Government Liability Update

Pretrial Release Officer Not Entitled to Absolute Immunity for Submitting Unsigned Arrest Warrant Application to Court

In Patterson v. Van Arsdel, published February 23, 2018, a divided 9th Circuit panel reversed dismissal of a 42 U.S.C. section 1983 lawsuit against a pretrial release officer.  The complaint alleged that when the plaintiff was arrested while on pretrial release, the defendant moved at her arraignment to revoke the plaintiff's pretrial release and for her arrest.  The calendar judge orally denied the motion, noting that the plaintiff had already posted bail.  The defendant then went to another judge, with whom he allegedly had a friendship and for whom the defendant's wife was judicial assistant, and gave the judge an unsigned warrant for the plaintiff's arrest.  The judge signed the warrant, and plaintiff was arrested.  She was released two days later because the arrest warrant was defective.  The plaintiff sued the defendant for allegedly violating her Fourth Amendment rights.  The district court dismissed the complaint based on absolute prosecutorial immunity.

The 9th Circuit panel majority held that the defendant was not entitled to absolute prosecutorial immunity.  Because the defendant's job was to verify release criteria information and to make recommendations to a judge on release, but had no power to make release decisions himself, his job was similar to that of a parole or law enforcement officer.  He was not acting in a prosecutorial capacity.  He was therefore entitled only to qualified immunity.  A dissenting judge opined that the issue decided had been waived by the plaintiff, and that the majority was making bad law out of bad facts.

Police Supervisors Violated Clearly-Established Law if They Terminated Probationary Officer for Extramarital Affair

In Perez v. City of Roseville, published February 9, 2018, the 9th Circuit reversed in part summary judgment in favor of a former probationary police officer's supervisors in a 42 U.S.C. section 1983 suit challenging her termination.  An internal affairs investigation determined that the plaintiff was involved in an extramarital affair with another officer.  The investigation was initiated because of a complaint that the officers were engaging in sexual relations on duty.  That portion of the allegation was not corroborated.  The department terminated the officer based on a number of reasons purportedly unrelated to the affair.  The officer alleged that the termination violated her constitutional rights to privacy and intimate association.  She also alleged that the termination violated her due process right to a liberty interest hearing before termination. She further alleged sex discrimination.

The 9th Circuit, disagreeing with other circuits, held that the defendants violated the plaintiff's rights to intimate association and privacy if they terminated her based on disapproval of her off-duty sexual activity and the activity did not affect her job performance or violate a narrowly-tailored regulation.  Further, 9th Circuit precedent had clearly established that rule, so the defendants were not entitled to qualified immunity.  Issues of fact on whether the termination was impermissibly based on those factors prevented summary judgment.  The defendants were, however, entitled to summary judgment to the due process claims.  Any due process rights a probationary officer had under the circumstances were not clearly established at the time.  Summary judgment on the sexual discrimination claim was also upheld; any discrimination was based on the plaintiff's activities, not her gender.

Pro Se Prisoner's Exhaustion of Administrative Remedies Does Not Affect Accrual of Claim, but May Equitably Toll Statute of LImitations

In Soto v. Unknown Sweetman, published February 9, 2018, a divided 9th Circuit panel affirmed a district court's grant of summary judgment to the defendants in a pro se prisoner's 42 U.S.C. section 1983 action against several prison guards.  The plaintiff alleged that in 2010 he was beaten by the defendant guards.  He did not file suit until 2014.  The defendants sought summary judgment based on the two-year statute of limitations.   The plaintiff argued that his exhaustion of the state law administrative remedies delayed accrual of his cause of action until exhaustion was complete, since the Prison Litigation Reform Act requires exhaustion before a federal lawsuit is brought.  He alternatively argued that exhaustion equitably tolled his time to sue.  The district court rejected both arguments.

The 9th Circuit panel unanimously held that the PRLA's exhaustion requirement does not affect the date of accrual of a pro se prisoner's cause of action.  The policies served by statutes of limitation are not furthered by delaying the start of the time to sue until exhaustion.  The court held that unfairness when the exhaustion period exceeds the statute of limitations is best served by equitably tolling the limitations period during exhaustion.

The majority also held, however, that the plaintiff had failed to raise a factual issue on whether he was entitled to equitable tolling.  Although he argued that the exhaustion period took over four years, because he waited for an administrative body to notify him of the conclusion of its investigation before he began the next step of his exhaustion requirement, the majority ruled that he failed to submit sworn evidence that he had relied on the investigation in delaying his exhaustion or that he had diligently pursued his remedies.  To the contrary, the evidence showed that the plaintiff did not wait for the conclusion of the investigation before re-starting the administrative exhaustion requirement.  It also did not show diligence.  He therefore failed to show entitlement to equitable tolling.

A dissenting judge opined that the majority had failed to give the plaintiff the latitude to which pro se prisoners are entitled, and had come up with arguments that the defendants did not make in their answering brief.

 

Homeowners Associations Have Standing to Sue for Inverse Condemnation of Common Areas

In Sierra Palms Homeowners Association v. Metro Gold Line Foothill Extension Construction Authority, published January 29, 2018, the Second District Court of Appeal, Division 7 reversed the dismissal after demurrer of a homeowner's association's suit against a public transit entity.  The homeowners association sued the Authority for allegedly interfering with the homeowners' quiet enjoyment and damaging property, including the condominium complex's boundary wall, amounting to a taking of property without just compensation.  Based on failure to timely present a claim, the causes of action were narrowed down to inverse condemnation.  The Authority demurred on the ground that the Association had no standing to sue for inverse condemnation, because it had no ownership interest in the property.  The Association did not file an opposition to the demurrer.  The trial court sustained it and dismissed the case.

The appellate court ruled that the trial court abused its discretion in not granting leave to amend.  To obtain leave to amend, a plaintiff must show how the complaint could be reasonably amended.  The showing may be made for the first time on appeal.  For the first time on appeal, the Association advanced an argument that it had standing under Civil Code section 5980.  That statute specially affords homeowners associations standing to sue for damage to common areas or separate areas the association has an obligation to maintain and repair.  As a matter of first impression, the court ruled that section 5980 gives homeowners associations standing to sue for inverse condemnation based on damage to common areas, such as the Association's boundary wall.