Chavez v. Robinson

• Decision Date: 29 March 2016
• Docket Number: No. 14–35384.,14–35384.
• Citation: 817 F.3d 1162
• Parties: Daniel Mike CHAVEZ, Plaintiff–Appellant, v. David R. ROBINSON; Lisa Moore; Board of Parole and Post–Prison Supervision, Defendants–Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

817 F.3d 1162

Daniel Mike CHAVEZ, Plaintiff–Appellant,

v.David R. ROBINSON; Lisa Moore; Board of Parole and Post–Prison Supervision, Defendants–Appellees.

No. 14–35384.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Dec. 8, 2015.

Filed March 29, 2016.

As Amended on Rehearing April 15, 2016.

John T. Drake (argued), Foster Pepper PLLC, Spokane, WA; Kendra H. Nickel–Nguy, K & L Gates LLP, Seattle, WA, for Plaintiff–Appellant.

Gerald L. Warren (argued), Law Office of Gerald Warren, Salem, OR, for Amicus Curiae Klamath County.

Jeff J. Payne (argued), Senior Assistant Attorney General; Ellen F. Rosenblum, Attorney General; Anna M. Joyce, Solicitor General, Salem, OR, for Amicus Curiae State of Oregon.

Before: M. MARGARET McKEOWN and RICHARD C. TALLMAN, Circuit Judges and SHARON L. GLEASON,^* District Judge.

OPINION

McKEOWN

, Circuit Judge:

After serving a prison sentence for attempted sexual abuse, Daniel Chavez entered probation. As a condition of probation, Chavez was ordered to enroll in a sex offender treatment program, which required him to admit his guilt before treatment began and while his appeal was pending. Chavez maintained his innocence both during and after trial. Alarmed at the prospect of admitting guilt, Chavez worried that such an admission of guilt could affect a potential retrial and also expose him to perjury charges because his direct appeal was still pending at the time of his release. When Chavez invoked the Fifth Amendment privilege against self-incrimination and refused to admit that he had committed a sex crime, his therapist rejected him from the sex offender treatment program and his probation officer sent him back to prison for violating the terms of his probation. As it turned out, Chavez was prescient with respect to his appeal—the Oregon Attorney General conceded error and the Oregon Court of Appeals remanded his case for retrial. State v. Chavez,

248 Or.App. 260, 272 P.3d 167 (2012).

Meanwhile, Chavez filed a pro se in forma pauperis ("IFP") civil rights complaint in federal district court against his probation officer and therapist. Before any defendant had been served, the district court dismissed the complaint with prejudice, in large part on immunity grounds.

Although Chavez's appeal raises serious questions about the scope of Fifth Amendment protections for probationers undergoing sex offender treatment under Minnesota v. Murphy, 465 U.S. 420, 104 S.Ct. 1136, 79 L.Ed.2d 409 (1984)

, the procedural posture of the case narrows the scope of this appeal. We thus consider whether a district court can sua sponte dismiss an IFP complaint on the basis of qualified immunity under 28 U.S.C. § 1915(e)(2)(B)(iii), which requires dismissal if the action "seeks monetary relief against a defendant who is immune from such relief." We hold that the term "immune" as used in the statute includes both absolute and qualified immunity. Because Chavez's complaint did not clearly foreclose the possibility of qualified immunity, we reverse and remand for further proceedings.

BACKGROUND

An Oregon jury convicted Chavez of two counts of attempted first-degree sexual abuse and two counts of private indecency. After he was released from jail in June 2010, Chavez started serving five years of supervised probation. He was required to complete and pay for an approved sex offender treatment program as a condition of his release. Or.Rev.Stat. § 144.102(4)(b)(F)

.

Chavez maintained his innocence throughout trial and in later proceedings. While he was still in prison, Chavez appealed his conviction to the Oregon Court of Appeals. Recognizing that the sex offender program would require an admission of guilt, he asked the Oregon Board of Parole and Post–Supervision to delay the treatment until after the decision on his appeal. That request went unanswered. With his appeal still pending, Chavez reported to his probation officer, defendant Lisa Moore, who ordered him to participate in a sex offender treatment program run by defendant David Robinson, a therapist in private practice. At the time, the Klamath County Community Corrections and Probation Department employed Moore and contracted with Robinson for his services.

When Chavez first arrived at Robinson's office, Robinson asked him to sign forms admitting his guilt for the attempted sexual abuse and private indecency convictions, along with "all other crimes." Robinson also asked Chavez to sign a release that would have allowed Robinson to send each form to the Klamath County District Attorney's Office. Chavez's refusal to sign the forms led him to be handcuffed and booked into jail, where he spent a month as a sanction for failure to cooperate.

Chavez then petitioned the state court to postpone the treatment program while his criminal appeal was pending. Although the court denied the motion to stay treatment, it ordered that "[n]o statements, admissions, or confessions made by defendant pursuant to the conditions of probation or post-prison supervision ... shall be admissible against defendant in any further proceedings in the above-captioned case or in any other criminal proceedings" except any proceedings related to homicide.¹ The court also ordered that any evidence gained as a result of the statements would be inadmissible.

Although Chavez was directed to reenter the sex offender treatment program, Robinson terminated his treatment, both because Chavez "failed to cooperate with his sexual offender treatment program requirements" and because he had filed suit against Robinson the previous day. (The complaint also listed Moore as a defendant.) Moore revoked Chavez's probation and imposed a 45–day jail sanction.

The twists and turns in Chavez's federal lawsuit provide the procedural backdrop for this appeal. Chavez filed a motion to proceed IFP and a motion for appointment of counsel. After the district court granted Chavez's IFP motion and denied his motion to appoint counsel, the case lay dormant for nearly two years. Then in March 2013, the district court ordered Chavez to show cause within thirty days as to why his case should not be dismissed for failure to prosecute. Fifteen days later, Chavez filed a document labeled "Tort Claim with Damages." This filing listed Robinson and the Oregon Board of Parole ("Parole Board") as defendants, omitting Moore.

A year later, the district court sua sponte dismissed Chavez's case with prejudice for failing to state a claim. The court construed Chavez's "Tort Claim with Damages" as an amended complaint. It concluded that the Eleventh Amendment barred Chavez's claims against the Parole Board and that absolute quasi-judicial immunity barred any claims against members of the Parole Board in their individual capacities. The court dismissed Moore from the action because she was not named in Chavez's "Tort Claim with Damages" and in any event, qualified immunity would bar Chavez's § 1983

claims. Finally, the court dismissed Chavez's tort claims against Robinson because his conduct was lawful under Oregon law. The court also reasoned that Robinson was not acting under color of state law and, even if he were, he was entitled to qualified immunity.²

ANALYSIS

As a threshold matter, we consider whether the district court properly construed Chavez's "Tort Claim with Damages" filing—which was submitted soon after the court issued an order to show cause—as an amended complaint.³ Chavez filed his original complaint against Robinson and Moore. His supplemental filing listed only Robinson and the Parole Board as respondents and contained no reference to Moore in the text.

When a petitioner proceeds pro se, as Chavez did, the district court must "construe the pleadings liberally and [ ] afford the petitioner the benefit of any doubt." Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir.2010)

(citation omitted). At no point did Chavez indicate that the filing was intended to amend his earlier complaint. Nor did the court give Chavez the opportunity to address any perceived deficiencies, such as clarifying which parties were the intended defendants. See, e.g., Crowley v. Bannister, 734 F.3d 967, 978 (9th Cir.2013) ("A district court abuses its discretion by denying leave to amend where the complaint's deficiencies could be cured by naming the correct defendant."); Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir.1995) ("Unless it is absolutely clear that no amendment can cure the defect [ ], a pro se litigant is entitled to notice of the complaint's deficiencies and an opportunity to amend prior to dismissal of the action.").

Contrary to the district court's sua sponte recharacterization of Chavez's filing, the better interpretation of the "Tort Claim with Damages" submission is that Chavez was responding to the district court's order to show cause. He filed the document fifteen days after the court issued its order, well within the thirty-day window given by the court. Chavez characterized the filing as "exhibits of abuse supporting this cause," not as an amended complaint. He was directed to take action to avoid dismissal and he did. Because the filing did not amend or supersede Chavez's original complaint, Moore remains a party to this action.⁴

The next question—and the crux of this appeal—is whether the district court had authority to dismiss sua sponte Chavez's claims against Robinson and Moore on qualified immunity grounds. Chavez's position is that a court should not be able to "dismiss a case on qualified immunity grounds unless and until the defense has been affirmatively raised in a responsive pleading."

The statute governing IFP filings requires a court to dismiss an action "at any time" if it determines that the complaint "seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B)(iii)

. Chavez acknowledges that the statute applies to absolute immunity. He argues, however, that we should not read § 1915 to permit a district court to screen sua sponte for qualified immunity before the...