Garmon v. Cnty. of L.A.

• Decision Date: 05 July 2016
• Docket Number: No. 12-55109,12-55109
• Citation: 828 F.3d 837
• Parties: Detrice Garmon, Plaintiff–Appellant, v. County of Los Angeles; Steve Cooley, individually and in his official capacity; Deputy DA Michelle Hanisee, individually and in her official capacity; Kaiser Permanente, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

828 F.3d 837

Detrice Garmon, Plaintiff–Appellant

v.County of Los Angeles; Steve Cooley, individually and in his official capacity; Deputy DA Michelle Hanisee, individually and in her official capacity; Kaiser Permanente, Defendants–Appellees.

No. 12-55109

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 2, 2016 Pasadena, California

Filed July 5, 2016

Brian K. Morris (argued) and Julia A. Vogelzang, Duane Morris LLP, San Diego, California, for Plaintiff–Appellant.

Millicent L. Rolon (argued), Principal Deputy County Counsel; Roger H. Granbo and Jennifer A.D. Lehman, Assistant County Counsel; John F. Krattli, County Counsel; Mary C. Wickham, Interim County Counsel; Los Angeles County Counsel, Los Angeles, California; for Defendants–Appellees County of Los Angeles, Steve Cooley and Michele Hanisee.

David P. Pruett (argued), Brenda M. Ligorsky, and Michael J. Trotter ; Carroll, Kelly, Trotter, Franzen, McKenna & Peabody, Long Beach, California; for Defendant–Appellee Southern California Permanente Medical Group.

Before: Milan D. Smith, Jr. and Jacqueline H. Nguyen, Circuit Judges, and Claudia Wilken,^** Senior District Judge.

OPINION

WILKEN, Senior District Judge:

Plaintiff-Appellant Detrice Garmon was an alibi witness in her son's murder trial.¹ Because she was scheduled to undergo brain surgery with an uncertain outcome, her deposition was taken pursuant to state court procedure. She authorized Defendant-Appellee Southern California Permanente Medical Group (“Kaiser”) to disclose to the prosecution medical records related to her brain tumor. The next day, Defendant-Appellee Los Angeles County Deputy District Attorney Michele Hanisee, the lead prosecutor, issued a subpoena duces tecum to Kaiser instead requesting all of Garmon's medical records. Hanisee provided a declaration in support of the application for the subpoena duces tecum, erroneously representing that Garmon was the murder victim in her son's trial. Garmon ultimately testified at her son's trial, and Hanisee used Garmon's medical records from Kaiser to undermine Garmon's credibility.

Garmon, acting pro se , filed a complaint in district court for monetary damages under 42 U.S.C. § 1983

and several state law causes of action against Hanisee and Kaiser, and against Defendants-Appellees Steve Cooley, the Los Angeles County District Attorney at the time of the trial, and the County of Los Angeles. Hanisee, Cooley and the County are referred to as the “County Defendants.” Garmon later filed a First Amended Complaint, which is the operative complaint. The court dismissed all causes of action against the County Defendants with prejudice and against Kaiser without prejudice.

We reverse in part and remand for further proceedings. Hanisee and Cooley are not entitled to absolute immunity for Hanisee's misrepresentations in her declaration supporting the application for the subpoena duces tecum. Further, the court abused its discretion by denying Garmon leave to amend her § 1983

claim against the County. The County Defendants are not entitled to the claimed state statutory immunity because the claims against them are not malicious prosecution claims. Finally, because we reverse the dismissal of certain federal claims, we reverse the district court's dismissal of state law claims against Kaiser.

I. Background

A. Underlying Facts

The release Garmon signed encompassed “Information Regarding Specific Injury or Treatment (from 1/08 to Present),” x-ray reports and “only information regarding tumor in pituitary gland

.”

Hanisee mailed a subpoena duces tecum to Kaiser with a cover letter, which erroneously stated that Garmon was the victim in a murder prosecution. Hanisee evoked a federal regulation under the Health Insurance Portability and Accountability Act (HIPAA) that permits disclosure without the consent or notification of the subject of the subpoena. The subpoena commanded Kaiser to produce the documents in its custody “described in the copy of the application for subpoena duces tecum attached hereto which is incorporated herein by reference.” The application attached to the subpoena requested “[a]ny and all medical records for DETRICE GARMON,” and explained that the “medical records will indicate the character and extent of the injuries inflicted upon DETRICE GARMON and are necessary to establish the elements of the charged crime.” The application provided that the statements contained therein were true and correct under penalty of perjury. Accordingly, Kaiser produced all of Garmon's medical records, not just those subject to Garmon's consent, and did not notify Garmon.

When Garmon testified at her son's trial, Hanisee “published all of [Garmon's] medical records that she had subpoenaed from Kaiser Permanente,” without redacting them, “for the sole purpose of discrediting [Garmon's] testimony.” Garmon's son was ultimately convicted of murder.

B. Procedural History

A magistrate judge issued a Report and Recommendation (R & R) on County Defendants' motion to dismiss; the court adopted it in full. The R & R concluded that, under Imbler v. Pachtman , 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976)

, Hanisee and Cooley were absolutely immune from suit in their personal capacities. Further, because they were representatives of the State, they could not be sued in their official capacities. With regard to the claim against the County, the R & R explained that Garmon alleged that Hanisee's improper conduct violated county policy; a § 1983 claim against a municipality such as a county requires that the misconduct be pursuant to county policy. The R & R recommended that, because amending her complaint to state the latter would necessarily contradict the operative complaint, leave to amend be denied.

Next, the R & R concluded that County Defendants were immune under California Government Code sections 821.6

and 815.2 from suit for Garmon's state law claims.

Finally, the R & R proposed the dismissal of the claims against Kaiser. It explained that there is no private cause of action under HIPAA, and that Kaiser was not amenable to suit under § 1983

for producing Garmon's records. Because Garmon alleged no federal cause of action against Kaiser, and because the R & R recommended dismissing the federal claims against County Defendants, the R & R recommended declining to exercise supplemental jurisdiction over Garmon's state law claims against Kaiser.

Garmon timely appealed.² We have jurisdiction under 28 U.S.C. §§ 1331

, 1367(a) and 1291.

II. Standards of Review

We review de novo a district court's dismissal of a complaint for absolute immunity. Olsen v. Idaho State Bd. of Med. , 363 F.3d 916, 922 (9th Cir. 2004)

. In conducting the review, we accept the factual allegations of the operative complaint, as well as the documents to which it refers, as true and construe them in the light most favorable to the plaintiff. See

AE v. Cty. of Tulare , 666 F.3d 631, 636 (9th Cir. 2012) ; Marder v. Lopez , 450 F.3d 445, 448 (9th Cir. 2006).

We review for abuse of discretion the district court's denial of leave to amend. AE , 666 F.3d at 636

. “A district court abuses its discretion by denying leave to amend unless amendment would be futile or the plaintiff has failed to cure the complaint's deficiencies despite repeated opportunities.” Id.

We review de novo a district court's interpretation of state law. See JustMed, Inc. v. Byce , 600 F.3d 1118, 1125 (9th Cir. 2010)

.

III. Discussion

A. Federal Prosecutorial Immunity

1. Absolute Immunity

Prosecutorial immunity applies to § 1983

claims. Imbler , 424 U.S. at 427, 96 S.Ct. 984. State prosecutors are absolutely immune from § 1983 actions when performing functions “intimately associated with the judicial phase of the criminal process,” id. at 430, 96 S.Ct. 984, or, phrased differently, “when performing the traditional functions of an advocate.”

Kali na v. Fletcher , 522 U.S. 118, 131, 118 S.Ct. 502, 139 L.Ed.2d 471 (1997)

. “Prosecutors are entitled to qualified immunity, rather than absolute immunity, when they perform administrative functions, or ‘investigative functions normally performed by a detective or police officer.’ ” Genzler v. Longanbach , 410 F.3d 630, 636 (9th Cir. 2005) (quoting Kalina , 522 U.S. at 126, 118 S.Ct. 502 ).

In determining whether actions of government officials are entitled to absolute immunity, or only subject to qualified immunity, we focus on “the nature of the function performed.” Buckley v. Fitzsimmons , 509 U.S. 259, 269, 113 S.Ct. 2606, 125 L.Ed.2d 209 (1993)

(quoting Forrester v. White , 484 U.S. 219, 229, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988) ). Absolute immunity applies when “initiating a prosecution” and “presenting the State's case,” Imbler , 424 U.S. at 431, 96 S.Ct. 984, and during “professional evaluation of the evidence assembled by the police and appropriate preparation for its presentation at trial ... after a decision to seek an indictment has been made,” Buckley , 509 U.S. at 273, 113 S.Ct. 2606. By contrast, absolute immunity does not apply when a prosecutor “gives advice to police during a criminal investigation,” “makes statements to the press,” or “acts as a complaining witness in support of a[n arrest] warrant application.” Van de Kamp v. Goldstein , 555 U.S. 335, 343, 129 S.Ct. 855, 172 L.Ed.2d 706 (2009) (citations omitted). When considering acts of obtaining evidence, we look to the goal of the action to determine its function. See

Torres v. Goddard , 793 F.3d 1046, 1053 (9th Cir. 2015) (distinguishing seeking a warrant to obtain evidence to prosecute an indictment, which is protected by absolute immunity, from seeking a warrant to obtain evidence as “collateral investigation into new crimes,” which is not protected by absolute immunity).

Absolute immunity “is an extreme remedy, and it is justified only where ‘any lesser degree of immunity could impair the judicial process itself.’ ” Lacey v. Maricopa Cty. , 693 F.3d 896, 912 (9th Cir. 2012)

(en banc) (quoting Kalina , 522 U.S. at...