cure sitting designa- undue ern District of prejudice opposing party. See Moore v. tion.