Taylor v. Cnty. of Pima

• Decision Date: 17 January 2019
• Docket Number: No. 17-16980,17-16980
• Citation: 913 F.3d 930
• Parties: Louis TAYLOR, a Single Man, Plaintiff-Appellee, v. COUNTY OF PIMA, a Body Politic; City of Tucson, a Body Politic, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

913 F.3d 930

Louis TAYLOR, a Single Man, Plaintiff-Appellee,

v.COUNTY OF PIMA, a Body Politic; City of Tucson, a Body Politic, Defendants-Appellants.

No. 17-16980

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 15, 2018 San Francisco, California

Filed January 17, 2019

GRABER, Circuit Judge:

In 1972, a jury convicted Louis Taylor in Arizona state court of 28 counts of felony murder, on the theory that he had started a deadly fire at a Tucson hotel. In 2012, while still in prison, Taylor filed a state post-conviction petition advancing newly discovered evidence: an expert, using new and more sophisticated investigative techniques, determined that arson did not cause the hotel fire. The government disputed Taylor’s new theory but nevertheless agreed to the following procedure. The government and Taylor entered into a plea agreement in 2013 under which the original convictions were vacated and, in their place, Taylor pleaded no contest to the same counts, was resentenced to time served, and was released from prison.

Taylor then sued Pima County and the City of Tucson in state court, under 42 U.S.C. § 1983, alleging violations of his constitutional rights to due process and a fair trial. With respect to the County, Taylor alleged unconstitutional practices, policies, and customs regarding criminal prosecutions, including racially motivated prosecutions of African-Americans and a failure to train and supervise deputy prosecutors. The City removed the case to federal court, and the County consented to removal.

The County then moved to dismiss Taylor’s operative complaint. Two of the County’s arguments are relevant on appeal. First, the County argued that the relevant government officials acted on behalf of the State, not the County; the County asserted that, accordingly, it was entitled to "Eleventh Amendment immunity." Second, the County argued that, because all of Taylor’s time in prison was supported by the valid 2013 criminal judgment, Taylor could not recover damages for wrongful incarceration.

The district court granted in part and denied in part the motion to dismiss. The court held that the County was not entitled to Eleventh Amendment immunity. But the court agreed with the County that Taylor could not recover damages for wrongful incarceration. The district court then certified its order for interlocutory appeal pursuant to 28 U.S.C. § 1292(b), concluding that resolution of several legal issues "may materially advance the ultimate termination of the litigation."

Both parties applied to this court for permission to appeal. See 28 U.S.C. § 1292(b) (permitting an "application for an appeal hereunder"). The County sought permission to appeal the district court’s denial of immunity, and Taylor sought permission to appeal the district court’s ruling that he may not recover damages for wrongful incarceration.

A motions panel of this court denied both applications to appeal pursuant to § 1292(b). But the motions panel construed the County’s application, in part, as a timely notice of appeal from the denial of Eleventh Amendment immunity from suit. See Cortez v. County of Los Angeles , 294 F.3d 1186, 1188 (9th Cir. 2002) (holding that we have appellate jurisdiction under the collateral-order doctrine over a denial of Eleventh Amendment immunity from suit (citing Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc. , 506 U.S. 139, 147, 113 S.Ct. 684, 121 L.Ed.2d 605 (1993) ) ). The motions panel therefore ordered that the appeal proceed under the collateral-order doctrine of 28 U.S.C. § 1291.

In accordance with that order, the parties then filed briefs addressing the issue of the County’s asserted immunity under the Eleventh Amendment. At our request, the parties also filed supplemental briefs addressing whether Taylor may recover damages for wrongful incarceration.

A. Eleventh Amendment Immunity

The County asserts that we have jurisdiction to review the district court’s ruling on Eleventh Amendment immunity under the two jurisdictional provisions noted above: discretionary review under § 1292(b) and the collateral-order doctrine under § 1291.

"When a party seeks a section 1292(b) interlocutory appeal, the court of appeals must undertake a two-step analysis." Arizona v. Ideal Basic Indus. (In re Cement Antitrust Litig. ), 673 F.2d 1020, 1026 (9th Cir. 1982). First, we determine whether the appeal meets the legal requirements of § 1292(b). Id. "If we conclude that the requirements have been met, we may, but need not, exercise jurisdiction. The second step in our analysis is therefore to decide whether, in the exercise of the discretion granted us by the statute, we want to accept jurisdiction." Id. ; see 28 U.S.C. § 1292(b) ("The Court of Appeals ... may thereupon, in its discretion , permit an appeal to be taken from such order...." (emphasis added) ); see also Gelboim v. Bank of Am. Corp. , ––– U.S. ––––, 135 S.Ct. 897, 906, 190 L.Ed.2d 789 (2015) (stating that a district court’s certification under § 1292(b)"may be accepted or rejected in the discretion of the court of appeals"). Where, as here, the motions panel has decided the § 1292(b) issue in the first instance, "we give deference to the ruling of the motions panel." Kuehner v. Dickinson & Co. , 84 F.3d 316, 318 (9th Cir. 1996). With respect to the question of Eleventh Amendment immunity, we see no reason to second-guess the motions panel’s denial of interlocutory review under § 1292(b).

We therefore turn to whether we have appellate jurisdiction under § 1291. On preliminary review, the motions panel concluded that appellate jurisdiction appeared to be proper under the collateral-order doctrine because the County asserted "Eleventh Amendment immunity." "Although we defer to the ruling of the motions panel granting an order for interlocutory appeal, we have an independent duty to confirm that our jurisdiction is proper." Reese v. BP Expl. (Alaska) Inc. , 643 F.3d 681, 688 (9th Cir. 2011) (internal quotation marks omitted). For the reasons stated below, we now conclude that the collateral-order doctrine does not apply here.

In an interlocutory appeal, we have appellate jurisdiction under 28 U.S.C. § 1291 to consider claims of immunity from suit , but we lack such appellate jurisdiction to consider claims of immunity from liability . SolarCity Corp. v. Salt River Project Agric. Improvement & Power Dist. , 859 F.3d 720, 725 (9th Cir. 2017). Under Puerto Rico Aqueduct , 506 U.S. at 144–45, 113 S.Ct. 684, an ordinary claim of Eleventh Amendment immunity encompasses a claim of immunity from suit. The rationale of Puerto Rico Aqueduct is that an interlocutory appeal is necessary to vindicate a state entity’s entitlement to immunity from suit, which would be lost if a case were permitted to go to trial. Id. But an immunity from liability may be vindicated fully after final judgment, so the collateral-order doctrine does not encompass an interlocutory appeal from a denial of immunity from liability. See SolarCity , 859 F.3d at 725 ("Unlike immunity from suit, immunity from liability can be protected by a post-judgment appeal. Denials of immunity from liability therefore do not meet the requirements for immediate appeal under the collateral-order doctrine." (citation omitted) ).

Before us, Taylor argued that the County, by consenting to removal of the case to federal court, waived Eleventh Amendment immunity. See Lapides v. Bd. of Regents of Univ. Sys. , 535 U.S. 613, 624, 122 S.Ct. 1640, 152 L.Ed.2d 806 (2002) (holding that the state’s consenting to removal to federal court "waived its Eleventh Amendment immunity" with respect to state law claims); Embury v. King , 361 F.3d 562, 566 (9th Cir. 2004) (extending Lapides to federal law claims and announcing "a straightforward, easy-to-administer rule in accord with Lapides : Removal waives Eleventh Amendment immunity."). In response, the County cited decisions from other circuits that have held that removal waives immunity from suit but does not waive immunity from liability. See, e.g. , Stroud v. McIntosh , 722 F.3d 1294, 1301 (11th Cir. 2013) ("We hold that although the Board’s removal to federal court waived its immunity-based objection to a federal forum, the Board retained its immunity from liability...."). The County clarified that, in this case, it was asserting only immunity from liability. See, e.g. , Reply Brief at 17 ("Pima County asserted Eleventh Amendment immunity as a substantive bar to Taylor’s claim.... In other words, it was asserted as a bar to liability rather than a bar to the federal court’s ability to hear Taylor’s claim." (emphasis added) ). The County’s asserted immunity from liability can be vindicated fully after final judgment; accordingly, the collateral-order doctrine of § 1291 does not apply here. SolarCity , 859 F.3d at 725.

In conclusion, we exercise our discretion under § 1292(b) to deny the County’s application for permission to appeal, and we conclude that § 1291 ’s collateral-order doctrine does not apply. We therefore dismiss the County’s appeal.

B. Damages for Wrongful Incarceration

1. Appellate Jurisdiction

Taylor asks us to exercise our discretion under § 1292(b) to reconsider the motions panel’s denial of his application for permission to appeal. He asks that we review the district court’s ruling that he may not recover compensatory damages for wrongful incarceration. In the highly unusual circumstances of this case, we agree to review that issue.

Taylor seeks other forms of relief, such as nominal damages, so the district court’s ruling does not dispose of his case entirely. But Taylor emphasizes the importance of the incarceration-related damages. From a practical standpoint, the district court’s ruling likely resolves a substantial portion of his case. Moreover, if we decline to review this issue now, he will not be able to obtain review until after discovery and, possibly, a trial. That ordinary result from a denial of interlocutory review has, in Taylor’s...