Awabdy v. City of Adelanto

• Decision Date: 20 May 2004
• Docket Number: No. 02-57118.,02-57118.
• Citation: 368 F.3d 1062
• Parties: Esau AWABDY, Plaintiff-Appellant, v. CITY OF ADELANTO; Scott Burnell; Ted Hartz; Richard Althouse, Michael Sakamoto, Does I-X, Inclusive, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

368 F.3d 1062

Esau AWABDY, Plaintiff-Appellant, v. CITY OF ADELANTO; Scott Burnell; Ted Hartz; Richard Althouse, Michael Sakamoto, Does I-X, Inclusive, Defendants-Appellees.

No. 02-57118.

United States Court of Appeals, Ninth Circuit.

Submitted February 4, 2004.^*

Filed May 20, 2004.

COPYRIGHT MATERIAL OMITTED

Stanley W. Hodge, Victorville, CA, for the plaintiff-appellant.

Marguerite P. Battersby, Harry C. Carpelan, San Bernardino, CA, for the defendants-appellees.

Before: REINHARDT, THOMPSON, and WARDLAW, Circuit Judges.

REINHARDT, Circuit Judge:

Two weeks before the 2000 election, Esau Awabdy suffered a significant setback in his campaign for another term on the City Council of Adelanto when the San Bernardino County District Attorney charged him with embezzling public funds. Awabdy pled not guilty prior to election day and, over one year later, the Superior Court granted a motion by a deputy District Attorney to dismiss the charge in the interests of justice. By then, however, Awabdy was no longer serving on the City Council, for he had been soundly defeated at the polls.

After the charge was dismissed, Awabdy filed this action under 42 U.S.C. § 1983. Awabdy alleges that the criminal proceedings were initiated on the basis of false accusations and conspiratorial conduct by several Adelanto city officials who sought to deprive him of his First, Thirteenth, and Fourteenth Amendment rights. The district court granted the defendants' motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). We have jurisdiction under 28 U.S.C. § 1291, and we reverse as to all claims with the exception of those relating to the Thirteenth Amendment, which we affirm.

I. BACKGROUND

In this appeal of the district court's dismissal under Rule 12(b)(6), we assume that the factual allegations of Awabdy's complaint are true and construe them in the light most favorable to him. Zimmerman v. City of Oakland, 255 F.3d 734, 737 (9th Cir.2001). The facts, so construed, are as follows.

As a member of the Adelanto City Council, Awabdy raised questions about the expenditure of municipal funds and took positions that placed him in conflict with other officials in the San Bernardino County municipality. A conspiracy formed to use unconstitutional means to defeat him when he ran for reelection. It included Ted Hartz and Richard Althouse, also city councilmembers; Scott Burnell, a police officer; and Michael Sakamoto, the city manager (collectively "the defendants"). In addition to their political disagreements, another motive underlay the conspirators' unconstitutional scheme for bringing about Awabdy's removal from office. They made it known that they intended to "get" him because he was of "Arabic extraction."

On the basis of the conspirators' false accusations that Awabdy had embezzled public funds, the San Bernardino County District Attorney's office commenced an investigation in May 1999. On October 24, 2000, just two weeks before the November election, the District Attorney charged Awabdy with embezzling public funds in violation of Cal.Penal Code § 504.¹ Awabdy pled not guilty on October 31 and was released on his own recognizance. The election occurred a week later. Awabdy received fewer votes than any of the thirteen other candidates who were running for the three at-large seats on the Adelanto City Council. In contrast, the two other incumbents were reelected.²

In December 2000, Awabdy was held to answer on the embezzlement charge following a preliminary hearing. Over one year later, the state Superior Court granted a motion by a deputy District Attorney to dismiss the criminal charge against Awabdy in the interests of justice, pursuant to Cal.Penal Code § 1385. Awabdy commenced this action in May 2002.

II. ANALYSIS

We review de novo the district court's order granting the defendants' Rule 12(b)(6) motion. Zimmerman, 255 F.3d at 737. Dismissal under Rule 12(b)(6) is appropriate only if it appears beyond doubt that Awabdy can prove no set of facts consistent with the allegations set forth in his complaint that would entitle him to relief. Id.; Am. Family Ass'n, Inc. v. City and County of San Francisco, 277 F.3d 1114, 1120 (9th Cir.2002).

We reverse and remand for two reasons. First, the district court misinterpreted our cases regarding the constitutional tort of malicious prosecution under § 1983. Second, it overlooked Awabdy's direct claims under the First and Fourteenth Amendment, which, although they are closely related to the malicious prosecution claim in a number of respects, require independent consideration.

A. Malicious Prosecution under § 1983

A plaintiff may bring an action under 42 U.S.C. § 1983 to redress violations of his "rights, privileges, or immunities secured by the Constitution and [federal] laws" by a person or entity, including a municipality, acting under the color of state law. 42 U.S.C. § 1983; Monell v. Dep't of Social Servs., 436 U.S. 658, 690-95, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). In order to prevail on a § 1983 claim of malicious prosecution, a plaintiff "must show that the defendants prosecuted [him] with malice and without probable cause, and that they did so for the purpose of denying [him] equal protection or another specific constitutional right." Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir.1995). Malicious prosecution actions are not limited to suits against prosecutors but may be brought, as here, against other persons who have wrongfully caused the charges to be filed. Galbraith v. County of Santa Clara, 307 F.3d 1119, 1126-27 (9th Cir.2002).

The district court concluded that the allegations in Awabdy's complaint did not meet the lack-of-probable-cause and intent-to-deprive requirements. We disagree.

1. Lack of Probable Cause

The district court determined that it was beyond doubt that Awabdy could prove no set of facts consistent with the allegations in his complaint that would establish that he was prosecuted without probable cause. Its reason was that the Superior Court held him to answer on the embezzlement charge after a preliminary hearing. We look to California law to determine the legal effect of the state court's action because we have incorporated the relevant elements of the common law tort of malicious prosecution into our analysis under § 1983. Usher v. City of Los Angeles, 828 F.2d 556, 562 (9th Cir.1987); see also Heck v. Humphrey, 512 U.S. 477, 483, 114 S.Ct. 2364, 129 L.Ed.2d 383 (1994).

In California, as in virtually every other jurisdiction, it is a long-standing principle of common law that a decision by a judge or magistrate to hold a defendant to answer after a preliminary hearing constitutes prima facie — but not conclusive — evidence of probable cause. See Holliday v. Holliday, 123 Cal. 26, 55 P. 703, 704 (1898); Diemer v. Herber, 75 Cal. 287, 17 P. 205, 206-07 (1888); Scannell v. County of Riverside, 152 Cal.App.3d 596, 199 Cal.Rptr. 644, 651-53 (1984); De La Riva v. Owl Drug Co., 253 Cal.App.2d 593, 61 Cal.Rptr. 291, 293-95 (1967); Garfield v. Peoples Finance & Thrift Co., 24 Cal.App.2d 144, 74 P.2d 1061, 1063 (1937); Foster v. Banks, 112 Cal.App. 622, 297 P. 106, 107 (1931); 5 Witkin, Summary of Cal. Law, Torts § 427 (9th ed.1998) (holding defendant to answer is prima facie evidence of probable cause; judgment of conviction is conclusive evidence).

Awabdy contends that the district court erred because it did not afford him an opportunity to rebut, or overcome, the prima facie finding. We agree. Among the ways that a plaintiff can rebut a prima facie finding of probable cause is by showing that the criminal prosecution was induced by fraud, corruption, perjury, fabricated evidence, or other wrongful conduct undertaken in bad faith. See, e.g., Williams v. Hartford Ins. Co., 147 Cal.App.3d 893, 195 Cal.Rptr. 448, 452 (1983); Rupp v. Summerfield, 161 Cal.App.2d 657, 326 P.2d 912, 915-16 (1958); Murphy v. Lynn, 118 F.3d 938, 948 (2d Cir.1997). See also Restatement (Second) of Torts § 663; H.D. Warren, Annotation, Malicious prosecution: commitment, binding over, or holding for trial by examining magistrate or commissioner as evidence of probable cause, 68 A.L.R.2d 1168 (1993); 54 C.J.S. Malicious Prosecution § 33 (2003); 52 Am.Jur.2d Malicious Prosecution § 62; W. Keeton et al., Prosser and Keeton on the Law of Torts § 119, at 881 (5th ed.1984). Accordingly, the Superior Court's decision to hold Awabdy to answer after a preliminary hearing would not prevent him from maintaining his § 1983 malicious prosecution claim if he is able to prove the allegations in his complaint that the criminal proceedings were initiated on the basis of the defendants' intentional and knowingly false accusations and other malicious conduct.

We reject the defendants' argument that they should be shielded from liability because it was the San Bernardino County District Attorney's office — and not they — who prosecuted Awabdy. Ordinarily, the decision to file a criminal complaint is presumed to result from an independent determination on the part of the prosecutor, and thus, precludes liability for those who participated in the investigation or filed a report that resulted in the initiation of proceedings. Smiddy v. Varney, 665 F.2d 261, 266-68 (9th Cir.1981). However, the presumption of prosecutorial independence does not bar a subsequent § 1983 claim against state or local officials who improperly exerted pressure on the prosecutor, knowingly provided misinformation to him, concealed exculpatory evidence, or otherwise engaged in wrongful or bad faith conduct that was actively instrumental in causing the initiation of legal proceedings. See Galbraith, 307 F.3d at 1126-27 (holding that plaintiff's allegations that a coroner's knowingly or recklessly false statements led to his arrest and prosecution were sufficient to state a § 1983 claim); Harris v. Roderick, 126 F.3d 1189, 1198 (9th Cir.1997) (holding that a probable cause determination "that is ...