Hall v. California Dept. of Corrections, C 92-20428 JW.

• Decision Date: 19 October 1993
• Docket Number: No. C 92-20428 JW.,C 92-20428 JW.
• Citation: 835 F. Supp. 522
• Court: U.S. District Court — Northern District of California
• Parties: Brian HALL, Plaintiff, v. CALIFORNIA DEPARTMENT OF CORRECTIONS, E.R. Myers, Joe Basso, Jim Marsh, David Tristan, and Does 1 through 10, inclusive, Defendants.

835 F. Supp. 522

Brian HALL, Plaintiff, v. CALIFORNIA DEPARTMENT OF CORRECTIONS, E.R. Myers, Joe Basso, Jim Marsh, David Tristan, and Does 1 through 10, inclusive, Defendants.

No. C 92-20428 JW.

United States District Court, N.D. California.

October 19, 1993.

Gregory L. Hartwell, Hartwell & Hartwell, Sacramento, CA, for plaintiff.

Craig Modlin, Deputy Atty. Gen., San Francisco, CA, for defendants.

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS

WARE, District Judge.

Defendants California Department of Corrections ("CDC"), E.R. Myers, Joe Basso, Jim Marsh and David Tristan move to dismiss this action pursuant to Federal Rule of Civil Procedure 12(b)(6). Defendants' argue that Plaintiff's complaint fails to state a claim under 42 U.S.C. § 1983 because (1) Plaintiff has not identified the deprivation of a constitutional right, and (2) even if Plaintiff suffered such a deprivation, he was not denied due process of law. As set forth more fully below, the Court finds that Plaintiff was deprived of a protected property interest. However, the Court also finds that although Plaintiff was not afforded a pre-deprivation hearing, there are adequate post-deprivation procedures available such that Plaintiff was not denied due process of law. Accordingly, Defendants' motion to dismiss is hereby GRANTED.

I. BACKGROUND

This action arises from a claim by Plaintiff that Defendants violated his constitutional right to due process by failing to afford him notice and an opportunity to be heard prior to denying Plaintiff's request for legal representation in a civil action brought against Plaintiff by an inmate at the CDC. Plaintiff is a correctional officer employed by the CDC. Clay Jones, a state prison inmate filed a state court action ("Jones action") against the State of California and several of its employees, including Plaintiff, for bodily injuries and verbal harassment that allegedly occurred on July 30, 1989 at the Correctional Training Facility, Soledad, California.

On March 8, 1991, pursuant to California Government Code § 995 ("§ 995"), Plaintiff formally requested the CDC to provide him with legal representation in defense of the Jones action.¹ By a letter dated May 3, the CDC denied Plaintiff's request without stating the reasons for its denial. By letters dated May 9 and May 23, 1991, the CDC again denied Plaintiff's request on the basis that Plaintiff was not acting within the course and scope of his employment in performing the acts alleged in the Jones action.

Subsequently, Plaintiff filed this action pursuant to 42 U.S.C. § 1983 ("§ 1983") alleging that Defendants violated his constitutional rights in their denial of legal representation. Defendants move the Court to dismiss the action for failure to state a claim under § 1983. Specifically, Defendants contend that: the Eleventh Amendment bars a suit in federal court against the CDC; the CDC is not a "person" within the meaning of § 1983; and Plaintiff has not identified the deprivation of any constitutional right secured by the laws of the United States Constitution as required by § 1983.

In his Opposition, Plaintiff concedes that the CDC is not a proper Defendant in the action. However, Plaintiff maintains that he has a constitutionally protected property interest in being provided legal representation. As such, Plaintiff argues that he was deprived of due process when the state failed to afford him a hearing prior to denying his request for legal representation. Plaintiff seeks damages and injunctive relief to require Defendants to provide him with defense and indemnity in the Jones action.

II. DISCUSSION

A. Legal Standard

"A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957). This Court construes the non-moving party's allegations of material fact as true and construes them in the light most favorable to the non-moving party. Nieto v. Ecker, 845 F.2d 868, 870 (9th Cir. 1988).

B. Proper Defendants

Plaintiff concedes that the CDC is not a proper Defendant in this action, but maintains that the remaining Defendants Myers, Basso, Marsh and Tristan are proper Defendants. The Eleventh Amendment bars § 1983 actions against state entities and state officials sued in their official capacities. Thompson v. City of Los Angeles, 885 F.2d 1439, 1443 (9th Cir.1989) (for Eleventh Amendment purposes, states or government entities are not considered "persons" within the meaning of section 1983); Leer v. Murphy, 844 F.2d 628, 632 (9th Cir.1988) (Eleventh Amendment bars inmate's action against state prison officials sued in their official capacity). However, the Eleventh Amendment does not bar suits against state officials sued in their individual capacities for actions taken under color of state law. Hafer v. Melo, ___ U.S. ___, ___, 112 S.Ct. 358, 362, 116 L.Ed.2d 301 (1991) (state officers may be held personally liable for damages under § 1983 based upon actions taken while acting in their official capacities). Accordingly, Defendant CDC is DISMISSED as a Defendant in this action. Defendants Myers, Basso, Marsh, and Tristan remain proper Defendants in the action as they are sued individually for actions taken under color of state law.

C. Plaintiff's Claim Under 42 U.S.C. § 1983

Pursuant to § 1983, an individual may bring a claim against a person acting under color of state law who violates the individual's constitutional or other federally protected rights.² Plaintiff argues that he has stated a claim under § 1983 because he has a protected property interest in a state-provided legal defense that was denied by Defendants without due process.³

1. Protected Interest

The procedural due process guarantees of the Fourteenth Amendment apply only when a constitutionally protected liberty or property interest is at stake. Board of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 2705, 33 L.Ed.2d 548 (1972). While the courts have (sometimes rather summarily) found property interests to clearly exist or not exist in particular types of cases, there is little guidance from available case law for determining whether an interest is constitutionally protected in the first (i.e. unique) instance.⁴ The most helpful precedent in this regard is Roth, supra.

In Roth, the Supreme Court noted that there are certain attributes that seem characteristic of protected property interests:

To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.

408 U.S. at 577, 92 S.Ct. at 2709. The Roth court continued:

Property interests ... are not created by the Constitution. Rather, they are created and their dimensions are defined by existing rules or understandings that stem from an independent source such as state law — rules or understandings that secure certain benefits and that support claims of entitlement to those benefits.

Id.

To determine whether Plaintiff in this case has identified a protected interest in § 995 state-provided legal defense, the Court looks to the plain language of that statute and any case law that may be helpful in interpreting the nature and purpose of the provision. Section 995 states:

Except as otherwise provided in section 995.2 and 995.4, upon request of an employee or former employee, a public entity shall provide for the defense of any civil action or proceeding brought against him, in his official or individual capacity or both, on account of an act or omission in the scope of his employment as an employee of the public entity.⁵

"It is a well-established rule of statutory construction that every word, phrase, sentence and part of an act should be effectuated with the resulting interpretation giving effect to the intent of the Legislature." County of Sacramento v. Superior Court of Sacramento County, 20 Cal.App.3d 469, 472, 97 Cal.Rptr. 771 (1971). Thus a court is required to construe a statute in order to effectuate all of its provisions. Burks v. Poppy Constr. Co., 57 Cal.2d 463, 470, 20 Cal.Rptr. 609, 370 P.2d 313 (1962).

"Usually the word `shall' connotes mandatory action and `may' connotes discretionary action." County of Sacramento, 20 Cal. App.3d at 472, 97 Cal.Rptr. 771. Section 995 explicitly indicates that a public entity "shall" provide a legal defense to an employee in proceedings arising out of acts or omissions within the scope of employment. Thus, state employees do not have a mere "expectation" of a state-provided legal defense under § 995, but rather have a legitimate claim of "entitlement" to such a defense provided they meet the statutory terms of eligibility.⁶ Furthermore, state employees acquire a present interest in this benefit when they become employed by the public entity.

This is not a case where the public entity's duty to defend is permissive or discretionary. Cf. County of Sacramento, 20 Cal.App.3d at 473, 97 Cal.Rptr. 771 (county may arbitrarily refuse defense under California Government Code § 995.8, which permissively allows public entity to provide for criminal defense).⁷ Rather, the plain language of § 995 indicates, and case law reaffirms, that the § 995 duty to defend is mandatory. See Younker v. County of San Diego, 233 Cal.App.3d 1324, 1329, 285 Cal.Rptr. 319 (1991) (county statutorily "obligated" to provide § 995 defense); Wright v. Compton Unified School Dist., 46 Cal.App.3d 177, 181-82, 120 Cal.Rptr. 115 (1975) (school district under "duty imposed by law" to provide defense); County of Sacramento, 20 Cal.App.3d at 473, 97 Cal.Rptr. 771 (public entity "required" under § 995 to afford defense to public employee in civil action); Sinclair v. Arnebergh, 224 Cal.App.2d 595, 598, 36 Cal. Rptr. 810 (1964) (§ 995 makes...