Opinion
Case No. CV-04-3818-RMT (MANx).
May 3, 2006
ORDER (1) DENYING DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS AND (2) DENYING PLAINTIFF'S REQUEST FOR CHUMAN CERTIFICATION
This matter is before the Court on the Motion for Judgment on the Pleadings by Defendants Debra Yang, George Cardona, Leon Weidman, Alka Sagar, David Pinchas, Charles Mullaly and Gregory Gaioni and on the Request for Chuman certification by Plaintiffs Anthony Hart and Darla Motley. The Court, having considered the pleadings in this matter, finds that judgment on the pleadings is not warranted and that Plaintiffs' request for Chuman certification should be denied.
Procedural Background
As stated in this court's November 14, 2005 order dismissing Plaintiffs' access to the courts claim, Plaintiffs initiated this lawsuit in July 2004 against five attorneys from the United States Attorney's Office ("USAO Defendants") and two federal agents, Gregory Gaioni and Charles Mullaly. Plaintiffs allege that USAO Defendants deliberately sought to derail their underlying civil rights lawsuits by leaking information regarding a grand jury investigation of their attorney, Stephen Yagman, to the press and then attempting to disqualify him with an article which was generated by that leak.
USAO Defendants are Debra Yang, George Cardona, Leon Weidman, David Pinchas, and Alka Sagar.
Plaintiff Hart's suit is against all Defendants. Plaintiff Motley's suit is against all Defendants except Gaioni and Mullaly.
The underlying civil rights lawsuits are Motley, et al. v. Parks et al., CV 00-1472-MMM (Shx) and Hart v. Gaione, CV 02-1331-RMT(MANx).
In January 2005, this court granted in part and denied in part Defendants' Motion to Dismiss, finding that Plaintiffs had set forth a valid Bivens claim based on a violation of their constitutional right of access to the courts. The court also ruled that Defendants were entitled to absolute immunity to the extent Plaintiffs' claim was based on the filing of judicial inquiry notices by USAO Defendants. Ten months later, the court dismissed Plaintiffs' access to the courts claim on the basis of ripeness, noting, however, that Plaintiffs' First Amendment claim for interference with the attorney-client relationship survived the court's dismissal. The court also noted, without recognizing the conflict with the January 2005 absolute immunity ruling, that any attorney's fees incurred litigating the motions for disqualification constituted an injury sufficient to support an access to the courts claim.
The court also dismissed Plaintiffs' Fourth Amendment claims.
Defendants now move for judgment on the pleadings, asserting: (1) Defendants are entitled to qualified immunity as to Plaintiffs' remaining claim because the facts alleged do not establish a violation of Plaintiffs' First Amendment associational right and such a right was not clearly established in June 2003; (2) Plaintiffs have not alleged a cognizable injury in this case; and (3) relief underBivens is not available where the only alleged injury is attorney's fees incurred in the underlying litigation. Analysis I. Standard for a Motion for Judgment on the Pleadings
Plaintiffs contend Defendants' motion violates the meet and confer requirements set forth in Local Rule 7-3 insofar as it is based on the Ninth Circuit's issuance of its en banc opinion inMotley v. Parks and this court's dismissal of Hart v. Gaione, both of which occurred after the meeting between the parties. Defendants, however, could not have anticipated these rulings and should not be penalized for failing to raise them during the Local Rule 7-3 meeting.
Plaintiffs assert Defendants' motion is really a motion for reconsideration of this court's earlier rulings, or alternatively, that the motion should be construed as one for summary judgment so that Plaintiffs may conduct "very limited discovery", specifically, a deposition of Daily Journal reporter David Houston. These contentions lack merit. The issue of Plaintiffs' First Amendment claim for interference with the attorney-client relationship did not come to light until Plaintiffs' opposition to Defendants' March 2005 Motion for Judgment on the Pleadings. As such, the viability of this claim has never before been addressed. Additionally, Plaintiffs contend Defendants' motion should be treated as a motion for summary judgment because it considers facts outside of the amended complaint. Plaintiffs, however, do not point to the specific facts they contend are outside of the pleadings. Furthermore, Defendants' motion assumes the truth of Plaintiffs' factual allegations.
"Judgment on the pleadings is proper when the moving party clearly establishes on the face of the pleadings that no material issue of fact remains to be resolved and that it is entitled to judgment as a matter of law." Like a motion to dismiss, the facts alleged by the non-moving party are presumed true for purposes of a motion for judgment on the pleadings. Qualified Immunity Challenge
Hal Roach Studios, Inc. v. Richard Feiner Co., 896 F.2d 1542, 1550 (9th Cir. 1989).
Id.
In assessing whether Defendants are entitled to qualified immunity, the court must first determine whether the facts alleged, and taken in the light most favorable to Plaintiffs, establish that Defendants violated Plaintiffs' constitutional rights. If a constitutional violation is alleged, the court must then consider whether the right was clearly established when the alleged violation occurred. a) Plaintiffs have alleged a constitutional violation
Saucier v. Katz, 533 U.S. 194, 201 (2001).
Id. at 202.
"[T]he right to hire and consult an attorney is protected by the First Amendment's guarantee of freedom of speech, association and petition." This right encompasses "an individual's ability to consult with counsel on legal matters" without impediment by the government. Furthermore, the government cannot retaliate against a plaintiff for obtaining legal counsel.
Mothershed v. Justices of the Supreme Court, 410 F.3d 602, 611 (9th Cir. 2005) (quoting Denius v. Dunlap, 209 F.3d 944, 953 (7th Cir. 2000)).
Denius, 209 F.3d at 954.
DeLoach v. Bevers, 922 F.2d 618, 620-621 (10th Cir. 1990); Malik v. Arapahoe County Dept. of Social Services, 987 F. Supp 868, 880-881 (D. Colo. 1997).
Plaintiffs' complaint alleges that Defendants interfered with the attorney-client relationship in the underlying lawsuits by leaking information about Plaintiffs' counsel to the press in an attempt to disqualify him. Defendants, while recognizing the basic legal premise set forth above, nonetheless assert that, because there is no constitutional right to an attorney of Plaintiffs' choosing, Plaintiffs' claim would only be actionable if Defendants' alleged misconduct deprived Plaintiffs of their right to consult with any counsel. Defendants also challenge the viability of this claim on the basis that Plaintiffs cannot show they were injured by the alleged misconduct given the Ninth Circuit's en banc opinion in Motley v. Parks and this court's order granting summary judgment in Hart v. Gaione. Likewise, Defendants, citing Buckley v. Fitzsimmons and Michaels v. New Jersey, contend that to the extent Plaintiffs' alleged injuries flow from the filing of judicial inquiry notices by USAO Defendants, including attorney's fees incurred in opposition to those motions, Plaintiffs cannot obtain relief because such conduct, and all that stems from it, is subject to absolute immunity. Lastly, Defendants raise the special factors doctrine in support of their position that Bivens relief is unavailable for the recovery of attorney's fees incurred in the underlying litigation.
FAC ¶¶ 18 and 22.
Michaels v. New Jersey, 222 F.3d 118, 122-123 (3rd Cir. 2000) (upholding district court's grant of qualified immunity to state court prosecutors and police personnel in a § 1983 action for their involvement in the improper questioning of child-witnesses in the plaintiff's underlying criminal lawsuit because the plaintiff's due process rights were not violated by the questioning of the witnesses, but only by the presentation of their testimony before the grand jury and at trial, conduct for which the prosecutor was entitled to absolute immunity); Buckley v. Fitzsimmons, 20 F.3d 789, 795 (7th Cir. 1994) (holding that a plaintiff failed to establish a constitutional violation where prosecutors obtained "obviously false" confessions in plaintiff's underlying criminal lawsuit and that "using the confession could violate Buckley's rights but would be covered by absolute immunity.").
An improper press leak by the government regarding the criminal investigation of an attorney, for the purpose of undermining a plaintiff's civil rights suit, impedes the attorney-client relationship and poses a risk of substantial harm to that relationship. A civil rights plaintiff, having undertaken the considerable effort of finding and hiring an attorney, undoubtedly places a tremendous amount of confidence in that particular attorney's ability to pursue his grievances against the government. When confidential information is leaked to the press by defendants targeted by that suit for the purpose of hindering counsel's ability to go forward in the lawsuit, a plaintiff's perception of his ability to succeed on his claims will likely be, at the very least, diminished. Such conduct may very well discourage or intimidate a plaintiff from pursuing his claims. It is also conceivable that an attorney who believes he has been unfairly targeted by the government for his work on a case may fall short of his duty to zealously advocate on behalf of his client for fear of further retaliation. The attorney-client relationship cannot be so burdened.
With respect to the issue of injury, the court notes that in the Ninth Circuit an alleged violation of a plaintiff's constitutional right is cognizable even absent actual damages. As discussed above, it is possible for unconstitutional interference with the attorney-client relationship to occur separate and apart from the filing of judicial inquiry notices and to that extent an injury to Plaintiffs' First Amendment Associational right is sufficient to state a claim regardless of whether Plaintiffs suffered any actual damages. Lastly, because Plaintiffs' complaint alleges a violation of the First Amendment for which there is no alternative avenue of redress, relief is available underBivens. Accordingly, to the extent Defendants' alleged misconduct occurred separate and apart from the filing of judicial inquiry motions, Plaintiffs have alleged a constitutional violation of their First Amendment associational right. b) The First Amendment associational right to consult with an attorney without inappropriate government interference was clearly established at the time of the alleged misconduct
Wilks v. Reyes, 5 F.3d 412, 416 (9th Cir. 1993) (finding a plaintiff entitled "to an award of nominal damages if the defendant violated the plaintiff's constitutional right, without a privilege or immunity, even if the plaintiff suffered no actual damage.").
It should be noted that to the extent Plaintiffs' injuries, including any attorney's fees, flow from the filing of judicial inquiry notices, such injuries are not cognizable in light of the court's absolute immunity ruling. Michaels, 222 F.3d at 122-123; Buckley, 20 F.3d at 795. The court recognizes that this conclusion conflicts with its finding in the November 2005 order that Plaintiffs would have suffered an injury sufficient to support an access to the courts claim if they incurred attorney's fees litigating the motions for disqualification. To such an extent, that order is overruled.
The court's assessment of whether a constitutional right was clearly established "must be undertaken in light of the specific context of the case, not as a broad general proposition" so as not to eviscerate the scope of qualified immunity. Thus, "[t]he contours of the right must be sufficiently clear that a reasonable officer would understand that what he is doing violates that right." It is not necessary for there to be pre-existing case law declaring "the very act in question . . . unlawful." "In other words, while there may be no published cases holding similar policies constitutional, this may be due more to the obviousness of the illegality than the novelty of the legal issue."
Saucier, 533 U.S. at 201.
Anderson v. Creighton, 483 U.S. 635, 640 (1987).
Id.
Moreno v. Baca, 431 F.3d 633, 641 (9th Cir. 2005) (quoting Sorrels v. McKee, 290 F.3d 965, 970 (9th Cir. 2002)).
At the time of the alleged misconduct, at least two courts had found the First Amendment associational right to hire and consult an attorney without retaliation by the government clearly established for purposes of qualified immunity. Moreover, given that Defendants in this action include attorneys from the United States Attorney's Office, they undoubtedly had fair notice that leaking confidential information to the press regarding Plaintiffs' counsel for the purpose of harming Plaintiffs' underlying lawsuits or the attorney-client relationship could infringe Plaintiffs' First Amendment right to consult and obtain legal counsel without government impediment or retaliation.
DeLoach, 922 F.2d at 620-621; Malik, 987 F. Supp at 880-881.
Defendants rely on dicta in the Ninth Circuit's Mothershed v. Justices of the Supreme Court that "the First Amendment's applicability in the area of lawyer-client relations is not well defined" in support of their qualified immunity claim. However, this statement must be considered within the context of the unique facts of that case, namely an Oklahoma attorney's challenge to Arizona's authority to regulate the practice of law within its borders, claiming that Arizona violated the First Amendment by restricting the practice of law to members of its state bar and out-of-state attorneys admitted pro hac vice. As stated numerous times by this court, Plaintiffs have a right to pursue claims against the government free from improper government interference. Where, as here, it is alleged that such interference targets the attorney-client relationship, a constitutional violation of a clearly established right has been sufficiently alleged such that the claim is not subject to judgment on the pleadings on the basis of qualified immunity.
Id. Moreover, as cited above, the Ninth Circuit went on to recognize that "as a general matter — the `right to hire and consult an attorney is protected by the First Amendment's guarantee of freedom of speech, association, and petition.'"Id.
II. Plaintiffs' Request for Chuman Certification Chuman certification is appropriate where "the district court find[s] that the defendants' claim of qualified immunity is frivolous or has been waived." The court finds that defendants' qualified immunity claim is neither frivolous nor waived.
Chuman v. Wright, 960 F.2d 104, 105 (9th Cir. 1992).
Accordingly,
IT IS ORDERED that Defendants' motion for judgment on the pleadings is DENIED;
IT IS FURTHER ORDERED that Plaintiffs' request for Chuman certification is DENIED.