Devereaux v. Abbey, PLAINTIFF-APPELLANT

Citation263 F.3d 1070
Decision Date05 September 2001
Docket NumberA,PLAINTIFF-APPELLANT,DEFENDANTS-APPELLEE,No. 97-35781,97-35781
Parties(9th Cir. 2001) ROBERT DEVEREAUX,, v. TIMOTHY DAVID ABBEY; LAURIE ALEXANDER; KATE CARROW; LINDA WOOD; KENNETH BADGLEY, IN HIS OFFICIAL CAPACITY AS CHIEF OF POLICE OF THE CITY OF WENATCHEE; WASHINGTON STATE DEPT OF SOCIAL AND HEALTH SERVICES; ROBERT RICARDO PEREZ, OPINIONnd EARL TILLY, IN HIS OFFICIAL CAPACITY AS PUBLIC SAFETY COMMISSIONER FOR THE CITY OF WENATCHEE; CITY OF WENATCHEE, A MUNICIPAL CORPORATION, DEFENDANTS
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

[Copyrighted Material Omitted] Steven C. Lacy, East Wenatchee, Washington, for the plaintiff-appellant.

Jeff Freimund, Assistant Attorney General, Olympia, Washington, for the defendants-appellees.

Appeal from the United States District Court for the Eastern District of Washington Robert H. Whaley, District Judge, Presiding D.C. No. CV 96-0115 RHW

Before: Mary M. Schroeder, Chief Judge, and Harry Pregerson, Diarmuid F. O'Scannlain, Ferdinand F. Fernandez, Thomas G. Nelson, Andrew J. Kleinfeld, A. Wallace Tashima, Sidney R. Thomas, Kim McLane Wardlaw, Richard A. Paez, and Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Tashima; Concurrence by Judge Fernandez; Partial Concurrence and Partial Dissent by Judge Kleinfeld

Tashima, Circuit Judge.

Plaintiff Robert Devereaux brought suit in federal district court for alleged violations of his federal civil rights, and also on various state law grounds. The district court granted summary judgment in favor of all defendants as to the federal claims and then declined to exercise supplemental jurisdiction over the state law claims, dismissing them without prejudice. This timely appeal followed. We have jurisdiction pursuant to 28 U.S.C. §§ 1291, and we affirm.

I. BACKGROUND

This case arises out of the investigation and prosecution of Devereaux for alleged sexual abuse of foster children living in his home, an investigation that mushroomed into a sexual abuse "witch hunt" in which 43 adults were charged with over 29,000 counts of sexual molestation. We summarize the pertinent facts only briefly. The facts are set forth in detail in the three-judge panel opinion. See Devereaux v. Perez, 218 F.3d 1045, 1047-51 (9th Cir.), reh'g en banc granted , 235 F.3d 1206 (9th Cir. 2000) ("Devereaux I").

On August 3, 1994, Detective Robert Ricardo Perez of the Wenatchee, Washington, Police Department interviewed A.R., a foster child of Devereaux's, to determine whether A.R. was being sexually abused by Devereaux. A.R. initially denied that she was being abused but, upon further questioning, went on to tell Perez that she had been both a victim of and a witness to sexual abuse by Devereaux. On this basis, Perez brought Devereaux to the police station for questioning. Perez interviewed Devereaux about the alleged abuse, and Devereaux denied that he had sexually abused any of his foster children.

While Perez was interviewing Devereaux, DefendantAppellee Linda Wood, an employee of the Washington Department of Social and Health Services ("DSHS"), arrived at the police station with A.S., another of Devereaux's foster children. Perez briefly interrupted his interview with Devereaux to talk to A.S., who denied that there was any sexual abuse taking place in the Devereaux home. Perez then finished his interview with Devereaux and had him booked on one count of rape of a child in the third degree, on the basis of the alleged abuse of A.R.

Later on the same day, Perez also interviewed two more of Devereaux's foster children and, with Wood, conducted a lengthy second interview of A.S. This interview lasted from 5:00 p.m. to 11 p.m. In it, A.S. repeatedly denied having been sexually abused by Devereaux. After six hours of questioning, however, she finally changed her story and said that he had abused her. Perez then had Devereaux booked for the rape and molestation of A.S.

From there the investigation grew and the accusations spread. Roughly one year later, the felony charges against Devereaux were dropped in exchange for his plea of guilty to two misdemeanor counts -one count of rendering criminal assistance and one count of fourth-degree assault (for having spanked one of his foster children). The conditions of his sentence prohibited him from having contact with certain children, from being a foster parent for two years, and from being employed in a field that caters to or has regular contact with minor children.

Devereaux then commenced this action under 42 U.S.C. §§ 1983, naming the following parties as defendants: Perez; Wood; DSHS; the City of Wenatchee; Timothy David Abbey, Laurie Alexander, and Kate Carrow, all of whom were employees of DSHS; Kenneth Badgley, in his official capacity as police chief for the Wenatchee Police Department; and Earl Tilly, the Wenatchee Public Safety Commissioner. Devereaux alleged violations of his federal rights and also brought several state law claims.

The defendants moved for summary judgment on the §§ 1983 claim, and the district court granted their motions. It declined to exercise supplemental jurisdiction over the state law claims, dismissing them without prejudice to their being prosecuted in state court. See 28 U.S.C.§§ 1367(c). This timely appeal followed. A divided panel of this court affirmed the district court. See Devereaux I, 218 F.3d at 1045. We subsequently granted rehearing en banc. 235 F.3d at 1206.

Pursuant to a settlement agreement, Devereaux's appeal with respect to Perez and Badgley was dismissed with prejudice. In addition, Devereaux has not challenged the dismissal of the state law claims or the grant of summary judgment in favor of the City of Wenatchee, DSHS, or Tilly.

Consequently, the only matter now before this court is Devereaux's challenge to the grant of summary judgment in favor of Abbey, Alexander, Carrow, and Wood (hereinafter "Defendants") on the §§ 1983 claim. The district court granted summary judgment to Defendants on that claim on the basis of qualified immunity, stating that Devereaux has"not cite[d], nor has this Court's research revealed, case law to suggest that any of the State Defendants violated Plaintiff's clearly established rights based upon the evidence in the record."

II. STANDARD OF REVIEW

We review a grant of summary judgment de novo. Weiner v. San Diego County, 210 F.3d 1025, 1028 (9th Cir. 2000). Viewing the evidence in the light most favorable to the nonmoving party, we must determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc).

III. DISCUSSION

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 "[f]rom 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 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. See 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.").

Undertaking the first step of the two-step qualified immunity inquiry, we are persuaded 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. Perhaps 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 pre-existing 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...

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