Franklin v. Terr, FRANKLIN-LIPSKE

• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)
• Writing for the Court: PREGERSON
• Citation: 201 F.3d 1098
• Parties: (9th Cir. 2000) GEORGE FRANKLIN, Plaintiff-Appellant, v. LENORE TERR, JIM FOX, ELAINE TIPTON, MARTIN MURRAY, ROBERT MORSE, BRYAN CASSANDRO, SGT. JOHN CUNEO, KIRK BARRETT, EILEEN OPINIONMATEO COUNTY, and DOES 1-100, Defendants-Appellees
• Docket Number: FRANKLIN-LIPSKE,SAN,No. 98-16843
• Decision Date: 02 February 2000

Page 1098

201 F.3d 1098 (9th Cir. 2000) GEORGE FRANKLIN, Plaintiff-Appellant,
v.
LENORE TERR, JIM FOX, ELAINE TIPTON, MARTIN MURRAY, ROBERT MORSE, BRYAN CASSANDRO, SGT. JOHN CUNEO, KIRK BARRETT, EILEEN OPINION FRANKLIN-LIPSKER, SAN MATEO COUNTY, and DOES 1-100, Defendants-Appellees. No. 98-16843 FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT Argued and Submitted December 9, 1999
Filed February 2, 2000

Page 1099

Andrew C. Schwartz, Casper, Meadows, & Schwartz, Walnut Creek, California; Dennis P. Riordan and Dylan L. Schaffer, Riordan & Rosenthal, San Francisco, California, for the plaintiff-appellant.

Peter J. Zomber and David J. Ozeran, La Follette, Johnson, De Haas, Fesler & Ames, Los Angeles, California, for defendant-appellee Kirk Barrett.

Donald J. Putterman, Rachel Wagner, and Barry W. Strike, Sideman & Bancroft; San Francisco, California, and Jon B. Eisenberg, Horvitz & Levy, Encino, California, for defendantappellee Lenore Terr.

Appeal from the United States District Court for the Northern District of California

Before: Joseph T. Sneed, Harry Pregerson and William A. Fletcher, Circuit Judges.

PREGERSON, Circuit Judge:

A witness has absolute immunity from liability for civil damages under S 1983 for giving perjured testimony at trial. See Briscoe v. LaHue, 460 U.S. 325, 326 (1983). In this case of first impression, we must decide whether a witness also has absolute immunity from liability for civil damages under S 1983 for conspiring to present her own and another witness's perjured testimony at trial. The district court held that a witness has such immunity. See Franklin v. Terr, No. 972443, 1998 WL 230983, at *1 (N.D. Cal. Apr. 30, 1998). We agree and affirm.

I.

In 1989, Eileen Franklin-Lipsker ("Franklin-Lipsker") accused her father, George Franklin ("Franklin"), of murdering her childhood friend Susan Nason twenty years earlier. Franklin-Lipsker based her accusation on a memory that she claimed was previously repressed but recently recovered. Franklin was tried and convicted of first degree murder by a jury in California state court.

In 1995, the federal district court granted Franklin's petition for habeas corpus because it concluded that several constitutional errors had occurred during his trial. ¹ See Franklin v. Duncan, 884 F. Supp. 1435, 1448 (N.D. Cal. 1995), aff'd, 70 F.3d 75 (9th Cir. 1995). The following year, the San Mateo District Attorney's office dismissed the charges against Franklin because it determined that there was insufficient evidence to retry him. Franklin then

Page 1100

filed suit under 42 U.S.C. S 1983 against a number of defendants, alleging violations of his civil rights in connection with his murder trial and conviction. Only the allegations in the amended complaint involving Kirk Barrett and Lenore Terr are before us in this appeal.

Kirk Barrett was Franklin-Lipsker's therapist. Franklin Lipsker first disclosed her recovered memory of the Nason murder to Barrett during her third therapy session. At Franklin's trial, the defense subpoenaed Barrett to testify about the therapy he provided to Franklin-Lipsker. Franklin's amended complaint alleges that Barrett conspired with several other witnesses to testify falsely that he did not hypnotize FranklinLipsker during her therapy.

Lenore Terr is a psychiatrist who practices in general and child psychiatry. The prosecution called Lenore Terr to testify as an expert witness on childhood trauma and its effect on memory. Franklin's amended complaint alleges that (1) Terr conspired with others, including the prosecutor, to testify falsely at trial, and (2) Terr conspired with Franklin-Lipsker to have Franklin-Lipsker testify falsely at trial.

Terr and Barrett filed motions to dismiss, asserting that they were absolutely immune from civil suit underS 1983 for perjury or conspiring to commit perjury in Franklin's criminal trial. Barrett also asserted that Franklin's allegations against him were insufficient to state a S 1983 claim.

The district court held that Barrett and Terr were absolutely immune from suit and granted their motions to dismiss without leave to amend. In so ruling, the court relied on decisions of the Sixth, Seventh, Eighth, and Tenth Circuits that held that a plaintiff cannot defeat a testifying witness's absolute immunity for perjured testimony by alleging that the witness also engaged in a conspiracy to present perjured testimony. See Franklin v. Terr at *1 (citing Miller v. Glanz, 948 F.2d 1562, 1570-71 (10th Cir. 1991); Wilkins v. May, 872 F.2d 190, 192 (7th Cir. 1989); Alioto v. City of Shively, Kentucky, 835 F.2d 1173, 1174 (6th Cir. 1987); Moses v. Parwatikar , 813 F.2d 891, 892-93 (8th Cir. 1987)). Because it dismissed the claims against both defendants on immunity grounds, the district court did not decide whether the allegations against Barrett were sufficient to state a claim under S 1983. Franklin timely appeals.

We granted Franklin's application to proceed with this interlocutory appeal pursuant to 28 U.S.C. S 1292(b). A dismissal without leave to amend is reviewed de novo. See San Pedro Hotel Co. v. City of Los Angeles, 159 F.3d 470, 477 (9th Cir. 1998). We affirm the district court's dismissal of the S 1983 claim against Barrett, but on different grounds.² We hold that Franklin failed to state a S 1983 claim against Barrett. We also affirm the district court's dismissal of the S 1983 claim against Terr on the same grounds as the district court and we hold that Terr has absolute immunity from damages liability in a S 1983 action for conspiring to present false testimony at a criminal trial.

II.

A. Kirk Barrett's Motion to Dismiss

To state a claim under 42 U.S.C.S 1983, a plaintiff must allege that (1) he or she was...