648 F.3d 986 (9th Cir. 2011), 08-56283, Association for Los Angeles Deputy Sheriffs v. County of Los Angeles

Docket Nº:08-56283.
Citation:648 F.3d 986
Opinion Judge:PREGERSON, Circuit Judge:
Party Name:ASSOCIATION FOR LOS ANGELES DEPUTY SHERIFFS, in Its Representational Capacity, on Behalf of Its Members; Darrin Wilkinson; Lisa Brown Debs; Sean O'Donoghue; David Sherr, Plaintiffs-Appellants, v. COUNTY OF LOS ANGELES, a Municipal Corporation (also erroneously sued as the Los Angeles County Board of Supervisors, the Los Angeles County Civil Service
Attorney:Elizabeth J. Gibbons, Green & Shinee, Encino, CA, for the plaintiffs-appellants. Connie C. Almond (argued) and Jeffrey C. Freedman, Liebert Cassidy Whitmore, Los Angeles, CA, for the defendants-appellees.
Judge Panel:Before: HARRY PREGERSON, D.W. NELSON, and SANDRA S. IKUTA, Circuit Judges. Opinion by Judge PREGERSON; Partial Concurrence and Partial Dissent by Judge IKUTA. IKUTA, Circuit Judge, concurring in part and dissenting in part:
Case Date:August 12, 2011
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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648 F.3d 986 (9th Cir. 2011)

ASSOCIATION FOR LOS ANGELES DEPUTY SHERIFFS, in Its Representational Capacity, on Behalf of Its Members; Darrin Wilkinson; Lisa Brown Debs; Sean O'Donoghue; David Sherr, Plaintiffs-Appellants,

v.

COUNTY OF LOS ANGELES, a Municipal Corporation (also erroneously sued as the Los Angeles County Board of Supervisors, the Los Angeles County Civil Service Commission and the Los Angeles County Sheriff's Department); Gloria Molina, in her capacity as a Los Angeles County Supervisor; Yvonne Braithwaite Burke, in her capacity as a Los Angeles County Supervisor; Zev Yaroslavsky, in his capacity as a Los Angeles County Supervisor; Don Knabe, in his capacity as a Los Angeles County Supervisor; Michael D. Antonovich, in his capacity as a Los Angeles County Supervisor; Lynn Adkins, in his capacity as a Civil Service Commissioner; Vange Felton, in her capacity as a Civil Service Commissioner; Carol Fox, in her capacity as a Civil Service Commissioner; Z. Greg Kahwajian, in his capacity as a Civil Service Commissioner; Evelyn Martinez, in her capacity as a Civil Service Commissioner; Leroy Baca, individually and as Sheriff of the County of Los Angeles, Defendants-Appellees.

No. 08-56283.

United States Court of Appeals, Ninth Circuit.

August 12, 2011

Argued and Submitted Oct. 6, 2010.

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Elizabeth J. Gibbons, Green & Shinee, Encino, CA, for the plaintiffs-appellants.

Connie C. Almond (argued) and Jeffrey C. Freedman, Liebert Cassidy Whitmore, Los Angeles, CA, for the defendants-appellees.

Appeal from the United States District Court for the Central District of California, R. Gary Klausner, District Judge, Presiding. D.C. No. 2:08-cv-00238-RGK-FFM.

Before: HARRY PREGERSON, D.W. NELSON, and SANDRA S. IKUTA, Circuit Judges.

Opinion by Judge PREGERSON; Partial Concurrence and Partial Dissent by Judge IKUTA.

OPINION

PREGERSON, Circuit Judge:

This appeal concerns the requirements of due process when law enforcement officers charged with felonies are suspended without pay. We affirm in part and reverse in part the decision of the district court.

FACTUAL AND PROCEDURAL BACKGROUND 1

Plaintiffs Darrin Wilkinson, David Sherr, Lisa Brown Debs, and Sean O'Donoghue are four current or former Los Angeles County deputy sheriffs, joined by their union, the Association of Los Angeles Deputy Sheriffs (collectively, " Plaintiffs"). Defendants are the County of Los Angeles (the " County" ), the Los Angeles County Supervisors (the " Supervisors" ), the Los Angeles County Civil Service Commissioners (the " Civil Service Commissioners" ),

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and the Los Angeles County Sheriff (the " Sheriff" ) (collectively, " Defendants" ).

All four deputy sheriffs were charged with felonies. Plaintiff Wilkinson was charged in June 2002 with nine felony counts of falsifying police reports. Plaintiff Sherr was charged on June 11, 2003, with seven counts of workers' compensation insurance fraud, perjury, and grand theft. Plaintiff Debs was charged on June 27, 2004, with felony drunk driving. Plaintiff O'Donoghue was charged on June 3, 2002, with two counts of falsifying a police report, three counts of accessory after the fact to possession of narcotics for sale, one count of perjury, and one count of false imprisonment.

The four deputies were served by the Los Angeles County Sheriff's Department with letters of intent to suspend them. Plaintiffs responded in writing and denied the allegations against them, but were nonetheless suspended without pay. All four plaintiffs then requested post-suspension hearings before the Los Angeles County Civil Service Commission (the " Commission" ). The request was held in abeyance pending completion of the criminal proceedings and disciplinary action by the Sheriff's Department.

Ultimately, the criminal charges against plaintiffs Wilkinson and Debs were dropped, and plaintiffs Sherr and O'Donoghue were acquitted by juries. All four were reinstated from their suspensions and returned to paid status. 2 They continued to demand hearings before the Commission to contest the propriety of their suspensions after the fact.

Many months after their reinstatement from suspension, and before any post-suspension hearings were held, all four deputies were discharged from the Sheriff's Department, at least in part based on the allegations underlying the criminal charges.3 They all requested hearings on their discharges. These hearings were consolidated with the still-pending post-suspension hearings.

While waiting for their hearings on their suspensions and discharges, Wilkinson and Sherr were both granted disability retirement by the Los Angeles County Employee Retirement System. The date of retirement was set retroactively to the day after their discharge. This effectively converted Wilkinson and Sherr from discharged employees to retired employees. The Commission subsequently issued final decisions stating that it did not have jurisdiction over the appeals of retired deputies, including Wilkinson and Sherr. Neither Wilkinson nor Sherr ever received a post-suspension hearing.

Debs and O'Donoghue received post-suspension hearings. The Commission's hearing officer found that Debs's suspension and discharge were both improper because the allegations underlying the felony charge against her were untrue. The hearing officer recommended that the Commission reinstate Debs from her discharge and also restore the pay lost during her suspension. After hearing this recommendation, the Commission ordered Debs reinstated from her discharge, but denied Debs any back pay for the time she was

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suspended. The Commission held that Debs's suspension was proper because a felony charge, whether supported by valid allegations or not, was pending against her at the time the Sheriff's Department imposed her suspension.

As for O'Donoghue, the hearing officer issued a report recommending O'Donoghue's full reinstatement with back pay to the date of his discharge. The hearing officer also recommended that O'Donoghue receive back pay and benefits for the time he was suspended. After hearing the recommendation, the Commission ordered O'Donoghue reinstated from his discharge. Rather than reversing the suspension, however, the Commission directed the Sheriff, the Sheriff's Department, and the County to reconsider the decision to suspend O'Donoghue. They did not do so. O'Donoghue was not reimbursed for his lost pay and benefits for the time he was suspended.

Plaintiffs brought claims under 42 U.S.C. § 1983 in federal district court, alleging violations of their Fourteenth Amendment due process rights.4 Defendants filed a motion to dismiss. The district court granted the motion, holding that Plaintiffs had failed to state a claim against the County of Los Angeles, and that the individual defendants were entitled to qualified immunity. Plaintiffs appeal from that decision.

STANDARD OF REVIEW

A dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6) is reviewed de novo. Synagogue v. United States, 482 F.3d 1058, 1060 (9th Cir.2007). " When ruling on a motion to dismiss, we accept all factual allegations in the complaint as true and construe the pleadings in the light most favorable to the nonmoving party." Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir.2005). The court draws all reasonable inferences in favor of the plaintiff. Newcal Industries, Inc. v. Ikon Office Solution, 513 F.3d 1038, 1043 n. 2 (9th Cir.2008). " Dismissal is proper under Rule 12(b)(6) if it appears beyond doubt that the non-movant can prove no set of facts to support its claims." Adams v. Johnson, 355 F.3d 1179, 1183 (9th Cir.2004). This court also reviews de novo the district court's determination regarding qualified immunity. Robinson v. Prunty, 249 F.3d 862, 865-66 (9th Cir.2001).

DISCUSSION

I. Procedural Due Process

It is not disputed by Defendants that Plaintiffs have a constitutionally protected property interest in continued employment. Plaintiffs may not be deprived of that employment without due process of law. See Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 84 L.Ed.2d 494 (1985). Temporary suspensions, like terminations, are deprivations of employment that can implicate the protections of due process. See FDIC v. Mallen, 486 U.S. 230, 240, 108 S.Ct. 1780, 100 L.Ed.2d 265 (1988); Finkelstein v. Bergna, 924 F.2d 1449, 1451 (9th Cir.1991). " ‘ Once it is determined that due process applies, the question remains what process is due.’ " Mallen, 486 U.S. at 240, 108 S.Ct. 1780 (quoting Morrissey v. Brewer, 408 U.S. 471, 481, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)).

" [E]mployees who occupy positions of great public trust and high public visibility,

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such as police officers," can be temporarily suspended without any pre-suspension due process if felony charges are filed against them. Gilbert v. Homar, 520 U.S. 924, 932-34, 117 S.Ct. 1807, 138 L.Ed.2d 120 (1997); see also Mallen, 486 U.S. at 230, 108 S.Ct. 1780 (upholding suspension of indicted bank official without pre-suspension hearing). The felony charge " serve[s] to assure that the state employer's decision to suspend the employee is not ‘ baseless or unwarranted,’ in that an independent third party has determined that there is probable cause to believe the employee committed a serious crime." Gilbert, 520 U.S. at 934, 117 S.Ct. 1807 (quoting Mallen, 486 U.S. at 240, 108 S.Ct. 1780) (internal citation omitted).

However, the constitutionality of a suspension without any pre -suspension procedural due process depends on the availability...

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