Gillibeau v. City of Richmond

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Citation417 F.2d 426
Docket NumberNo. 23062.,23062.
PartiesJohn GILLIBEAU and Doris Gillibeau, Appellants, v. CITY OF RICHMOND, a municipal corporation, Charles E. Brown, Elmer Evans, Deputy Marshal, Ervin R. Martin, Deputy Marshal, William H. Zeiler, Walter Laughlin, Donald Workman, James P. Kenny, Chairman of the Board of Supervisors, and Does One through Eighty, Appellees.
Decision Date13 October 1969

R. Jay Engel and Hugh B. Miller of Jarvis, Miller & Stender, San Francisco, Cal., for appellants.

Tining & Delap, Richmond, Cal., Hagar, Crosby & Rosson, Oakland, Cal., Bishop, Murray & Barry, San Francisco, Cal., for appellees.

Before HAMLEY and ELY, Circuit Judges, and SMITH, District Judge.*

HAMLEY, Circuit Judge.

John and Doris Gillibeau, on behalf of themselves and "all other negroes similarly situated," brought this civil rights action for damages, a declaratory judgment, and declaratory relief against seven named individuals and "Does One through Eighty." The named defendants still in the case are Charles E. Brown, a Richmond, California city policeman, Elmer Evans, Ervin R. Martin and William H. Zeiler, officers of the Municipal Court of Richmond, James P. Kenny, a member of the Richmond Board of Supervisors,1 and Walter Laughlin and Donald Workman, the owners of certain property located at 406 Maine Avenue, Richmond. In a second claim, plaintiffs seek damages from defendants Laughlin and Workman for breach of contract. Plaintiffs last set forth their claims in a second amended complaint (erroneously designated first amended complaint), filed on February 14, 1968.

All the named defendants moved for a more definite statement and to dismiss the second amended complaint for failure to comply with the requirement of Rule 8(a) (2), Federal Rules of Civil Procedure, that pleadings "contain * * * a short and plain statement of the claim showing that the pleader is entitled to relief." All the named defendants except Brown also moved to dismiss the action for failure to state a claim upon which relief can be granted. The district court, after a hearing, entered an order dismissing the action as to all named defendants except Brown for failure to state a claim. In the same order, the action was dismissed as to Brown for failure to comply with Rule 8(a) (2). This appeal followed.2

With regard to the civil rights claim, plaintiffs alleged that, on August 4, 1966, the Municipal Court of Richmond issued an order to have them evicted from their residence at 406 Maine Street, in Richmond. According to the second amended complaint, in connection with defendants' action in obtaining and executing this order, and in connection with plaintiffs' attempt to obtain a withdrawal of that order, defendants engaged in a number of activities which deprived plaintiffs and others similarly situated of specified rights under the Constitution.

Some of the allegations concerning the activities and conduct of these defendants did not relate to the deprivation of a constitutional right, or were so lacking in factual substance that they were properly disregarded by the district court. However, there were allegations with respect to three kinds of activity which, in our view, are not subject to these objections. Plaintiffs alleged that each of the named defendants, under color of city and county law, jointly and severally, separately and cooperatively, did the following acts "prior and subsequent to and including August 8, 1966 and August 11, 1966":

"(a) Conduct and accomplish an unreasonable search and seizure of the person and property of plaintiffs at 406 Maine Street, City of Richmond, County of Contra Costa, State of California.
"(b) Stopped, prevented and impeded plaintiffs\' right to assemble as guaranteed by the First and Fourteenth Amendments to the Constitution of the United States in that defendants and each of them deprived, discouraged, impeded and forcefully prevented plaintiffs and each of them from organizing and assembling for the purpose of presenting to the appropriate authorities claimed irregularities in living conditions existing at 406 Maine Street in the City of Richmond * * * and further deprived, discouraged, impeded and forcefully prevented plaintiffs and each of them from making known and presenting claimed violations of the law existing on the premises known as 406 Maine Street * * *
* * * * * *
"(e) Exercised, used and conducted excessive force and zeal in the enforcing of an order issued on August 4, 1966 by the Municipal Court of the City of Richmond, which said order itself was void as a violation of constitutional rights guaranteed to plaintiffs. * * *"

These allegations, in our opinion, are sufficient to raise issues of fact as to whether plaintiffs were deprived of constitutional rights which may be vindicated under the applicable provisions of the Civil Rights Act, 42 U.S.C. §§ 1983, 1985(3) (1964).3 But defendants argue that other allegations of the second amended complaint provided them with defenses requiring dismissal of the action for failure to state a civil rights claim.

Plaintiffs alleged that defendants Evans, Martin and Zeiler were officers of the Municipal Court of Richmond and at all times were acting within the scope and course of their agency. They also allege that Evans, Martin and Zeiler used excessive force and zeal in enforcing the eviction order of the Municipal Court. These defendants argue that the described allegations entitle them to quasi-judicial immunity.

If the described allegations necessarily imply that, as to all of their acts complained of, these three defendants acted at the direction of a judge or judges to whom they were immediately and directly responsible, they would have quasi-judicial immunity from liability for damages in this civil rights suit. See Haldane v. Chagnon, 9 Cir., 345 F. 2d 601, 604.

We are not convinced, however, that such implicit allegations may be read into this pleading. Plaintiffs have not alleged that Evans, Martin and Zeiler were immediately and directly responsible to a judge of the Municipal Court nor that each of their acts in carrying out the eviction order was performed solely at the direction of such a judge.4 Absent assertions of this character, the allegation that these three defendants were acting within the scope and course of their agency as officers of the court may have been intended only as an assertion that they were acting under color of state law.

Later development of the facts as a result of additional pleadings, pretrial discovery, or trial may establish a basis for dismissing the damage claim as to Evans, Martin and Zeiler on the ground of quasi-judicial immunity or for some other reason. In our opinion the second amended complaint, standing alone, does not provide a basis for such action.

Plaintiffs also allege that defendant Kenny was a member of the Richmond Board of Supervisors and that at all times referred to in this pleading he was acting within the scope and course of his duties on that board. Kenny argues that these allegations entitle him to legislative immunity.

If these allegations necessarily imply that members of the Board of Supervisors of Richmond (or Contra Costa County) perform only legislative functions and that, in all of the activities complained of by plaintiffs, Kenny was engaged only "in the sphere of legitimate legislative activity," then he enjoys legislative immunity from liability for damages in this civil rights suit. See Dombrowski v. Eastland, 387 U.S. 82, 85, 87 S.Ct. 1425, 18 L.Ed.2d 577; Tenney v. Brandhove, 341 U.S. 367, 376, 71 S.Ct. 783, 95 L.Ed. 1019. In our view, however, no such implication arises from these allegations. We therefore hold that they do not provide a basis for dismissing the damage claim as to Kenny.

Defendants Laughlin and Workman, who were the owners of the property in question, argued, in effect, that no civil rights claim was stated as to them under 42 U.S.C. § 1983 because it was not alleged that they were either state officials or that they were acting under color of any state or territorial law.

It is true that the second amended complaint does not allege that Laughlin and Workman were state officials. While the complaint alleges that all named defendants, including Laughlin and Workman, were agents, servants and employees of the City of Richmond, we take it that this was an inadvertence. At the oral argument held on March 20, 1967, counsel for plaintiffs conceded that they could reach Laughlin and Workman under section 1983 only by proving that the latter had conspired with the other named defendants, who were state or local officials and who acted under color of state law in carrying out the activities complained of.

Suit may be brought against private citizens under section 1983 if a conspiracy is established between them and the state or local officials who clearly acted under color of state law. See Hoffman v. Halden, 268 F.2d 280, 298 (9th Cir. 1959). All of the elements of such a conspiracy must be set out plainly in the complaint. Id. at 294-296.

The only allegations in the second amended complaint of a conspiratorial relationship between these two defendants and the other named defendants with respect to the activities described in subparagraphs (a), (b) and (e) appear in paragraph 11, which states that all of the defendants acted "jointly and severally, separately and conspiratorily," and that they did "conspire" with each other. As indicated above, this is an inadequate allegation to establish a conspiratorial relationship and a motion to make more definite and certain in this regard would have been proper. No such motion was made.

In our opinion, the allegation as to a conspiracy was sufficient to defeat a motion to dismiss, absent any effort to obtain a more definite statement as to that matter. The rule that plaintiff's cause is not to be dismissed for failure to state a claim unless it appears without doubt that ...

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