Brower v. Inyo County
| Decision Date | 26 June 1987 |
| Docket Number | No. 85-2857,85-2857 |
| Citation | 817 F.2d 540 |
| Parties | Georgia BROWER, individually and as administrator of the Estate of William James Caldwell (Brower); William James Caldwell (Brower): Decedent, Scott Daniel King, a minor, Renee King, individually and as Guardian ad litem for Scott Daniel King, Plaintiffs-Appellants, v. COUNTY OF INYO, Inyo County Sheriff's Department, Donald Dorsey, Craig Oyster, Reginal Sides, James M. Holmgren, Missouri Nebraska Express and Tractor Lease, Inc., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Robert G. Gilmore, Fresno, Cal., and Craig A. Diamond, Grass Valley, Cal., for plaintiffs-appellants.
David H. Bent, Fresno, Cal., for defendants-appellees, James N. Holmgren, Missouri Nebraska Exp. and Tractor Lease, Inc.
Dennis L. Myers, Independence, Cal., for defendants-appellees Inyo County, Inyo County Sheriff's Dept., Donald Dorsey, Craig Oyster and Reginal Sides.
Before CHOY, GOODWIN and PREGERSON, Circuit Judges.
Appeal from the United States District Court for the Eastern District of California.
William James Caldwell (Brower) died in a collision between an automobile he was driving and a truck employed as a roadblock by the Inyo County police. Brower's mother, as representative of Brower's estate, brought an action pursuant to 42 U.S.C. Sec. 1983 alleging violations of Brower's constitutional rights. The mother and other family members also asserted liability under state law for negligence and wrongful death. The district court dismissed the nongovernmental defendants from the action and then dismissed the complaints against the governmental defendants, effectively dismissing the action. Plaintiffs appeal.
At approximately 11:30 p.m., on October 23, 1984, the decedent was driving southbound on Highway 395 pursued by an Inyo County Deputy Sheriff, Craig Oyster. Deputy Oyster believed Brower to be in possession of a stolen automobile; a felony under the law of the State of California. The pursuit continued at high speeds over a total distance of approximately twenty miles. At some point during the pursuit, Oyster radioed ahead to establish a roadblock.
The roadblock was set up by Deputy Reginal Sides with the assistance of a truck driver, James M. Holmgren, employed by Missouri-Nebraska Express. Holmgren was directed to place the tractor-trailer within his control across the highway to block both lanes of the two-lane highway. Sides then parked his own police vehicle 200 feet ahead of the tractor-trailer between it and the approaching Brower. He directed the headlights of his vehicle toward the approach path of Brower. Some time later, Brower drove past the side of Sides' police vehicle at a high rate of speed and slammed into the tractor-trailer rig. Brower died shortly after impact. This litigation followed.
As a preliminary matter, we must determine whether we have subject matter jurisdiction.
We have jurisdiction over appeals from "final decisions" of the district courts. 28 U.S.C. Sec. 1291. In an action involving multiple defendants, the dismissal of the complaint only, without dismissal of the action, is not a final judgment. Therefore, ordinarily, an order dismissing a complaint but not the underlying action, will not support jurisdiction under 28 U.S.C. Sec. 1291. 1 California v. Harvier, 700 F.2d 1217, 1218 (9th Cir.), cert. denied, 464 U.S. 820, 104 S.Ct. 82, 78 L.Ed.2d 92 (1983); Scanlon v. Atascadero State Hospital, 677 F.2d 1271, 1272 (9th Cir.1982).
It is clearly the better practice to obtain a final judgment before commencing an appeal in the courts of appeals. 2 However In supplemental briefs addressed to the question, counsel have persuaded us that the district court, by dismissing the nongovernmental defendants outright and dismissing the remaining causes of actions against the governmental defendants, effectively dismissed the action against all the defendants. While this kind of wasted time should not be billed in any ensuing claim for attorney fees, the county has not been prejudiced. Accordingly, we conclude that the district court's dismissals support our jurisdiction under 28 U.S.C. Sec. 1291.
we have accepted jurisdiction on the basis of an order dismissing a complaint when the record has indicated "special circumstances." Firchau v. Diamond National Corp., 345 F.2d 269, 270-71 (9th Cir.1965). We have also accepted jurisdiction when it is "clear" that the trial court found that "the action could not be saved by any amendment of the complaint which the plaintiff could reasonably be expected to make." California, 700 F.2d at 1218, (quoting Marshall v. Sawyer, 301 F.2d 639, 643 (9th Cir.1962)). See also Hoohuli v. Ariyoshi, 741 F.2d 1169, 1171 n. 1 (9th Cir.1984) (where we accepted jurisdiction (order dismissing complaint) because "the district court intended to dispose of the action"). See generally 9 J. Moore, Moore's Federal Practice p 110.13 (2d ed. 1986 and 1985-86 Supp.)
The fourteenth amendment due process claim.
The plaintiffs contend that the use of the roadblock was egregious police misconduct violating Brower's fourteenth amendment due process rights. The district court held, as a matter of law, that the roadblock did not violate Brower's due process rights. This ruling is challenged on both substantive and procedural grounds.
The nature of a so-called "substantive" due process claim in the police brutality context is outlined in Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). In Rochin, the court reversed a conviction that had been partially based on evidence obtained by subjecting petitioner to a stomach pump while in police custody. The court reasoned that an individual's undefined substantive rights include the right to be free from governmental actions that "offend those canons of decency and fairness which express the notions of justice of English-speaking peoples even toward those charged with the most heinous offenses." Id. at 169, 72 S.Ct. at 208. While the court did not articulate specific standards which identify police conduct violative of "substantive due process," it did state that such violations exist where conduct "shocks the conscience" or constitutes force that is "brutal" and offends "even hardened sensibilities." Id. at 172-73, 72 S.Ct. at 209-10. See also Palko v. Connecticut, 302 U.S. 319, 325, 58 S.Ct. 149, 152, 82 L.Ed. 288 (1937). 3
In Johnson v. Glick, 481 F.2d 1028 (2d Cir.), cert. denied, 414 U.S. 1033, 94 S.Ct. 462, 38 L.Ed.2d 324 (1973), Judge Friendly, speaking for the Second Circuit, articulated useful standards for substantive due process violations. Starting with the premise that violations of substantive due process by law enforcement must be more egregious than simple tort actions, he wrote that:
[I]n determining whether the constitutional line has been crossed, a court must look to such factors as the need for the application of force, the relationship between the need and the amount of force that was used, the extent of the injury inflicted, and whether force was applied in a good faith effort to maintain and restore discipline or maliciously and sadistically for the very purpose of causing harm.
In Meredith v. State of Arizona, 523 F.2d 481, 484 (9th Cir.1975), we adopted the In Rutherford v. City of Berkeley, 780 F.2d 1444 (9th Cir.1986), we applied the Meredith criteria and held that allegations of an unprovoked police assault--including repeatedly punching and kicking an individual in custody--stated a claim. See also Johnson v. Barker, 799 F.2d 1396, 1400 (9th Cir.1986) (); Escamilla v. City of Santa Ana, 796 F.2d 266, 268 (9th Cir.1986) (); Gaut v. Sunn, 792 F.2d 874, 875 (9th Cir.1986) ().
Johnson analysis. In Meredith, a claim arising out of an alleged prison beating by state officials, we stated that conduct violates substantive due process when it can fairly be characterized as "intentional, unjustified, brutal, and offensive to human dignity." Id. at 484
The first amended complaint asserts that specific factors in the creation and use of the roadblock by the Inyo County police violated substantive due process. In particular, paragraph 21 of the complaint alleges that the defendants "effectively concealed said truck [the tractor-trailer roadblock] from decedent's view by parking same behind a curve, failing and refusing to illuminate same and "blinding" decedent by parking a police vehicle in the center of the highway between said truck and decedent's approaching vehicle." For Rule 12 purposes we treat these allegations as true only because the district court dismissed for failure to state a claim. Gaut, 792 F.2d at 875. The allegations in paragraph 21 contain little more than bare conclusions, but if not sham or frivolous, they state a claim for violation of substantive due process. The allegations plead more than garden variety negligence in the construction of the roadblock.
The fourteenth amendment procedural due process claim.
The plaintiffs also contend that the roadblock violated Brower's fourteenth amendment procedural due process rights. 4 The district court, relying on Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), dismissed this claim as well as the other attempts to plead that the officers deprived Brower of his life without due process of law.
The existence of remedies in the state courts or administrative agencies for deprivations of procedural rights does not necessarily bar otherwise valid claims brought under section 1983. Parratt bars recovery for property losses caused by random and unauthorized...
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