Marchetti v. Bitterolf
| Decision Date | 04 February 1992 |
| Docket Number | No. 91-55095,91-55095 |
| Citation | 968 F.2d 963 |
| Parties | Amilcar A.J. MARCHETTI, Plaintiff-Appellant, v. Gary BITTEROLF; Howard D. Baxter; Vernon Childs; Richard J. Garvas; Los Angeles Police Department; The Federal Bureau of Investigation, et al., Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Amilcar A.J. Marchetti, San Pedro, Cal., in pro. per.
Linda K. Lefkowitz, Asst. City Atty., Los Angeles, Cal., for defendants-appellees Bitterolf, Childs, and the Los Angeles Police Dept.
Marcus M. Kerner, Asst. U.S. Atty., Los Angeles, Cal., and Steven R. Medlin, Legal Counsel Div., Federal Bureau of Investigation, Washington, D.C., for defendants-appellees Ralph C. Hofer, Alan Ducote, and the Federal Bureau of Investigation.
Appeal from the United States District Court for the Central District of California.
Before: ALARCON, BEEZER, and RYMER, Circuit Judges.
Amilcar A.J. Marchetti appeals in pro se from the order staying his civil rights action filed under 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), pending exhaustion of his habeas corpus remedies. Marchetti also appeals from the order staying discovery in this matter.
Marchetti is currently an inmate at the Federal Correctional Institution in Oxford, Wisconsin. On April 13, 1989, Marchetti filed an action alleging civil rights violations against various government agencies and individuals (hereinafter referred to collectively as the "government defendants") involved in the criminal investigation and prosecution that led to his conviction on narcotics charges. The government defendants include the Los Angeles Police Department (LAPD), the Los Angeles District Attorney's Office, the Federal Bureau of Investigation (FBI), three LAPD officers (Gary Bitterolf, Howard D. Baxter, and Vernon Childs), an FBI agent (Alan Ducote), and an Assistant United States Attorney (Ralph C. Hoffer). Marchetti's complaint alleges that the government defendants manufactured false evidence, suborned perjury, and violated the Racketeer Influenced and Corrupt Organizations Act, 18 U.S.C. § 1961, et seq., in effecting his conviction.
The district court ordered that this matter be stayed until he exhausts his habeas corpus remedies. The district court also stayed discovery in this matter pending resolution of various motions filed by the government defendants. Marchetti appeals from the order granting these stays pursuant to 28 U.S.C. § 1292(a)(1) and 28 U.S.C. § 1651.
Before reaching the merits of this appeal, we must determine whether we have jurisdiction over the order staying Marchetti's civil rights action pending exhaustion of his habeas corpus remedies. In Young v. Kenny, 907 F.2d 874 (9th Cir.1990), cert. denied, --- U.S. ----, 111 S.Ct. 1090, 112 L.Ed.2d 1194 (1991), we held that it is error to reach a state prisoner's claim under section We conclude that we have jurisdiction to review the order staying this civil rights action under the collateral order exception to the final judgment rule set forth in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545-47, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949). We also hold that a federal prisoner who contends that his conviction is invalid because it was obtained in violation of his constitutional rights must exhaust his habeas corpus remedies before he may prosecute an action for damages to redress the alleged violation of his civil rights.
1983 whenever the relief requested requires a determination that the prisoner's sentence is invalid. Id. at 876. In Young, however, we did not reach the question whether a prisoner may seek interlocutory review of the stay of a civil rights action pending resolution of constitutional challenges to the underlying conviction in a habeas corpus proceeding. Thus, we must decide whether we have jurisdiction to review the stay of a civil rights action brought by a federal prisoner who seeks damages for deprivation of his constitutional rights in securing his conviction pending habeas corpus review of the same allegations. We must also consider for the first time in this circuit whether a federal prisoner who challenges the validity of his conviction must first pursue his habeas corpus remedies before seeking damages for a deprivation of his civil rights by government officials
Ordinarily, this court has no jurisdiction to consider an appeal until a final judgment resolving the merits of the cause of action has been entered. 28 U.S.C. § 1291. In Cohen, the Supreme Court instructed that a collateral order can be reviewed on appeal prior to the entry of a final judgment. Id. at 545-47, 69 S.Ct. at 1225-26
To come within the collateral order exception to the final judgment rule, the district court ruling must "conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978) (footnote omitted).
In Johnson v. Texas, 878 F.2d 904 (5th Cir.1989), the Fifth Circuit held that the requirements of the collateral order exception are met when a district court orders a stay of an action under section 1983 pending exhaustion of habeas corpus remedies:
The disputed question is whether the claims made in the § 1983 suit are claims which must be first made the subject of habeas corpus proceedings and the exhaustion of state remedies in those proceedings. The court conclusively determined that issue by holding that the § 1983 claims were subject to the exhaustion requirement. Next, the court resolved an important issue which was completely separate from the merits of the action because the habeas corpus claims are entirely separate claims in the contemplation of law from the civil rights claims based upon the same alleged misconduct of the public officials. Finally, this issue is obviously effectively unreviewable on appeal from a final judgment because once Johnson goes through the requirement of exhausting his state remedies by way of habeas corpus, the issue whether he was required to do so or not will be moot.
The Fifth Circuit's analysis in Johnson is supported by two recent United States Supreme Court decisions that examine the applicability of the collateral order exception to an order staying federal proceedings. In Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 108 S.Ct. 1133, 99 L.Ed.2d 296 (1988), the Court held that the denial of a motion to stay a federal cause of action pending similar state court litigation was not appealable because it failed to meet the initial Cohen requirement of a conclusive determination of the disputed question. Id. at 276-78, 108 S.Ct. at 1136-38. The court explained that:
whereas the granting of a [stay or dismissal] necessarily implies an expectation that the state court will resolve the Id. at 278, 108 S.Ct. at 1138 (emphasis added).
dispute,.... a district court usually will expect to revisit and reassess an order denying a stay in light of events occurring in the normal course of litigation. Because an order denying a [motion to stay or dismiss] is 'inherently tentative' in this critical sense ... the order is not a conclusive determination within the meaning of the collateral-order doctrine and therefore is not appealable under § 1291
In Moses H. Cone Memorial Hospital v. Mercury Construction Corp., 460 U.S. 1, 103 S.Ct. 927, 74 L.Ed.2d 765 (1983), the Court concluded that the granting of a stay pending the outcome of a parallel state court proceeding was appealable within the collateral order exception. Id. at 11, 103 S.Ct. at 934-35. Although the Court recognized that the stay was technically "subject to reopening at the discretion of the district judge," the Court found "no basis to suppose that the District Judge contemplated any reconsideration of his decision to defer to the parallel state-court suit." Id. at 12-13, 103 S.Ct. at 935-36 (footnote omitted).
The government defendants argue that the bases for upholding interlocutory review in Moses H. Cone and Johnson are inapplicable to the instant matter because both of these cases involved a stay pending a factual determination of common issues in a state court proceeding. They contend that immediate interlocutory appellate review was necessary in Moses H. Cone and Johnson because a stay denied the appellants an evidentiary hearing before a federal trial court.
This argument completely ignores each of the factors set forth in Cohen. First, the stay order in this case conclusively determines the question whether the validity of the conviction must be determined in a habeas corpus proceeding. Second, the question regarding the validity of Marchetti's conviction in a habeas corpus proceeding is an important issue that is completely separate from the merits of Marchetti's civil rights action. Third, the validity of the stay order would escape review because of mootness on an appeal from a final judgment in the civil rights action.
Because we conclude that we have jurisdiction of the district court's order under the collateral order exception to section 1291, we do not reach the question whether the stay is appealable under 28 U.S.C. § 1292(a)(1) as an order granting injunctive relief. Our determination of the jurisdictional question also obviates any need to consider Marchetti's request that we treat this appeal as a petition for a writ of mandamus under 28 U.S.C. § 1651. See, e.g., Silberkleit v. Kantrowitz, 713 F.2d 433, 434 n. 1 (9th Cir.1983) ().
We next examine the merits of Marchetti's contention that the district court erred in staying his civil rights action pending exhaustion of his...
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