Karam v. City of Burbank
| Citation | 352 F.3d 1188 |
| Decision Date | 08 December 2003 |
| Docket Number | No. 02-56220.,No. 02-55954.,02-55954.,02-56220. |
| Parties | Theresa KARAM, Plaintiff-Appellant, v. CITY OF BURBANK, a municipality; Burbank Police Department; Miranda, Burbank Police Officer, # 7734; Sindle, Burbank Police Officer # 7942; Gordon Bowers, Burbank Police Captain; David Newsham, Chief of Police; Burbank City Attorney; Gina Oh; Eric Hovatter; Juli Scott; Stacy Murphy; Robert Ovrom, Defendants-Appellees. Theresa Karam, Plaintiff-Appellant, v. City of Burbank, a municipality; Gordon Bowers, Burbank Police Captain; David Newsham, Chief of Police; Eric Hovatter; Juli Scott; Matt Miranda, Burbank Police Officer #7734; Stacy Murphy; Robert Ovrom; Shane Sindle, Burbank Police Officer # 7942, Defendants-Appellees, and Burbank Police Department; Burbank City Attorney; Gina Oh, Defendants. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Steven W. Kerekes, Beverly Hills, California, for the Appellant.
Richard R. Terzian, Kristin A. Pelletier, Gregg M. Audet, Los Angeles, California, for the Appellees.
Appeal from the United States District Court for the Central District of California; Ronald S.W. Lew, District Judge, Presiding, D.C. No. CV-01-00694-RSWL.
Before: David R. THOMPSON, Stephen S. TROTT, and Richard C. TALLMAN, Circuit Judges.
Theresa Karam regularly attended Burbank City Council meetings to express her opposition to the expansion of the Burbank airport. At one meeting, Burbank City Police Officer Shane Sindle told Karam, who had just entered the council chambers, that she would have to leave because the chambers were filled to capacity. Karam did not leave, and later addressed the Council. Officer Sindle submitted a police report of the incident, an investigation followed, and a misdemeanor complaint was eventually filed against Karam in state court. She was charged with delaying or obstructing a peace officer and trespassing. These charges were dismissed by the court. Karam then filed the present action against the City of Burbank, city officials, police officers and deputy city attorneys, alleging federal claims under 42 U.S.C. §§ 1983, 1985 and 1986, and state claims for malicious prosecution.
Karam voluntarily dismissed her claims under 42 U.S.C. §§ 1985 and 1986. The district court, pursuant to Federal Rule of Civil Procedure 12(b)(6), dismissed the § 1983 claims that were predicated on an alleged violation of the Fourth Amendment, as well as the state law malicious prosecution claims. Thereafter, the court granted summary judgment in favor of the defendants on the remaining § 1983 claims that were predicated on Karam's allegations that she had been prosecuted in retaliation for the exercise of her First Amendment rights. The court awarded attorney fees to the defendants pursuant to 42 U.S.C. § 1988. Karam appeals. We have jurisdiction pursuant to 28 U.S.C. § 1291.
In this appeal, Karam argues that the district court erred in dismissing her Fourth Amendment claims and granting summary judgment on her First Amendment retaliation claims. She does not challenge the district court's dismissal of her state law malicious prosecution claims. Although she alleged "malicious prosecution" in articulating her § 1983 claims, she relies upon specific alleged constitutional violations to support those claims.
We affirm the district court's Rule 12(b)(6) dismissal and its summary judgment in favor of the defendants. Karam's Fourth Amendment claims fail for lack of a "seizure," and her First Amendment retaliation claims fail for lack of causation.
Karam also appeals the district court's award of attorney fees. Although Karam's § 1983 claims did not survive beyond summary judgment, the claims were not frivolous. We reverse the award of attorney fees.
According to the facts alleged in Karam's first amended complaint, and the facts as to which there is no dispute, Karam entered the council chambers only after others had left. After she entered, Sindle told her she was trespassing, but he did not detain or arrest her. Two days later, with Officer Sindle's report in hand, detective Matthew Miranda telephoned Karam to further investigate the case. He also interviewed other witnesses, and submitted his report.
Deputy City Attorney Gina Oh reviewed the Sindle and Miranda reports and, apparently with some input from Deputy City Attorneys Eric Hovatter and Juli Scott, filed a misdemeanor complaint against Karam. The complaint charged Karam with delaying or obstructing a peace officer in the performance of his duties (California Penal Code § 148) and trespassing (California Penal Code § 602(n)). Detective Miranda telephoned Karam and told her she had to turn herself in or be arrested.
Karam appeared at the Burbank Municipal Court and signed an Own-Recognizance Release Agreement ("OR release"). The OR release required Karam to obtain permission from the court before leaving the state of California. It also required her to appear in court three weeks hence (presumably for arraignment or trial) and "at all other times and places ordered by the court." Karam filed a demurrer to the trespassing charge, and the court dismissed that charge prior to trial. At trial, it turned out that Miranda had falsely stated in his report that Karam admitted violating Officer Sindle's order; the court then dismissed the charge of delaying or obstructing a peace officer.
Karam then filed the present action against the City of Burbank, Mayor Stacy Murphy, City Manager Robert Ovrom Officer Shane Sindle, Detective Matthew Miranda, Police Captain Gordon Bowers, Police Chief David Newsham, and City Attorneys, Gina Oh, Eric Hovatter and Juli Scott. Karam asserted claims under 42 U.S.C. § 1983 for what she contended was a violation of the Fourth Amendment caused by her alleged unlawful seizure. She also asserted a violation of the First Amendment caused by what she alleged was her retaliatory prosecution for the exercise of her free speech rights. In addition, she alleged claims under 42 U.S.C. §§ 1985 and 1986 (), and state law claims for malicious prosecution.
Pursuant to Federal Rule of Civil Procedure 12(b)(6), the district court dismissed Karam's § 1983 claims predicated on the alleged violation of the Fourth Amendment. The court concluded that Karam had never been arrested, and the conditions of her OR release did not amount to a Fourth Amendment seizure. Karam's state law malicious prosecution claims were dismissed because, inter alia, they were barred by California Government Code §§ 821.6 and 815.2.1 The deputy city attorneys were dismissed from all of Karam's claims on the ground they were entitled to absolute immunity.
The defendants then moved for summary judgment on the § 1983 claims that were predicated upon what Karam alleged to have been her retaliatory prosecution in violation of the First Amendment. The court granted summary judgment in favor of the defendants, concluding there was no evidence that the individual defendants had any retaliatory motive as to Karam's prosecution, nor was her prosecution instigated pursuant to any custom, policy or practice attributable to the City or any policy-making person associated with it. The court awarded attorney fees to the defendants pursuant to 42 U.S.C. § 1988, determining that Karam's claims were "frivolous, unreasonable and groundless" and that she had pursued the litigation after this became clear.
We review de novo a district court's dismissal under Federal Rule of Civil Procedure 12(b)(6), accepting as true all allegations of fact in a well-pleaded complaint and construing those facts in the light most favorable to the plaintiff. Zimmerman v. City of Oakland, 255 F.3d 734, 737 (9th Cir.2001). A dismissal under Rule 12(b)(6) is appropriate if the plaintiff "can prove no set of facts in support of [her] claim which would entitle [her] to relief." Id. (citation omitted).
We also review de novo a district court's summary judgment. See Oliver v. Keller, 289 F.3d 623, 626 (9th Cir.2002). We review for abuse of discretion a district court's award of attorney fees pursuant to 42 U.S.C. § 1988. See Elks Nat'l Found. v. Weber, 942 F.2d 1480, 1485 (9th Cir.1991).
We first consider whether the conditions of Karam's OR release — requiring that she obtain permission of the court before leaving the state and that she make court appearances — amounted to a seizure under the Fourth Amendment. We conclude they did not.
There is a division of circuit authority as to what may constitute a seizure under the Fourth Amendment in the context of pretrial release. Some courts have held that a seizure occurs only when there is an actual detention. See, e.g., Riley v. Dorton, 115 F.3d 1159, 1164 (4th Cir.1997) (); Wilkins v. May, 872 F.2d 190, 194 (7th Cir.1989) (same). Other circuits have concluded that some pre-trial release restrictions may qualify as a seizure. See Evans v. Ball, 168 F.3d 856, 860-61 (5th Cir.1999) (); Gallo v. City of Philadelphia, 161 F.3d 217, 224-25 (3d Cir.1998) (same); Murphy v. Lynn, 118 F.3d 938, 942, 946 (2d Cir.1997) (same).
In this circuit we have held, not surprisingly, that a Fourth Amendment seizure occurs when a person is held in custody by arresting officers. See Fontana v. Haskin, 262 F.3d 871, 879 (9th Cir.2001). We have not addressed the question whether, absent an arrest, a seizure may occur by virtue of restrictions incident to pretrial release. However, even if a seizure under the Fourth Amendment conceivably could occur as a result of some combination of pretrial release restrictions, no such seizure occurred here.
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