146 F.3d 1149 (9th Cir. 1998), 97-15073, Ortega v. O'Connor

Docket Nº:97-15073.
Citation:146 F.3d 1149
Party Name:98 Daily Journal D.A.R. 7028 Magno J. ORTEGA, M.D., Plaintiff-Appellee, v. Dennis Michael O'CONNOR, M.D. and Richard Friday, Defendants-Appellants.
Case Date:June 26, 1998
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1149

146 F.3d 1149 (9th Cir. 1998)

98 Daily Journal D.A.R. 7028

Magno J. ORTEGA, M.D., Plaintiff-Appellee,


Dennis Michael O'CONNOR, M.D. and Richard Friday,


No. 97-15073.

United States Court of Appeals, Ninth Circuit

June 26, 1998

Argued and Submitted Feb. 9, 1998.

Page 1150

Paul T. Hammerness, Deputy State Attorney General, San Francisco, California, for the defendants-appellants.

Gilbert T. Graham, San Francisco, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California; Marilyn Hall Patel, District Judge, Presiding. D.C. No. CV-82-4045-MHP.

Before: D.W. NELSON, REINHARDT, and WIGGINS, Circuit Judges.

REINHARDT, Circuit Judge:

In 1981, defendants Dr. Dennis Michael O'Connor and Richard Friday, who were then officials at California's Napa State Hospital, directed an extensive inquiry that they contend was a lawful administrative investigation of Dr. Magno Ortega's management practices. The investigation led to a highly intrusive search of Dr. Ortega's private office and all of the personal possessions he kept there, among which were private letters and romantic mementos. In the course of the search, the defendants seized most of the items that were in Dr. Ortega's office, including the items mentioned above, and maintained custody over them for a period of many months. Dr. Ortega, a longtime employee of the Hospital, questioned the defendants' motives, took exception to some of their more intrusive investigatory tactics, retained a lawyer to try to get his personal possessions back, and ultimately filed a timely action, claiming violations of his civil rights. Some sixteen years later, after a lengthy series of rulings and appeals, Dr. Ortega prevailed, obtaining a jury verdict holding the defendants liable under 42 U.S.C. § 1983 for conducting an unreasonable search and seizure. The defendants now appeal, contending primarily that the district court erred in denying them a qualified immunity defense and in holding prior to trial that their seizure of certain romantic mementos from Dr. Ortega's office was unreasonable as a matter of law. We affirm.


Dr. Magno Ortega, a licensed physician and psychiatrist, held the position of Chief of Professional Education at Napa State Hospital from 1964 to late 1981. In that capacity, he supervised the training of the resident physicians specializing in psychiatry. During 1981, two events occurred that prompted Hospital officials to commence an investigation into his management practices. That investigation led to the searches and seizures that are the subject of this case.

First, in March 1981, at the suggestion of several residents, Dr. Ortega purchased a new computer for use in the Hospital's residency training program. The residents donated money to cover about half the cost and Dr. Ortega paid the rest. About a month later, when Dr. Ortega asked Dr. O'Connor, the Hospital's Executive Director, to sign some thank-you letters for persons who had made donations for the computer and for subpurchase orders to obtain accessories for the computer, Dr. O'Connor became concerned about whether the computer had been properly donated to the Hospital.

Second, a couple of months after the purchase of the computer, Dr. Ortega placed Dr. Richard Vaughan, a resident at the Hospital, on involuntary leave for failing to report for his scheduled rotation. In response to Dr. Ortega's actions, Dr. Vaughan told Personnel Director Dorothy Owen that he believed that Dr. Ortega had placed him on leave because he had not contributed to the purchase of the computer and because he had urged other residents to ask for their money back. On July 29, 1981, Ms. Owen told Dr. O'Connor about Dr. Vaughan's complaint.

Later that day, Dr. O'Connor wrote a memorandum to Mr. Richard Friday, the Hospital Administrator, asking him to initiate an investigation into Dr. Ortega's handling of these issues. In the memorandum, Dr.

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O'Connor cited two reasons for the investigation: (1) the circumstances surrounding Dr. Ortega's acquisition of the computer; and (2) the complaint of Dr. Vaughan. The next day, Dr. O'Connor authorized Friday to select an investigative team, and granted the investigative team broad authority, including the right to search Dr. Ortega's office, despite the fact that the Hospital had no policy that allowed Hospital staff to enter private offices of employees without their consent. Similarly, while the Hospital did have a policy of taking routine inventory of state property in the offices of terminated employees, it did not have a policy of taking inventory of the items in offices of employees on administrative leave. Nor had the Hospital ever informed Dr. Ortega that his office could be entered and investigated.

Dr. O'Connor told Dr. Ortega of his intention to investigate his management practices--but not of any intent to search his office--and asked him to take an administrative leave. Instead of taking leave, however, Dr. Ortega, with the approval of Dr. O'Connor, took an unpaid vacation beginning July 31, 1981 and ending August 14, 1981. Dr. O'Connor told Dr. Ortega not to return to the Hospital during his vacation without written permission. After Dr. Ortega left the Hospital, Friday placed a new lock on the door to Dr. Ortega's private office, which the doctor had occupied for his seventeen years of employment at the Hospital. Friday kept the key under his control. Before this occurred, Dr. Ortega was the only Hospital official who had a key to that office, and the office had never been entered without his permission.

On Friday, August 14, Dr. O'Connor sent a letter to Dr. Ortega informing him that the investigation had not been completed and that he had been placed on administrative leave with pay commencing on Monday, August 17. Dr. Ortega was told not to return to the Hospital until the investigation was completed. Apparently, however, Dr. Ortega did not receive the letter until it was delivered to his house on August 17, for during the weekend of August 15-16, Dr. Ortega returned to the Hospital to get his mail and discovered that the lock on his office door had been changed. Unable to enter the office, he took the new computer, which was located in a nearby unlocked room, home for the weekend to do some work (something he often did). On Monday, August 17, Dr. Ortega called his secretary to ask whether he had any appointments and informed her that he had taken the computer home. Yet when Dr. O'Connor learned from others that the computer had been taken, he claims to have believed that a theft of state property had occurred; in any event, he filed a report with Hospital police. The police report, dated that same day, states that Dr. Ortega had informed his secretary that he had taken the computer home.

During the ongoing investigation of Dr. Ortega--possibly as early as in the first two weeks of August--Dr. Margaret Pranger, a staff psychiatrist who ran a therapy support group for residents, including those in Dr. Ortega's program, told Dr. O'Connor in very vague and general terms of complaints made by a current and a former resident regarding Dr. Ortega's conduct toward them. After Dr. Pranger spoke with Dr. O'Connor, he asked her to talk with Dr. Thomas Laskay, the head of the investigative team, and she repeated the same vague and general statements to him. Although neither woman had used the phrase in talking with Dr. Pranger, at a later time in the proceedings, she characterized their comments as relating to sexual harassment.

Sometime around the time Dr. Ortega took the computer home--but certainly well before the last week of August--the Hospital's investigators commenced a series of searches of Dr. Ortega's office without a warrant and without his knowledge or consent. It is unclear whether Dr. Ortega's taking the computer home or Dr. Pranger's reporting of her concerns predated the inception of the searches. In any event, at some point in August, Friday and the investigators began their searches and seizures of Dr. Ortega's property. (For convenience, hereafter, we refer to the series of searches as simply "the search.") Friday later claimed "the search was initiated because he 'wanted to make sure that we had our state property identified, and in order to provide Dr. Ortega with his property and get what we had out of there, in order to make sure our resident's

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files were protected, and that sort of stuff.' " O'Connor v. Ortega, 480 U.S. 709, 727, 107 S.Ct. 1492, 94 L.Ed.2d 714 (1987) (plurality opinion) (quoting Friday's deposition). Dr. O'Connor similarly claimed that the search was initiated "for the purposes of trying to look at the issues around obtaining the computer and the contracts and where documents might be placed, if in fact they [were] State documents on State property," or, in other words, "to make a determination as to what is State and what is not the State's." O'Connor deposition at 60, 73. The search was completed sometime before August 27.

The search was extremely thorough and highly intrusive. The investigative team entered Dr. Ortega's office on several occasions and repeatedly searched his office, his desk, and his private file cabinets. In his desk drawers, the investigators examined and, according to Dr. Laskay's report, read "numerous personal letters from friends, one of his ex-wives, a daughter, as well as many sexually explicit letters from several women over the years." The investigators removed the checks and correspondence regarding Dr. Ortega's acquisition of the computer. They then reviewed and boxed up the remaining state property along with Dr. Ortega's personal possessions--lecture notes and numerous teaching aids, framed...

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