LOUIS TAYLOR, a single man, Plaintiff-Appellee, v. COUNTY OF PIMA, a body politic; CITY OF TUCSON, a body politic, Defendants-Appellants.
No. 17-16980
United States Court of Appeals, Ninth Circuit
January 17, 2019
D.C. No. 4:15-cv-00152-RM. Argued and Submitted August 15, 2018. San Francisco, California.
FOR PUBLICATION
Appeal from the United States District Court for the District of Arizona Rosemary Márquez, District Judge, Presiding
Before: Mary M. Schroeder, Eugene E. Siler,* and Susan P. Graber, Circuit Judges.
Opinion by Judge Graber; Concurrence by Judge Graber; Dissent by Judge Schroeder
SUMMARY**
Civil Rights
The panel dismissed, in part, an interlocutory appeal and affirmed, in part, the district court‘s order granting a motion to dismiss in an action brought pursuant to
In 1972, a jury convicted plaintiff in state court of 28 counts of felony murder on the theory that he had started a deadly fire at a Tucson hotel. In 2012, while still in prison, plaintiff filed a state post-conviction petition advancing newly discovered evidence that arson did not cause the hotel fire. The government and plaintiff entered into a plea agreement in 2013 under which the original convictions were vacated and, in their place, plaintiff pleaded no contest to the same counts, was resentenced to time served, and was released from prison. Plaintiff then brought his
The panel first gave deference to this court‘s previous order, issued by a motions panel, which denied the County‘s application for permission to appeal the denial of immunity pursuant to
The panel exercised its discretion under
Concurring, Judge Graber wrote separately to explain that in Cortez v. County of Los Angeles, 294 F.3d 1186 (9th Cir. 2002), this court wrongly exercised jurisdiction over an interlocutory appeal in similar circumstances, and that, in an appropriate case, the court should overrule Cortez in its en banc capacity.
Dissenting in part, Judge Schroeder wrote that the panel‘s decision that plaintiff could not recover compensatory damages magnified an already tragic injustice. Judge Schroeder stated that plaintiff accepted the 2013 plea offer because his only alternative was to stay in prison and wait for his petition for collateral relief to wend its way through the courts, a process that could take years.
COUNSEL
Nancy J. Davis (argued), Deputy County Attorney, Civil Division, Pima County Attorney‘s Office, Tucson, Arizona, for Defendants-Appellants.
John P. Leader (argued), Leader Law Firm, Tucson, Arizona; Timothy P. Stackhouse, Peter Timoleon Limperis, and Lindsay E. Brew, Miller Pitt Feldman & McAnally P.C., Tucson, Arizona; for Plaintiff-Appellee.
GRABER, Circuit Judge:
In 1972, a jury convicted Louis Taylor in Arizona state court of 28 counts of felony murder, on the theory that he had started a deadly fire at a Tucson hotel. In 2012, while still in prison, Taylor filed a state post-conviction petition advancing newly discovered evidence: an expert, using new and more sophisticated investigative techniques, determined that arson did not cause the hotel fire. The government disputed Taylor‘s new theory but nevertheless agreed to the following procedure. The government and Taylor entered into a plea agreement in 2013 under which the original convictions were vacated and, in their place, Taylor pleaded no contest to the same counts, was resentenced to time served, and was released from prison.
Taylor then sued Pima County and the City of Tucson in state court, under
The County then moved to dismiss Taylor‘s operative complaint. Two of the County‘s arguments are relevant on appeal. First, the County argued that the relevant government officials acted on behalf of the State, not the County; the County asserted that, accordingly, it was entitled to “Eleventh Amendment immunity.” Second, the County argued that, because all of Taylor‘s time in prison was supported by the valid 2013 criminal judgment, Taylor could not recover damages for wrongful incarceration.
The district court granted in part and denied in part the motion to dismiss. The court held that the County was not entitled to Eleventh Amendment immunity. But the court agreed with the County that Taylor could not recover damages for wrongful incarceration. The district court then certified its order for interlocutory appeal pursuant to
Both parties applied to this court for permission to appeal. See
A motions panel of this court denied both applications to appeal pursuant to
In accordance with that order, the parties then filed briefs addressing the issue of the County‘s asserted immunity under the Eleventh Amendment. At our request, the parties also filed supplemental briefs addressing whether Taylor may recover damages for wrongful incarceration.
A. Eleventh Amendment Immunity
The County asserts that we have jurisdiction to review the district court‘s ruling on Eleventh Amendment immunity under the two jurisdictional provisions noted above: discretionary review under
“When a party seeks a section 1292(b) interlocutory appeal, the court of appeals must undertake a two-step analysis.” Arizona v. Ideal Basic Indus. (In re Cement Antitrust Litig.), 673 F.2d 1020, 1026 (9th Cir. 1982). First, we determine whether the appeal meets the legal requirements of
We therefore turn to whether we have appellate jurisdiction under
Before us, Taylor argued that the County, by consenting to removal of the case to federal court, waived Eleventh Amendment immunity. See Lapides v. Bd. of Regents of Univ. Sys., 535 U.S. 613, 624 (2002) (holding that the state‘s consenting to removal to federal court “waived its Eleventh Amendment immunity” with respect to state law claims); Embury v. King, 361 F.3d 562, 566 (9th Cir. 2004) (extending Lapides to federal law claims and announcing “a straightforward, easy-to-administer rule in accord with Lapides: Removal waives Eleventh Amendment immunity.“). In response, the County cited decisions from other circuits that have held that removal waives immunity from suit but does not waive immunity from liability. See, e.g., Stroud v. McIntosh, 722 F.3d 1294, 1301 (11th Cir. 2013) (“We hold that although the Board‘s removal to federal court waived its immunity-based objection to a federal forum, the Board retained its immunity from liability ....“). The County clarified that, in this case, it was asserting only immunity from liability. See, e.g., Reply Brief at 17 (“Pima County asserted Eleventh Amendment immunity as a substantive bar to Taylor‘s claim .... In other words, it was asserted as a bar to liability rather than a bar to the federal court‘s ability to hear Taylor‘s claim.” (emphasis added)). The County‘s asserted immunity from liability can be vindicated fully after final judgment; accordingly, the collateral-order doctrine of
In conclusion, we exercise our discretion under
B. Damages for Wrongful Incarceration
1. Appellate Jurisdiction
Taylor asks us to exercise our discretion under
Taylor seeks other forms of relief, such as nominal damages, so the district court‘s ruling does not dispose of his case entirely. But Taylor emphasizes the importance of the incarceration-related damages. From a practical standpoint, the district court‘s
As noted, we ordinarily do not disturb a motions panel‘s determination under
2. Discussion
Taylor seeks damages for wrongful incarceration stemming from the 42 years that he spent in prison. The Supreme Court‘s holding in Heck v. Humphrey, 512 U.S. 477 (1994), provides an important limitation on Taylor‘s claims. Under Heck, a plaintiff in a
Taylor alleges that his 1972 conviction and resulting sentence were plagued by constitutional violations and that those errors initially caused his incarceration. Critically, however, all of the time that Taylor served in prison is supported by the valid 2013 state-court judgment. The state court accepted the plea agreement and sentenced Taylor to time served. For that reason, even if Taylor proves constitutional violations concerning the 1972 conviction, he cannot establish that the 1972 conviction caused any incarceration-related damages. As a matter of law, the 2013 conviction caused the entire period of his incarceration.
Our decision in Jackson v. Barnes, 749 F.3d 755 (9th Cir. 2014), is instructive. A jury originally convicted the plaintiff of rape and murder. Id. at 758. His murder conviction—but not his rape conviction—was later vacated. Id. at 759 & n.1. He was later convicted, once again, of murder. Id. at 759. In his
The First Circuit reached the same result in a case that is factually indistinguishable from this one. In Olsen v. Correiro, 189 F.3d 52, 55 (1st Cir. 1999), a jury found the plaintiff guilty of murder, but the state court later overturned that conviction. The plaintiff then pleaded nolo contendere to manslaughter, and the state court sentenced him to time served. Id. In the plaintiff‘s
Our decision also accords with the Second Circuit‘s decision in Poventud v. City of New York, 750 F.3d 121 (2d Cir. 2014) (en banc). A jury convicted the plaintiff of serious crimes but, seven years later, a state court vacated the conviction and sentence. Id. at 124. The plaintiff then pleaded guilty to a lesser crime, and a state court imposed a one-year sentence. Id. In the plaintiff‘s
We agree with the analyses and conclusions of our sister circuits. A plaintiff in a
DISMISSED in part and AFFIRMED in part. The parties shall bear their own costs on appeal.
GRABER, Circuit Judge, concurring:
I join the opinion in full. I write separately to explain my view that, in Cortez v. County of Los Angeles, 294 F.3d 1186 (9th Cir. 2002), we wrongly exercised jurisdiction over an interlocutory appeal in circumstances similar to those we face here and that, in an appropriate case, we should overrule Cortez in our en banc capacity.
“[O]nly States and arms of the State possess immunity from suits authorized by federal law.” N. Ins. Co. of N.Y. v. Chatham County, 547 U.S. 189, 193 (2006). Counties do not. Lincoln County v. Luning, 133 U.S. 529 (1890). Here, the only appellant is Pima County. The County plainly is not a State, and it has not asserted that it is an “arm of the State.” See Mitchell v. L.A. Cty. Cmty. Coll. Dist., 861 F.2d 198, 201-02 (9th Cir. 1989) (describing the factors to consider when deciding whether a governmental entity is an “arm of the state“). Accordingly, the County is not entitled to Eleventh Amendment immunity. The analysis is truly that simple. See, e.g., Alden v. Maine, 527 U.S. 706, 756 (1999) (“[Sovereign] immunity does not extend to suits prosecuted against a municipal corporation or other governmental entity which is not an arm of the State.“); Will v. Mich. Dep‘t of State Police, 491 U.S. 58, 70 (1989) (“States are protected by the Eleventh Amendment while municipalities are not[.]“); SolarCity Corp. v. Salt River Project Agric. Improvement & Power Dist., 859 F.3d 720, 729 (9th Cir. 2017) (“[M]unicipalities . . . may not rely on . . . Eleventh Amendment immunity.“); Eason v. Clark Cty. Sch. Dist., 303 F.3d 1137, 1141 (9th Cir. 2002) (“[T]he Eleventh Amendment does not extend to counties and municipal corporations.“).
The County nevertheless seeks to assert Eleventh Amendment immunity and thereby to invoke our jurisdiction over this interlocutory appeal under the collateral-order doctrine. The County‘s attempt requires some explanation.
Plaintiff Louis Taylor has asserted claims against the County under Monell v. Department of Social Services, 436 U.S. 658 (1978), which requires proof of a policy, practice, or custom by the County. He asserts that the actions of certain government officials amounted to a practice or custom by the County. The County‘s sole argument on appeal is that the relevant officials were, in fact, working on behalf of the State, so the County cannot be liable.
The Supreme Court has recognized the viability of that argument: if the relevant officials were working on behalf of the State, then any practice or custom was a State practice or custom, not a municipal practice or custom. McMillian v. Monroe County, 520 U.S. 781 (1997). But that argument does not bear on whether the municipality has Eleventh Amendment immunity. Proof that the relevant officials did not work for the municipality defeats the plaintiff‘s case but by virtue of an ordinary failure to prove an element of a claim—here, the existence of a municipal policy, practice, or custom. If the defendant municipality is correct that the relevant official was a State official, then the plaintiff has failed to state a claim against the municipality. Eleventh Amendment immunity plays no role.
Nowhere in McMillian does the Supreme Court mention the Eleventh Amendment or immunity from suit. (Nor had the circuit court of appeals mentioned those doctrines. McMillian v. Johnson, 88 F.3d 1573 (11th Cir. 1996).) Not surprisingly, our cases, too, describe this doctrine in terms of whether the municipality was the actor, rather than in terms of sovereign immunity and the Eleventh Amendment. See, e.g., Weiner v. San Diego County, 210 F.3d 1025, 1031 (9th Cir. 2000) (“[T]he San Diego County district attorney was acting as a state official in deciding to proceed with Weiner‘s criminal prosecution. Weiner‘s § 1983 claim against the County, therefore, fails. The County was not the actor; the state was.” (emphasis added)); Jackson v. Barnes, 749 F.3d 755, 767 (9th Cir. 2014) (“Jackson alleges, in effect, that the District Attorney‘s Office is liable for Murphy‘s unlawful prosecutorial conduct. The District Attorney‘s Office, however, acts as a state office with regard to actions taken in its prosecutorial capacity, and is not subject to suit under § 1983. Weiner, 210 F.3d at 1030.“)1; United States v. County of Maricopa, 889 F.3d 648, 651 (9th Cir. 2018) (“Because the traffic-stop policies at issue fall within the scope of a sheriff‘s law-enforcement duties, we conclude that Arpaio acted as a final policymaker for Maricopa County when he instituted those policies.“); Goldstein v. City of Long Beach, 715 F.3d 750 (9th Cir. 2013) (lengthy analysis with no mention of the Eleventh Amendment or sovereign immunity); Botello v. Gammick, 413 F.3d 971 (9th Cir. 2005) (same); Brewster v. Shasta County, 275 F.3d 803, 805 (9th Cir. 2001) (“The question is whether he is a policymaker on behalf of the state or the county; if he is a policymaker for the state, then the county cannot be liable for his actions.“).
Most importantly, precisely the same issue as decided in McMillian—whether Alabama sheriffs act for the state or the county—arose in a case before the Supreme Court in 1995, two years before McMillian. In Swint v. Chambers County Commission, 514 U.S. 35, 41 (1995), the Supreme Court “granted certiorari to review the Court of Appeals’ decision that Sheriff Morgan is not a policymaker for Chambers County.” But the Court then ordered supplemental briefing on the issue of appellate jurisdiction. Id. In its opinion, the Supreme Court unanimously held that the court of appeals lacked appellate jurisdiction:
The commission‘s assertion that Sheriff Morgan is not its policymaker does not rank, under our decisions, as an immunity from suit. Instead, the plea ranks as a “mere defense to liability.” An erroneous ruling on liability may be reviewed effectively on appeal from final judgment. Therefore, the order denying the county commission‘s summary judgment motion was not an appealable collateral order.
Id. at 43 (citation omitted).
There is no doubt that the underlying substantive issue—whether the sheriff acted for the county or the state—was precisely the same two years later in McMillian, because the Court in McMillian noted that the Eleventh Circuit in Swint had reached the issue but that the Supreme Court had vacated the Eleventh Circuit‘s decision for lack of appellate jurisdiction. McMillian, 520 U.S. at 786 n.3 (citing ”Swint v. Wadley, 5 F.3d 1435, 1450-51 (1993), vacated for lack of appellate jurisdiction, 514 U.S. 35 (1995)” (emphasis added)). Applying Swint, other circuit courts have held, unambiguously, that “[w]hen a county appeals asserting that a sheriff is not a county policymaker under § 1983, that presents a defense to liability issue for the county over which we do not have interlocutory jurisdiction.” Manders v. Lee, 338 F.3d 1304, 1307 n.6 (11th Cir. 2003) (en banc); see also Skelton v. Camp, 234 F.3d 292, 297 (5th Cir. 2000) (“[T]he determination of which entity a defendant serves as policy maker presents a liability issue, not an immunity issue.“); accord Hunter v. Town of Mocksville, 789 F.3d 389, 403 n.4 (4th Cir. 2015). Applying Swint‘s rule here, we lack jurisdiction over the County‘s interlocutory appeal because the County argues solely that the relevant officials were not County policymakers.
Our decision in Cortez overlooked this fundamental jurisdictional defect. Cortez, like this case, was an interlocutory appeal by a county from the denial of Eleventh Amendment immunity. 294 F.3d at 1188.
We plainly erred in Cortez. In an appropriate case, we should undo this error in our en banc capacity.
SCHROEDER, Circuit Judge, dissenting as to Part B.2:
This decision magnifies an already tragic injustice. At the time of Tucson‘s Pioneer Hotel fire in 1972, Louis Taylor was an African American male of sixteen. Arrested near the hotel, he was convicted on the basis of little more than that proximity and trial evidence that “black boys” like to set fires. He has spent a lifetime of 42 years in prison following his wrongful conviction. When he filed his state court petition the county that had prosecuted him did not even respond to his allegations of grievous deprivations of civil rights, including the withholding of evidence that the fire was not caused by arson at all, and the indicia of racial bias underlying the entire prosecution. Instead of responding, the county offered Taylor his immediate freedom in return for his pleading no contest to the original charges and agreeing to a sentence of time served.
He accepted the offer, since his only alternative was to stay in prison and wait for his petition for collateral relief to wend its way through the courts, a process that could take years. Because his original conviction had been vacated and all of the prison time he had served was as a result of that invalid conviction, he filed this action to recover damages for his wrongful incarceration.
Yet the majority holds that he can recover nothing. Why? Because it interprets the few cases with circumstances remotely similar to this one to require the admittedly unfair holding that his plea agreement somehow validates or justifies the original sentence that deprived Taylor of a meaningful life.
In my view our law is not that unjust.
Our Circuit law actually supports the award of damages for the time Taylor served in prison as a result of an unlawful, and now vacated conviction. Our leading case is Jackson v. Barnes, 749 F.3d 755 (9th Cir. 2014), where, as here, the plaintiff‘s original conviction was vacated on habeas review. Hence, a claim for damages resulting from wrongful incarceration was not barred by Heck v. Humphrey. Jackson, 749 F.3d at 760-61. The majority acknowledges the same is true here.
In Jackson the plaintiff could not recover damages, however, because the wrongful conviction had not yet resulted in any wrongful incarceration. This was because he was still serving other, earlier imposed sentences and never began serving the term imposed as a result of the unlawful conviction. In other words, there was a lack of causation. Id. at 762. Taylor, by contrast, served decades of imprisonment as a result of his first, vacated conviction, so there is no lack of causation here. Under Jackson, he should recover. That Taylor later, in order to gain prompt release, pleaded no contest to the charges and to a sentence of time served, does not undo the causal sentencing chain set in motion after the original, invalid conviction. The majority‘s
The Second Circuit‘s decision in Poventud also supports reversal. Poventud v. City of N.Y., 750 F.3d 121 (2d Cir. 2014) (en banc). Poventud‘s conviction was vacated on collateral attack, on the basis of a Brady violation, and a new trial was ordered. Id. at 124. He then pleaded guilty to a lesser charge, pursuant to a plea agreement that dismissed all other charges and stipulated to a one-year sentence, with time already served. Id.. The Second Circuit held that Poventud‘s Brady-based claim was not Heck-barred insofar as it related to his first conviction. Id. at 124-25, 134-36. As the en banc court explained, were Poventud to win at trial in his civil rights suit, “the legal status of his [second conviction] would remain preserved.” Id. at 138 (quoted by Jackson, 749 F.3d at 761). He was permitted to pursue a claim of damages for the time he served beyond the one year plea agreement stipulation. Judge Lynch‘s concurrence is also instructive, as it focuses on the injustice of relying on the subsequent guilty plea to deny Poventud a remedy for the unfairness of the first trial. Id. at 138-47. The majority‘s decision ignores such injustice in this case.
Taylor‘s case is even more compelling than those of Jackson and Poventud because his first conviction was so deeply tainted that we now know the disastrous fire may not have been set by anyone, and the prosecution was without adequate foundation from the beginning. He won more than a new trial, but virtual exoneration. His situation is therefore also different from the situation in Olsen v. Correiro, 189 F.3d 52 (1st Cir. 1999), where the plaintiff‘s murder conviction was overturned but he was subsequently convicted of manslaughter.
Far from being the product of a new, constitutionally-conducted second trial, Taylor‘s second conviction was the product of his desperate circumstances. In his 60‘s, he faced acceptance of the plea offer or waiting years for a habeas petition to work its way through the courts. We should not tolerate such coercive tactics to deprive persons of a remedy for violations of their constitutional rights. To say such a plea justifies the loss of 42 years, as the majority asserts, is to deny the reality of this situation and perpetuate an abuse of power that
Our court has spoken to this before:
“When prosecutors betray their solemn obligations and abuse the immense power they hold, the fairness of our entire system of justice is called into doubt and public confidence in it is undermined.” Silva v. Brown, 416 F.3d 980, 991 (9th Cir. 2005).
So has the Supreme Court:
“It hardly seems unjust to require a municipal defendant which has violated a citizen‘s constitutional rights to compensate him for the injury suffered thereby. Indeed, Congress enacted § 1983 precisely to provide a remedy for such abuses of official power.” Owen v. City of Independence, 445 U.S. 622, 654 (1980).
I therefore regretfully and respectfully dissent.