Hearns v. San Bernardino Police Dept.

• Decision Date: 01 July 2008
• Docket Number: No. 05-56214.,No. 05-56324.,No. 05-56272.,No. 05-56306.,05-56214.,05-56272.,05-56306.,05-56324.
• Citation: 530 F.3d 1124
• Parties: Kimberlyn HEARNS, Plaintiff-Appellant, v. SAN BERNARDINO POLICE DEPARTMENT; Garret Zimmon; Michael Billdt, in his capacity as Assistant Chief and Patrol Division Commander of the SBPD; Wesley Farmer, individually and in his capacity as Captain in the SBPD; Mark Garcia, individually and in his capacity as a Lieutenant in the SBPD; Mark Emoto, individually and in his capacity as a Lieutenant in the SBPD; Mitchal Kimball, individually and in his capacity as a Lieutenant in the SBPD; Walt Goggin, individually and in his capacity as a Lieutenant in the SBPD; Craig Keith, individually and in his capacity as a Narcotics Sergeant in the SBPD; Ernie Lemos, individually and in his capacity as an Internal Affairs Supervisor in the SBPD, Defendants-Appellees. Kimberlyn Hearns, Plaintiff-Appellee, v. San Bernardino Police Department; Garret Zimmon; Michael Billdt, in his capacity as Assistant Chief and Patrol Division Commander of the SBPD; Wesley Farmer, individually and in his capacity as Captain in the SBPD; Mark Garcia, individually and in his capacity as a Lieutenant in the SBPD; Mark Emoto, individually and in his capacity as a Lieutenant in the SBPD; Mitchal Kimball, individually and in his capacity as a Lieutenant in the SBPD; Walt Goggin, individually and in his capacity as a Lieutenant in the SBPD; Craig Keith, individually and in his capacity as a Narcotics Sergeant in the SBPD; Ernie Lemos, individually and in his capacity as an Internal Affairs Supervisor in the SBPD, Defendants-Appellants. Kimberlyn Hearns, Plaintiff-Appellant, v. San Bernardino Police Department; Garret Zimmon; Michael Billdt, in his capacity as Assistant Chief and Patrol Division Commander of the SBPD; Wesley Farmer, individually and in his capacity as Captain in the SBPD; Mark Garcia, individually and in his capacity as a Lieutenant in the SBPD; Mark Emoto, individually and in his capacity as a Lieutenant in the SBPD; Mitchal Kimball, individually and in his capacity as a Lieutenant in the SBPD; Walt Goggin, individually and in his capacity as a Lieutenant in the SBPD; Craig Keith, individually and in his capacity as a Narcotics Sergeant in the SBPD; Ernie Lemos, individually and in his capacity as an Internal Affairs Supervisor in the SBPD, Defendants-Appellees. Kimberlyn Hearns, Plaintiff-Appellee, v. San Bernardino Police Department; Garret Zimmon; Michael Billdt, in his capacity as Assistant Chief and Patrol Division Commander of the SBPD; Wesley Farmer, individually and in his capacity as Captain in the SBPD; Mark Garcia, individually and in his capacity as a Lieutenant in the SBPD; Mark Emoto, individually and in his capacity as a Lieutenant in the SBPD; Mitchal Kimball, individually and in his capacity as a Lieutenant in the SBPD; WALT GOGGIN, individually and in his capacity as a Lieutenant in the SBPD; Craig Keith, individually and in his capacity as a Narcotics Sergeant in the SBPD; Ernie Lemos, individually and in his capacity as an Internal Affairs Supervisor in the SBPD, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

530 F.3d 1124

Kimberlyn HEARNS, Plaintiff-Appellant, v. SAN BERNARDINO POLICE DEPARTMENT; Garret Zimmon; Michael Billdt, in his capacity as Assistant Chief and Patrol Division Commander of the SBPD; Wesley Farmer, individually and in his capacity as Captain in the SBPD; Mark Garcia, individually and in his capacity as a Lieutenant in the SBPD; Mark Emoto, individually and in his capacity as a Lieutenant in the SBPD; Mitchal Kimball, individually and in his capacity as a Lieutenant in the SBPD; Walt Goggin, individually and in his capacity as a Lieutenant in the SBPD; Craig Keith, individually and in his capacity as a Narcotics Sergeant in the SBPD; Ernie Lemos, individually and in his capacity as an Internal Affairs Supervisor in the SBPD, Defendants-Appellees.

Kimberlyn Hearns, Plaintiff-Appellee, v. San Bernardino Police Department; Garret Zimmon; Michael Billdt, in his capacity as Assistant Chief and Patrol Division Commander of the SBPD; Wesley Farmer, individually and in his capacity as Captain in the SBPD; Mark Garcia, individually and in his capacity as a Lieutenant in the SBPD; Mark Emoto, individually and in his capacity as a Lieutenant in the SBPD; Mitchal Kimball, individually and in his capacity as a Lieutenant in the SBPD; Walt Goggin, individually and in his capacity as a Lieutenant in the SBPD; Craig Keith, individually and in his capacity as a Narcotics Sergeant in the SBPD; Ernie Lemos, individually and in his capacity as an Internal Affairs Supervisor in the SBPD, Defendants-Appellants.

Kimberlyn Hearns, Plaintiff-Appellant, v. San Bernardino Police Department; Garret Zimmon; Michael Billdt, in his capacity as Assistant Chief and Patrol Division Commander of the SBPD; Wesley Farmer, individually and in his capacity as Captain in the SBPD; Mark Garcia, individually and in his capacity as a Lieutenant in the SBPD; Mark Emoto, individually and in his capacity as a Lieutenant in the SBPD; Mitchal Kimball, individually and in his capacity as a Lieutenant in the SBPD; Walt Goggin, individually and in his capacity as a Lieutenant in the SBPD; Craig Keith, individually and in his capacity as a Narcotics Sergeant in the SBPD; Ernie Lemos, individually and in his capacity as an Internal Affairs Supervisor in the SBPD, Defendants-Appellees.

Kimberlyn Hearns, Plaintiff-Appellee, v. San Bernardino Police Department; Garret Zimmon; Michael Billdt, in his capacity as Assistant Chief and Patrol Division Commander of the SBPD; Wesley Farmer, individually and in his capacity as Captain in the SBPD; Mark Garcia, individually and in his capacity as a Lieutenant in the SBPD; Mark Emoto, individually and in his capacity as a Lieutenant in the SBPD; Mitchal Kimball, individually and in his capacity as a Lieutenant in the SBPD; WALT GOGGIN, individually and in his capacity as a Lieutenant in the SBPD; Craig Keith, individually and in his capacity as a Narcotics Sergeant in the SBPD; Ernie Lemos, individually and in his capacity as an Internal Affairs Supervisor in the SBPD, Defendants-Appellants.

No. 05-56214.

No. 05-56272.

No. 05-56306.

No. 05-56324.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 10, 2007.

Filed July 1, 2008.

Letitia E. Pepper, Riverside, CA, for the plaintiff in Appeals Nos. 05-56214, 05-56272, and 05-56324.

Leo James Terrell, Beverly Hills, CA, for the plaintiff in Appeal No. 05-56306.

James A. Odlum, Mundell, Odlum & Haws, LLP, San Bernardino, CA, for defendants in Appeals Nos. 05-56214, 05-56272, 05-56306, and 05-56324.

Appeal from the United States District Court for the Central District of California; S. James Otero, District Judge, Presiding. D.C. No. CV-03-01434-SJO.

Before: ANDREW J. KLEINFELD and RICHARD A. PAEZ, Circuit Judges, and WILLIAM T. HART,^* District Judge.

Opinion by Judge HART; Partial Concurrence and Partial Dissent by Judge KLEINFELD

HART, District Judge:

It is the right and duty of a plaintiff initiating a case to file a "short and plain statement of the claim." Fed.R.Civ.P. Rule 8(a)(2). The district court dismissed Plaintiff Kimberlyn Hearns' 81-page complaint under Rule 8 without prejudice with leave to file an amended complaint. When Hearns filed an amended complaint that was substantially unaltered, the district court dismissed the case with prejudice. Neither complaint warranted dismissal under Rule 8: although each set forth excessively detailed factual allegations, they were coherent, well-organized, and stated legally viable claims. We therefore reverse in appeal No. 05-56214 and remand for further proceedings. Pursuant to Defendant's non-opposition, we also reverse in appeal No. 05-56306. Finally, we dismiss appeals Nos. 05-56272 and 05-56324 as moot.

I. PROCEDURAL HISTORY

Plaintiff Kimberlyn Hearns, an African-American male, is a police officer employed by Defendant City of San Bernardino Police Department ("SBPD"). In December 2003, Plaintiff filed a complaint against the SBPD and 10 unnamed defendants in which he alleged that he experienced race-based discrimination and retaliation, in violation of 42 U.S.C. §§ 1981, 1983, 1985, and 1986; Title VII, 42 U.S.C. § 2000e et seq.; and state law (the "First Case"). The complaint was 81 pages and raised 17 claims.

Defendants moved to dismiss the original complaint in its entirety based on Federal Rule of Civil Procedure 8(a) and alternatively moved to dismiss some claims under Federal Rule of Civil Procedure 12(b)(6). In an order dated June 25, 2004, the district court granted the motion in part, dismissing Plaintiff's complaint without prejudice for failing to comply with Rule 8 and allowing Plaintiff 18 days to file a first amended complaint ("FAC"). The district court did not reach Defendants' Rule 12 arguments.

No FAC was filed within 18 days. In an order dated July 28, 2004, the district court ordered that Plaintiff show cause in writing as to why the case should not be dismissed for lack of diligent prosecution. Plaintiff filed a written response. The attorney who represented him at the time stated in a declaration that she had not received the order of dismissal or the order to show cause. On September 21, 2004, the court granted Plaintiff 18 more days to file the FAC, which was filed on October 4. The FAC is 68 pages in length. It contains the same 17 claims as the original complaint. Although Plaintiff dropped one individual Defendant and removed or shortened some allegations, the 13-page reduction resulted primarily from narrowing the margins.

Defendants moved to dismiss the FAC, again raising Rule 8 and Rule 12(b)(6) arguments. The district court granted the motion to dismiss with prejudice "for failure to obey the June 25 order requiring [plaintiff] to comply with Rule 8(a)." The court also stated "that alternative measures less drastic than dismissal with prejudice would [not] be effective here. See McHenry [v. Renne], 84 F.3d [1172,] 1178 [(9th Cir.1996)]." The dismissal order was entered on the docket on February 17, 2005. Although neither party notes this fact, no separate Rule 58 judgment was ever entered on the docket, with the consequence that the order of dismissal did not become a final judgment until 150 days later, on July 18, 2005.¹ Fed.R.Civ.P. 58(b)(2)(B).

Plaintiff's then-attorney informed him that his case had been dismissed with prejudice because "the judge felt the complaint was still too long." She did not recommend any other action. The attorney who represents Plaintiff on this appeal also drafted the original complaint, pursuant to a contract with Plaintiff's original attorney of record. When she learned of the dismissal, she offered to assist Plaintiff and entered her appearance after Plaintiff discharged his original attorney. Believing that more than 30 days had passed since the entry of judgment, Plaintiff's new attorney filed a Rule 60(b)(6) motion seeking relief from dismissal based on prior counsel's misconduct and inaction. In the alternative, Plaintiff requested an extension of time to file a notice of appeal. On April 18, 2005, the district court reopened the case to hear the Rule 60(b)(6) motion.

While Plaintiff's motion for relief from the dismissal of the First Case was pending, he filed a second lawsuit against the SBPD and 10 unnamed defendants, alleging that he experienced retaliation for filing the first lawsuit, in violation of Title VII (the "Second Case"). The Second Case was transferred to the same judge who was presiding over the First Case. Thereafter, the court sua sponte consolidated the two cases.

In an Order entered on the docket on August 1, 2005, the district court denied the Rule 60(b) motion because Plaintiff had not shown that his former attorney was grossly negligent. Accordingly, the district court denied Defendants' motion for discovery as moot. The court found, however, that because prior counsel had advised Plaintiff not to appeal, failed to inform him how to preserve his right to appeal, and delayed in turning over the case file, good cause existed for extending the time to appeal. Accordingly, the court entered an order granting a 10-day extension. Four days after the entry of this Order, Plaintiff filed a notice of appeal, No. 05-56214, challenging the original dismissal and the denial of his Rule 60(b)(6) motion.

On August 11, 2005, Defendants filed a motion for post-judgment relief seeking reconsideration of the extension of time to appeal, contending they did not have an adequate opportunity to file an opposition to that part of Plaintiff's Rule 60(b) motion. On August 19, the court denied the motion. In that Order, the court also stated:

Finally, the Court originally calendared a scheduling conference for August 22, 2005 in the [Second Case]. However, the [Second case] and [First case] were already consolidated for all purposes including trial. See Order of July 29, 2005. Accordingly, the entire matter is now up on appeal. The scheduling conference is hereby taken OFF CALENDAR. There are no...