Broam v. Bogan

Citation320 F.3d 1023
Decision Date25 February 2003
Docket NumberNo. 01-17246.,01-17246.
PartiesJack BROAM and Jay Manning, Plaintiffs-Appellants, v. Robert BOGAN individually and in his Official Capacity as Former Deputy District Attorney for Churchill County; Richard Ingram, individually and in his Official Capacity as a Deputy Sheriff for Churchill County; Doe Defendants 1-10; Red and White Corporations; Black and Blue Municipal Entities 1-10, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Richard F. Cornell, Law Offices of Richard F. Cornell, Reno, NV, Donald York Evans, Donald York Evans, Ltd., Reno, NV, for the plaintiffs-appellants.

Brett K. South, Rands South Gardner & Hetey, Reno, NV, for the defendants-appellees.

Appeal from the United States District Court for the District of Nevada; Edward C. Reed, District Judge, Presiding. D.C. No. CV-00-00389-ECR.

Before: HUG, ALARCÓN, and GRABER, Circuit Judges.

ALARCÓN, Senior Circuit Judge.

Jack Broam and Jay Manning appeal from the judgment entered on October 22, 2001, dismissing their first amended complaint for failure to state a claim upon which relief could be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.1 In their first amended complaint, Broam and Manning alleged that they were entitled to special and punitive damages pursuant to 42 U.S.C. § 1983 because Robert Bogan and Charles Ingram, while acting under color of state law, violated their rights under the Fourth, Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. Broam and Manning contend that the district court erred in concluding that (1) they failed to allege facts that demonstrate a constitutional violation as to certain claims; (2) Bogan was protected from liability under the doctrine of absolute immunity, regarding some of his alleged conduct; (3) Bogan and Ingram were entitled to qualified immunity regarding the remaining claims; (4) Devereaux v. Abbey, 263 F.3d 1070, 1075 (9th Cir.2001) (en banc), required the dismissal of the First and Fourth causes of action; and (5) under the Restatement (Second) of Torts § 667 and Gowin v. Altmiller, 663 F.2d 820, 823 (9th Cir.1981), probable cause for arrest was established by the conviction of plaintiffs, even though that conviction was subsequently overturned. We vacate the dismissal of the first amended complaint because whether Bogan and Ingram can state a cause of action as to some of their claims may depend on when the alleged unconstitutional conduct occurred. No dates are set forth in the first amended complaint. We are persuaded that Broam and Manning should be given an opportunity to correct this omission. Following a recitation of the pertinent facts alleged in the first amended complaint,2 we summarize the relevant jurisprudence regarding absolute and qualified immunity to assist the district court and counsel upon remand.

I

The first amended complaint contains the following allegations. Sometime before 1989, Broam and his wife, Angela Shearman, had an acrimonious divorce. After the divorce was granted, Shearman prevented Broam from having access to their two children, an eight-year-old son ("Broam's son") and a two-and-a-half-year-old daughter. A state court granted him the right to visit his children. Shearman asked Manning, who occasionally rode to work with Broam, to assist her in the custody fight. When Manning rebuffed Shearman's request she threatened to "get him."

Soon thereafter, allegations of abuse began to surface. Shearman took Broam's son to see David Manrique at the Indian Mental Health Center in Washoe County. Broam's son told Manrique that he was physically and sexually abused by his father.

Manrique subjected Broam's son to "fantasy therapy." This procedure involves eliciting from a subject verbal fantasies regarding sexual abuse. During "fantasy therapy," Broam's son also told Manrique that he was sexually abused by Manning and Privet. Manrique reported the alleged abuse to the Churchill County Sheriff's Office, Bogan and Ingram specifically, "pretrial." No tapes were made nor is there any manner available to confirm the techniques used in questioning Broam's son.

The case was assigned to then Sergeant Ingram for investigation. Ingram interviewed Broam's son repeatedly and took him to places in Churchill and Lyon Counties where the alleged abuse occurred and deliberately did not record these interviews and sessions, except for one that was recorded. This was at the direction of and in conspiracy with Bogan to deprive plaintiffs of due process of law.

Ingram worked closely with Bogan, who was then a Deputy District Attorney, concerning the sexual abuse report. Bogan directed Ingram to place Broam and Manning in the same cell, which was wired for sound so that their conversations could be surreptitiously recorded. At that time, Broam and Manning were represented by counsel. Bogan and Ingram knew that Broam and Manning were represented by counsel. Neither Bogan nor Ingram sought judicial approval to tape record conversations in the cell. Bogan and Ingram did not notify Broam and Manning that their conversations had been recorded. Bogan did not place a copy of the transcript of the tape recording in his office file. The recording was later misplaced and its whereabouts were unknown for a considerable period of time. Eventually the transcript of the recording was located. The recording revealed that Broam and Manning had denied that they were guilty.

In order to develop the defense, a psychological evaluation of Broam's son was arranged with Dr. Earl Nielsen, a psychologist. Ingram transported Broam's son to Dr. Nielsen's office and insisted on being present at Dr. Nielsen's interview with Broam's son. His efforts prevented the defense expert's examination of Broam's son. Ingram acted pursuant to Bogan's instruction, and allegedly at the request of Angela Shearman, the child's mother, who had brainwashed the child against the Appellants.

Broam's son also stated that a third adult was either present at and/or participated in the alleged sexual assaults upon himself and his half-sister ("the half-sister"). Although Broam's son identified the third person as "Dimitri," the man's name was James Privet. Privet was married to Ingram's sister. Bogan directed Ingram not to have any contact with Privet even though he was a material percipient witness, and as Broam's son claimed, a participant in the alleged abuse. As a result, he was never interviewed.

Broam's son reported that his half-sister was a witness to the acts of sexual abuse. Ingram failed to interview her, however, or to notify the pertinent Nevada agencies that she was a material witness. As a result, she was placed out of the subpoena powers of the State of Nevada and was unavailable at trial as a witness. The half-sister eventually testified at Appellants' state habeas corpus hearing that Broam's son was not sexually abused at any time in her presence or within her earshot.

The stories Broam's son told Ingram and Bogan were such that if he were sexually abused as he described, he would have suffered severe rectal damage. Broam's son did not suffer rectal damage.

Broam's son attempted to recant his accusations, but Bogan stopped him. Bogan did not record, document, or advise defense counsel of this renunciation.

In 1990, Appellants were convicted at a jury trial. Broam was sentenced to four life terms without the possibility of parole and Manning was sentenced to a term of life imprisonment. Appellants petitioned the Third Judicial District Court for the County of Churchill for a writ of habeas corpus. In 1998, the writ was granted after Broam's son recanted his testimony accusing Appellants of sexual abuse.

II

Rule 12(b)(6) motions are viewed with disfavor. Gilligan v. Jamco Dev. Corp., 108 F.3d 246, 249 (9th Cir.1997). Dismissal without leave to amend is proper only in "extraordinary" cases. United States v. City of Redwood, 640 F.2d 963, 966 (9th Cir.1981). When ruling on a 12(b)(6) motion, the complaint must be construed in the light most favorable to the plaintiff. Parks Sch. of Bus. Inc. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995). The court must accept as true all material allegations in the complaint, as well as any reasonable inferences to be drawn from them. Pareto v. FDIC, 139 F.3d 696, 699 (9th Cir.1998).

In order to allege a claim upon which relief may be granted under § 1983, a plaintiff must show that he or she has been deprived of a right "`secured by the Constitution and ... laws' of the United States" and that the deprivation was "`under color'" of state law. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 155, 98 S.Ct. 1729, 56 L.Ed.2d 185 (1978) (quoting 42 U.S.C. § 1983). Section 1983 "is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred." Baker v. McCollan, 443 U.S. 137, 144 n. 3, 99 S.Ct. 2689, 61 L.Ed.2d 433 (1979).

A state actor, such as a law enforcement officer, is entitled to qualified immunity in an action filed under § 1983 if his or her conduct during a criminal investigation either does not violate a federal constitutional right, or the constitutional right was not clearly established on the date of the alleged violation. Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001).

A state prosecutor is entitled to absolute immunity from liability under § 1983 for violating a person's federal constitutional rights when he or she engages in activities "intimately associated with the judicial phase of the criminal process." Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). A prosecutor is granted only qualified immunity, however, if he or she is performing investigatory or administrative functions, or is essentially functioning as a police officer or detective. Buckley v. Fitzsimmons, 509 U.S. 259, 273, 113 S.Ct. 2606, 125...

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