DePaoli v. Carlton, CIV. S-92-0068-WBS/PAN.
| Decision Date | 27 January 1995 |
| Docket Number | No. CIV. S-92-0068-WBS/PAN.,CIV. S-92-0068-WBS/PAN. |
| Court | U.S. District Court — Eastern District of California |
| Parties | Bernard C. DePAOLI, Plaintiff, v. Stephen S. CARLTON, individually and in his official capacity as District Attorney for the County of Shasta, Larry Jarrett, individually and in his official capacity as a Deputy Sheriff for the County of Shasta, and Alan D. Bradley, Defendants. |
Bernard C. DePaoli, pro se.
G. Dennis Halkides, Halkides and Morgan, Redding, CA, James Constantine Pappas, Hallades and Morgan, Redding, CA, for Stephen S. Carlton and Larry Jarrett.
Plaintiff Bernard DePaoli brings this civil rights action against various officers of Shasta County under 42 U.S.C. §§ 1983 and 1988. Defendants' motion to dismiss the original complaint for failure to state a claim was granted on March 23, 1992 and plaintiff was granted leave to amend. The case is now before the court on defendants' alternate motions to dismiss the First Amended Complaint filed April 2, 1992 pursuant to Fed. R.Civ.P. 12(b)(6), and for summary judgment pursuant to Fed.R.Civ.P. 56.
Defendants have submitted affidavits and supporting documents in support of their motion. At oral argument plaintiff agreed that this motion could be considered under Fed. R.Civ.P. 56. Plaintiff has elected to submit no documents in opposition to defendants' motion. The alternative motions are considered separately. In considering both motions, the court takes into account DePaoli's status as a litigant proceeding in propria persona. However, the court also takes into account the fact that DePaoli is a lawyer, and indeed, was at one time the elected District Attorney of Humboldt County. Complt. ¶ 2.
For purposes of the motion to dismiss, all the plaintiff's allegations are accepted as true, Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 1081-82, 31 L.Ed.2d 263 (1972), and all reasonable inferences are drawn in plaintiff's favor. Retail Clerks International Ass'n v. Schermerhorn, 373 U.S. 746, 753 n. 6, 83 S.Ct. 1461, 1466 n. 6, 10 L.Ed.2d 678 (1963). Accordingly, the following statement of the facts is based on the version tendered by plaintiff in his First Amended Complaint.1
On March 1, 1988, Philip Kellotat was arrested and charged with the murder of Vincent Capitan. ¶ 18. Though the charges against him were soon dropped due to lack of evidence, Kellotat remained in custody in the Shasta County Jail on an unrelated matter. ¶¶ 19, 20. About this time, Kellotat first retained Bernard DePaoli as defense counsel. ¶ 20. In April, 1988, while Kellotat was still in custody, Shasta County authorities were contacted by defendant Alan Bradley,2 who was then serving a seven-year sentence in the California State Penitentiary. ¶ 21. Bradley offered information implicating Kellotat in Capitan's murder in exchange for an early release from prison. ¶ 21. In July, 1988, on the basis of Bradley's statements, Kellotat was again charged with Capitan's murder. ¶ 22. Again, he retained DePaoli as his defense attorney. ¶ 23.
At this time, defendants Larry Jarrett, a Shasta County Sheriff's Captain, and Steve Carlton, then Shasta County District Attorney,3 allegedly initiated the first of a number of attempts to prevent DePaoli from representing Kellotat. In August, 1988, while DePaoli was attempting to finalize financial arrangements with Kellotat's family, Jarrett met with Kellotat's relatives in Los Angeles and attempted to convince them not to hire DePaoli. ¶ 24. This effort failed, however, and plaintiff became Kellotat's attorney of record at an October 15, 1988 arraignment. ¶ 26.
Meanwhile, Alan Bradley decided to approach DePaoli. He commenced a series of collect phone calls to the attorney in an attempt to make a deal for testimony more favorable to Kellotat. ¶ 31. For instance, during a phone call made on October 28, 1988, Bradley offered testimony that would clear Kellotat in exchange for $5,000. ¶ 29. On another occasion, Bradley offered testimony in exchange for legal assistance for himself and for his girlfriend, Dawn Walker. ¶ 30. After these phone calls failed to produce a better deal, Bradley approached Carlton and Jarrett and informed them that he could get DePaoli to "bribe" him on tape. ¶ 33.
Carlton and Jarrett agreed. Between November 1, 1988 and November 10, 1988, Carlton and Jarrett recorded seven phone calls and one jail visit between DePaoli and Bradley. ¶ 35. Bradley was coached by both Carlton and Jarrett on what to say during the conversations. ¶ 34. During the conversations, Bradley stated that he had lied to the prosecutors, and that he was willing to testify truthfully on Kellotat's behalf in exchange for money or other assistance for Walker and himself. ¶ 29. On November 8, 1988, $400 was sent to Dawn Walker by Carl Smith. ¶ 37.4
On November 28, 1988, still unaware that his conversations with Bradley had been recorded, DePaoli arrived at the Redding, California Courthouse for an appearance in the Kellotat case. ¶ 38. He was met by Jarrett and another Sheriff's Detective and taken to the Shasta County Sheriff's Office for questioning. ¶ 38. At that time DePaoli was told that his conversations with Bradley had been recorded. During the questioning, DePaoli was informed that no charges would be filed against him if he were to withdraw from the Kellotat case. ¶ 39. Sensitive to a possible conflict of interest, DePaoli asked the court for permission to withdraw. ¶ 40. One week later, DePaoli informed the court that Kellotat still wanted DePaoli as his defense counsel. ¶ 42. Soon after, DePaoli was informed by Jarrett that bribery charges would be filed against him. ¶ 43. Plaintiff was reinstated as counsel of record by the Redding Municipal Court in the Kellotat case on December 9, 1988. ¶ 44. Later that same day, Carlton filed bribery charges against DePaoli. ¶ 45.
Afterwards, Carlton continued to oppose DePaoli's representation of Kellotat. After Kellotat's case was certified to the Shasta County Superior Court for trial, DePaoli sought to be named attorney of record so that his continued representation of the now indigent Kellotat could be paid by county funds. ¶ 48. Carlton opposed this, with the ultimate result being that DePaoli was permitted to represent Kellotat, but he was not paid. ¶ 49. Three months later, after a jury trial, Kellotat was found not guilty of all charges. ¶ 50.
The court may not dismiss the complaint for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle him or her to relief. Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 2232-33, 81 L.Ed.2d 59 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)). A claim may be properly dismissed under Rule 12(b)(6) where the plaintiff fails to allege facts which would support a "cognizable legal theory." Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (1988).
42 U.S.C. § 1983. A § 1983 claim has two elements: (1) the conduct complained of must have been committed under color of state law, and (2) the conduct must have deprived the plaintiff of some constitutional right. Jones v. Community Redevelopment Agency, 733 F.2d 646, 649 (9th Cir.1984). Since defendants concede that the conduct in question here was "under color of state law," Defendants Memorandum of Points and Authorities at 7, the only issue is whether defendants' alleged conduct subjected DePaoli to a deprivation of his constitutional rights.5
DePaoli maintains that it did, and he pleads six separate claims.6 Each is based on alleged violations of his First Amendment right to petition the court for redress of grievances and his Fourteenth Amendment right to practice law.7 DePaoli's theory of the case is that Carlton and Jarrett, along with Bradley, engaged in a series of actions designed to disrupt the attorney-client relationship between DePaoli and Kellotat, and ultimately to prevent DePaoli from defending Kellotat. Regardless of the truth of DePaoli's allegations, each of his claims must be dismissed because none of them are based upon a constitutionally protected right.
Plaintiff's argument that defendants' conduct amounted to a deprivation of his First Amendment right to petition the court for redress of grievances is groundless. The right to petition the government for redress of grievances is personal. In the context of a court proceeding the right to petition is the client's, not the attorney's. An attorney may not claim a right to petition based upon representation of a client. See Mease v. Heinz, 80 F.R.D. 119, 123 (D.Pa. 1978) (). If any First Amendment right was impinged in this case, it was Kellotat's, not DePaoli's.
Likewise, DePaoli had no constitutional right to represent Kellotat. In order to state a § 1983 claim on the basis of his Fourteenth Amendment rights, DePaoli must allege that the defendants' actions deprived him of liberty or property without due process of law.8 Several reported decisions, though none from the Ninth Circuit, have addressed similar questions. The court looks to these as persuasive authority.
Especially instructive is Goulding v. Feinglass, 811 F.2d 1099 (7th Cir.1987). There, a tax attorney brought a § 1983 action...
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