Cousins v. Lockyer

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLIAM HENRY COUSINS, 

Plaintiff-Appellant,

v.

BILL LOCKYER, (former) Attorney

General of California, in his

official capacity; RICHARD RIMMER, No. 07-17216

(former) Director of the California

Department of Corrections and  D.C. No.

CV-07-01165-SBA

Rehabilitation (CDCR), in his

OPINION

individual capacity; ROSEANNE

CAMPBELL, (former) Warden of

Mule Creek State Prison, in her

individual capacity; and JOHN/JANE

DOES 1 through x,

Defendants-Appellees.



Appeal from the United States District Court

for the Northern District of California

Saundra B. Armstrong, District Judge, Presiding

Argued and Submitted

April 13, 2009—San Francisco, California

Filed June 15, 2009

Before: Thomas G. Nelson, Andrew J. Kleinfeld, and

Milan D. Smith, Jr., Circuit Judges.

Opinion by Judge Milan D. Smith, Jr.

7139

COUSINS v. LOCKYER 7143

COUNSEL

Dennis Cunningham & William Gordon Kaupp, Law Offices

of Dennis Cunningham, San Francisco, California, for the

plaintiff-appellant.

Wilfred T. Fong, Office of the California Attorney General,

Oakland, California, for the defendants-appellees.

OPINION

MILAN D. SMITH, JR., Circuit Judge:

William Henry Cousins (Cousins) appeals from the dis-

missal of his 42 U.S.C. § 1983 complaint against several Cali-

fornia state officials, in which he alleges that he was

wrongfully imprisoned for an additional nineteen months after

a California appellate court overturned the statute under

7144 COUSINS v. LOCKYER

which he was incarcerated. He argues that the officials

breached their alleged duties to monitor whether his sentence

was void under the invalidated statute and to take steps to

effectuate his release. He also asserts that the district court

erred in determining that the former Attorney General is enti-

tled to absolute prosecutorial immunity, and that the remain-

ing defendants are entitled to qualified immunity.

We affirm the district court’s judgment regarding Cousins’

federal claims because they fall within the scope of the former

Attorney General’s duties as a criminal prosecutor, and

because Cousins cannot show that any federal constitutional

right that may have been violated by the remaining defendants

was clearly established in law. However, we reverse and

remand Cousins’ state causes of action. His state false impris-

onment claim is not subject to any state statutory immunity;

his remaining state claims are all derivative of that claim; and

none of his state claims is subject to the federal common law

doctrine of qualified immunity.

FACTUAL AND PROCEDURAL BACKGROUND

Cousins, a former California prison inmate, filed this

§ 1983 action against several state officials, alleging that he

was wrongfully incarcerated beyond the time he should have

been released. The defendants are Bill Lockyer, the former

state Attorney General (AG), Richard Rimmer, the former

director of the California Department of Corrections and

Rehabilitation (CDCR director), and Roseanne Campbell, the

former warden of Mule Creek State Prison (MCSP warden),

all of whom are being sued in their individual capacities.

Cousins also names various John/Jane Doe employees of the

Attorney General’s Office “who had the knowledge and/or

responsibility to ensure [his] incarceration was ended by tak-

ing steps to cause [his] release.”

Cousins was arrested in June 1999, in San Jose, California,

and charged under California Penal Code § 290(g)(2) with

COUSINS v. LOCKYER 7145

failure to register with the police department within five days

of entering the city. In October 1999, the Santa Clara District

Attorney filed a two-count information against Cousins, alleg-

ing that (1) he failed to register as a sex offender with a felony

conviction, as required by California Penal Code

§ 290(a)(1)(A); and (2) he failed to inform law enforcement

of his new address, as required by California Penal Code

§ 290(f)(1).

In January 2000, a jury convicted Cousins on Count Two,

and he received a sentence of twenty-five years to life in

prison under California’s “three strikes” law. His conviction

was affirmed on appeal in November 2002, and a petition for

rehearing by the California Court of Appeal, Sixth Appellate

District, was denied later that month. The California Supreme

Court denied Cousins’ petition for review in February 2003.

In October 2003, the California Court of Appeal, First

Appellate District, decided People v. North, 5 Cal. Rptr. 3d

337 (Cal. Ct. App. 2003), in which the court declared Califor-

nia Penal Code § 290(f)(1), the statute under which Cousins

had been incarcerated, unconstitutionally vague. The state did

not seek review of the North decision.

In January 2004, Cousins filed a writ of habeas corpus in

the California Supreme Court, arguing that he was entitled to

release because the statute under which he was imprisoned

had been declared unconstitutional. More than a year later, the

state responded to Cousins’ petition, and argued that even

though California Penal Code § 290(f)(1) had been declared

unconstitutionally vague, it was still valid in his case. The

California Supreme Court issued an order to show cause upon

the CDCR director, and the Attorney General’s Office subse-

quently agreed that Cousins’ writ should issue. Cousins was

released from prison in June 2005, approximately one year

and seven months after the North court overturned California

Penal Code § 290(f)(1).

7146 COUSINS v. LOCKYER

In February 2007, Cousins filed a complaint in federal dis-

trict court, alleging that his extended incarceration violated

several state laws and his civil rights under § 1983. His com-

plaint named as defendants the AG, the CDCR director, and

the MCSP warden, as well as the State of California, the Cali-

fornia Department of Corrections, and the California Depart-

ment of Justice. Cousins amended his complaint in August

2007, dropping the state entities as defendants.

Cousins’ first amended complaint alleges that the AG, the

CDCR director, and the MCSP warden, in their individual

capacities, breached specific duties owed to him. Cousins

asserts that the AG “had a duty to inform the trial court in . . .

Cousin[s’] conviction and various officials in the CDCR

including, but not limited to, the Director of the CDCR, as

well as the Warden of Mule Creek.” Cousins further alleges

that the CDCR director and the MCSP warden had:

a duty to discover when statutes in the Penal Code

are invalidated, . . . a duty to discover who was

incarcerated under the invalid statute, as well as a

duty to determine the effect on all sentences affected

by the change in law, . . . [and] to inform the trial

court that Plaintiff[’s] sentence was no longer autho-

rized by law.

Cousins states that in breaching these duties, the defendants

violated his federal and state constitutional rights to due pro-

cess, his federal and state constitutional rights to freedom

from unreasonable seizure, and his federal constitutional right

to freedom from cruel and unusual punishment. He also

alleges state claims of negligence, negligent infliction of emo-

tional distress, false arrest and imprisonment, and violation of

the Bane Act.

The defendants filed a motion to dismiss pursuant to Fed-

eral Rule of Civil Procedure 12(b)(6) in September 2007. In

November 2007, the district court issued a written order

COUSINS v. LOCKYER 7147

granting the defendants’ motion on the grounds that the AG

is entitled to absolute prosecutorial immunity, and that the

remaining defendants are entitled to qualified immunity.

Cousins timely appealed.

JURISDICTION AND STANDARD OF REVIEW

We have jurisdiction pursuant to 28 U.S.C. § 1291. We

review a district court’s grant of a motion to dismiss under

Federal Rule of Civil Procedure 12(b)(6), as well as questions

of statutory interpretation, de novo. Silvas v. E*Trade Mort-

gage Corp., 514 F.3d 1001, 1003-04 (9th Cir. 2008). “All

allegations of material fact are taken as true and construed in

the light most favorable to the nonmoving party.” Id. at 1003.

Although “conclusory allegations of law and unwarranted

inferences are insufficient” to avoid a Rule 12(b)(6) dismissal,

Fields v. Legacy Health Sys., 413 F.3d 943, 950 n.5 (9th Cir.

2005) (citation, quotation marks, and alteration omitted), “a

complaint need not contain detailed factual allegations; rather,

it must plead ‘enough facts to state a claim to relief that is

plausible on its face,’ ” Weber v. Dep’t of Veterans Affairs,

521 F.3d 1061, 1065 (9th Cir. 2008) (quoting Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 570 (2007)).

DISCUSSION

Cousins asserts that the district court erred in dismissing his

first amended complaint based on its determinations that the

AG is entitled to absolute prosecutorial immunity, and that the

remaining defendants are entitled to qualified immunity.

A. Federal Claims

1. Federal Prosecutorial Immunity for the AG

[1] Cousins first argues that the district court erred in con-

cluding that the AG is entitled to absolute prosecutorial

immunity from the federal claims on the ground that he was

7148 COUSINS v. LOCKYER

acting within the scope of his duties as a criminal prosecutor.

A state prosecuting attorney enjoys absolute immunity from

liability under § 1983 for his conduct in “pursuing a criminal

prosecution” insofar as he acts within his role as an “advocate

for the State” and his actions are “intimately associated with

the judicial phase of the criminal process.” Imbler v. Pacht-

man, 424 U.S. 409, 410, 430-31 (1976). However, “absolute

immunity may not apply when a prosecutor is not acting as

‘an officer of the court,’ but is instead engaged in . . . investi-

gative or administrative tasks.” Van De Kamp v. Goldstein,

129 S. Ct. 855, 861 (2009) (quoting Imbler, 424 U.S. at 431

n.33). In those instances, only qualified immunity is available.

See Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). To

determine whether an action is judicial, investigative, or

administrative, we look at “ ‘the nature of the function per-

formed, not the identity of the actor who performed it.’ ”

Kalina v. Fletcher, 522 U.S. 118, 127 (1997) (quoting For-

rester v. White, 484 U.S. 219, 229 (1988)).

Here, Cousins alleges that because the California Attorney

General’s Office handled the North appeal that resulted in the

invalidation of California Penal Code § 290(f)(1), the AG is

civilly liable for his failure to notify the trial court and CDCR

officials of the change in the law “so that [Cousins’] sentence

could be changed accordingly.” He also alleges that the AG,

along with the other defendants, “failed to maintain an institu-

tionalized practice that follows changes in the law that

directly affect the incarceration of persons in their custody

and to address those changes . . . by informing the trial court.”

These asserted duties are not “investigative” in nature, as they

do not involve the AG performing the evidence gathering and

witness interviewing functions “normally performed by a

detective or police officer.” See Buckley, 509 U.S. at 273.

Nor, contrary to Cousins’ argument, are they “strictly admin-

istrative and ministerial,” such that the AG may avail himself

only of a qualified immunity defense.

COUSINS v. LOCKYER 7149

[2] First, regardless of whether the AG “knew or should

have known” about the North decision and its impact on

Cousins’ individual conviction, the AG could not have effec-

tuated Cousins’ post-conviction release merely by notifying or

informing the sentencing court or CDCR officials of that

information. Rather, the AG would have had to petition the

court for an order directing such a release—an action entirely

dependent upon his role as an advocate for the State.1 See

Guzman-Rivera v. Rivera-Cruz, 55 F.3d 26, 29-31 (1st Cir.

1995) (holding that “the [state official] defendants[’] fail[ure]

to go to court as prosecutors to undo [the plaintiff ’s] convic-

tion” after a post-conviction investigation established his

innocence did not strip them of prosecutorial immunity,

because such a decision was “at the heart of the prosecutorial

function”); see also Demery v. Kupperman, 735 F.2d 1139,

1144 (9th Cir. 1984) (holding that “prosecutors are absolutely

immune from civil suits alleging wrongdoing with regard to

post-litigation . . . handling of a case”); In re Sandel, 412 P.2d

806, 810 (Cal. 1966) (“The correction of an act of sentencing

in excess of jurisdiction of the court is just as much of a judi-

cial function as the act of sentencing itself, and is likewise

beyond the authority of . . . any other administrative body.”).

[3] Second, to the extent Cousins faults the AG for failing

to maintain an institutionalized information system for track-

ing all California appellate decisions with a direct bearing on

individual prisoners’ convictions (an obligation for which

Cousins cites no legal authority), the Supreme Court has indi-

cated that, even if properly characterized as an attack on an

office’s administrative procedures, such a challenge does not

strip a supervising prosecutor of absolute immunity. See Van

De Kamp, 129 S. Ct. at 861-64. Rather, supervising prosecu-

1

This conclusion is buttressed by the Imbler Court’s observation that the

potential for § 1983 liability could also undermine a prosecutor’s exercise

of his post-conviction ethical duty “to inform the appropriate authority of

after-acquired or other information that casts doubt upon the correctness

of the conviction.” 424 U.S. at 427 n.25.

7150 COUSINS v. LOCKYER

tors retain absolute immunity regarding decisions to create

information management systems where, as here, “determin-

ing the criteria for inclusion or exclusion requires knowledge

of the law,” and where, as here, the information is relevant

only insofar as it relates to the prosecution of a particular case

—in this instance, the AG’s distinctly prosecutorial function

of going to the sentencing court to undo Cousins’ conviction.

See id. at 862-64. As a result, we hold that the district court

properly granted the AG prosecutorial immunity from Cous-

ins’ § 1983 claims.

2. Qualified Immunity for the Remaining

Defendants

[4] Cousins next argues that the district court erred in deter-

mining that the remaining defendants are entitled to qualified

immunity from the federal claims on the ground that he can-

not show that any constitutional right that may have been vio-

lated was clearly established in law. Qualified immunity

protects government officials from civil liability if “their con-

duct does not violate clearly established statutory or constitu-

tional rights of which a reasonable person would have

known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). We

consider qualified immunity using the two-step inquiry set

forth in Saucier v. Katz, 533 U.S. 194 (2001).2 First, we

decide whether the alleged facts make out a violation of a

constitutional right. Id. at 201. If so, we then decide whether

the right at issue was “clearly established” at the time of the

alleged misconduct. Id. The inquiry into whether a right is

clearly established “must be undertaken in light of the specific

context of the case.” Id. In addition, for a right to be clearly

established, its contours “ ‘must be sufficiently clear that a

reasonable official would understand that what he is doing

2

The Supreme Court recently revisited Saucier and concluded that

“while the sequence set forth there is often appropriate, it should no longer

be regarded as mandatory.” Pearson v. Callahan, 129 S. Ct. 808, 818

(2009).

COUSINS v. LOCKYER 7151

violates that right.’ ” Id. at 202 (quoting Anderson v. Creigh-

ton, 483 U.S. 635, 640 (1987)).

[5] In this case, the remaining defendants fully agree with

Cousins that he has a broad federal constitutional right to be

free from wrongful incarceration.3 See, e.g., McNeil v. Dir.,

Patuxtent Inst., 407 U.S. 245, 246 (1972) (holding that contin-

ued incarceration after the lawful basis for custody expires

violates due process under the Fourteenth Amendment); Hay-

good v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (hold-

ing that deliberately indifferent detention of a person beyond

the term permissible by law constitutes cruel and unusual

punishment proscribed under the Eighth Amendment). How-

ever, as the Supreme Court has explained:

[I]f the test of “clearly established law” were to be

applied at this level of generality, it would bear no

relationship to the “objective legal reasonableness”

that is the touchstone of [the Harlow decision].

Plaintiffs would be able to convert the rule of quali-

fied immunity that our cases plainly establish into a

rule of virtually unqualified liability simply by alleg-

ing violation of extremely abstract rights . . . . It

should not be surprising, therefore, that our cases

establish that the right the official is alleged to have

violated must have been “clearly established” in a

more particularized, and hence more relevant, sense.

Anderson, 483 U.S. at 639-40 (citations omitted). In other

words, “the right allegedly violated must be defined at the

appropriate level of specificity before a court can determine

3

Although Cousins’ first amended complaint asserts unreasonable sei-

zure allegations under the Fourth Amendment, he fails to discuss or even

identify that constitutional claim in his brief. As a result, he has waived

that argument on appeal. See Collins v. City of San Diego, 841 F.2d 337,

339 (9th Cir. 1988) (noting that “[i]t is well established in this Circuit that

claims which are not addressed in the appellant’s brief are deemed aban-

doned”).

7152 COUSINS v. LOCKYER

if it was clearly established.” Wilson v. Layne, 526 U.S. 603,

615 (1999). Here, Cousins offers no decisional, statutory, or

other legal basis to suggest that a reasonable official standing

in the defendants’ shoes would have any way of knowing that

by failing to personally check all California appellate court

decisions for changes in the law, failing to apply these

changes to individual inmates statewide, and then failing to

contact the appropriate sentencing courts, he or she was vio-

lating Cousins’ constitutional rights.

[6] Although Cousins argues that “[t]he CDCR operations

manual is replete with references which make clear that the

duties and procedures it prescribes encompass the activities

which are necessary to avoid the deprivation of liberty [he]

suffered,” the remaining defendants are entitled to qualified

immunity from the federal claims because state departmental

regulations do not establish a federal constitutional violation.

See Case v. Kitsap County Sheriff’s Dep’t, 249 F.3d 921, 930

(9th Cir. 2001) (quoting Gardner v. Howard, 109 F.3d 427,

430 (8th Cir. 1997) (“[T]here is no § 1983 liability for violat-

ing prison policy. [Plaintiff] must prove that [the official] vio-

lated his constitutional right . . . .”)); see also Gagne v. City

of Galveston, 805 F.2d 558, 560 (5th Cir. 1986)

(“[A]llegations about the breach of a . . . regulation are simply

irrelevant to the question of an official’s eligibility for quali-

fied immunity in a suit over the deprivation of a constitutional

right.”).

Finally, Cousins’ argument that the district court erred in

dismissing the federal claims against the remaining John/Jane

Doe defendants before they could be identified and impleaded

through the discovery process is misplaced. Since Cousins has

failed to identify, at the appropriate level of specificity, any

clearly established constitutional right that has been violated,

discovery would be futile. Accordingly, we conclude that the

district court properly granted the remaining defendants quali-

fied immunity from Cousins’ § 1983 claims.

COUSINS v. LOCKYER 7153

B. State Claims

1. State Prosecutorial Immunity for the AG

[7] Cousins also contends that the district court erred in

granting the AG state prosecutorial immunity from the state

claims. In determining that the AG enjoyed such immunity,

the district court relied on California Government Code

§ 821.6, which states that “[a] public employee is not liable

for injury caused by his . . . prosecuting any judicial . . . pro-

ceeding within the scope of his employment, even if he acts

maliciously and without probable cause.” However, the Cali-

fornia Supreme Court has expressly held that neither the

immunity afforded by California Government Code § 821.6,

nor that provided by any other state governmental immunity

provision, applies to a false imprisonment claim brought pur-

suant to California Government Code § 815.6. Sullivan v.

County of L.A., 527 P.2d 865, 867-72 (Cal. 1974). We there-

fore hold that the district court erred in applying California

Government Code § 821.6 to Cousins’ state false imprison-

ment claim against the AG.

[8] In such instances, both our precedent and that of the

California Supreme Court require reversal not only of the

state false imprisonment claim, but also of the other, related

state causes of action. In Martinez v. City of Los Angeles, we

reversed in part summary judgment against a plaintiff who

had been detained in Mexico for fifty-nine days after “the

LAPD falsely had him arrested by knowingly or recklessly

providing false information to the Mexican authorities . . .

[and] allowed him to remain in jail in Mexico after they knew

or should have known that he was the wrong man.” 141 F.3d

1373, 1379 (9th Cir. 1998). We held that the LAPD could not

be liable for providing false information, because such a claim

is akin to malicious prosecution, a claim for which govern-

ment officers are immune under California Government Code

§ 821.6. Id. at 1379-80. But we also held that § 821.6 immu-

nity did not apply to the prolonged detention claim, which

7154 COUSINS v. LOCKYER

was akin to a false imprisonment claim. Id. at 1380-81. We

also reversed summary judgment on the state law negligence

and negligent infliction of emotional distress claims to the

extent they were “base[d] . . . on the same facts as his false

imprisonment claim” and “[we]re derivative of the false arrest

and false imprisonment claims.” Id. at 1381-82. We stated

that “[b]ecause the false imprisonment claim grounded on

prolonged detention survives summary judgment, these

claims survive as well.” Id. at 1382.

Similarly, in Asgari v. City of Los Angeles, the California

Supreme Court affirmed a judgment finding state police offi-

cers liable for “false arrest and related causes of action.” 937

P.2d 273, 275 (Cal. 1997) (emphasis added). Specifically, the

court affirmed a finding of liability for both false arrest and

intentional infliction of emotional distress incident to that

false arrest, but reversed the amount of damages because the

court had instructed the jury to consider the period of time

after the false arrest had ended. Id. at 284.

[9] The same logic applies to this case. To the extent Cous-

ins’ negligence and negligent infliction of emotional distress

claims are “based . . . on the same facts,” “are derivative of,”

and are “related” to his false imprisonment claim, both Marti-

nez and Asgari require that we reverse their dismissal as to the

AG because California’s statutory immunities do not apply.

The state constitutional and Bane Act claims against the AG

also survive because they are likewise “based on” and “deriv-

ative of” the state false imprisonment claim.

2. State Immunities for the Remaining Defendants

[10] Finally, Cousins asserts that the district court erred in

summarily dismissing his state claims against the remaining

defendants pursuant to its qualified immunity analysis. We

agree. California law is clear that “ ‘[t]he doctrine of qualified

governmental immunity is a federal doctrine that does not

extend to state tort claims against government employees.’ ”

COUSINS v. LOCKYER 7155

Venegas v. County of L.A., 63 Cal. Rptr. 3d 741, 751 (Cal. Ct.

App. 2007) (quoting Ogborn v. City of Lancaster, 124 Cal.

Rptr. 2d 238, 246 (Cal. Ct. App. 2002)). California law is also

clear that qualified immunity does not apply to state civil

rights claims. See id. at 753 (holding that “qualified immunity

of the kind applied to actions brought under 42 [U.S.C. § ]

1983 does not apply to actions brought under [the Bane

Act]”). In other words, qualified immunity is a doctrine of

federal common law and, as such, has no application to Cous-

ins’ state claims, which are subject only to state statutory

immunities. See Asgari, 937 P.2d at 280 (noting that

“[g]overnmental immunity for claims of violation of civil

rights under section 1983 is not conferred expressly by stat-

ute, but is based upon a judicial gloss on section 1983,”

whereas “governmental immunity under California law is

governed by statute”).

As discussed above, Cousins’ state false imprisonment

claim and related state causes of action are not subject to any

state statutory immunity. As with Cousins’ state claims

against the AG, therefore, we also reverse and remand his

state claims against the remaining defendants for consider-

ation on the merits.

CONCLUSION

[11] We affirm the district court’s judgment regarding

Cousins’ § 1983 claims because they fall within the scope of

the AG’s duties as an advocate for the State, and because

Cousins has failed to show that any federal constitutional

right that may have been violated by the remaining defendants

was clearly established in law at the time of the alleged mis-

conduct. However, we reverse and remand regarding Cousins’

state causes of action. His state false imprisonment claim is

not subject to any state statutory immunity; his remaining

state claims are all based on that claim; and none of his state

claims is subject to the federal common law doctrine of quali-

fied immunity.

7156 COUSINS v. LOCKYER

AFFIRMED in part; REVERSED and REMANDED in

part.

Each party shall bear its own costs on appeal.