Daniel Chavez v. David Robinson

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DANIEL MIKE CHAVEZ, No. 14-35384

Plaintiff-Appellant,

D.C. No.

v. 1:11-cv-03025-PA

DAVID R. ROBINSON; LISA MOORE;

BOARD OF PAROLE AND POST- ORDER AND

PRISON SUPERVISION, AMENDED

Defendants-Appellees. OPINION

Appeal from the United States District Court

for the District of Oregon

Owen M. Panner, Senior District Judge, Presiding

Argued and Submitted

December 8, 2015—Seattle, Washington

Filed March 29, 2016

Amended April 15, 2016

Before: M. Margaret McKeown and Richard C. Tallman,

Circuit Judges and Sharon L. Gleason,* District Judge.

Order;

Opinion by Judge McKeown

*

The Honorable Sharon L. Gleason, District Judge for the U.S. District

Court for the District of Alaska, sitting by designation.

2 CHAVEZ V. ROBINSON

SUMMARY**

Civil Rights

The panel reversed the district court’s sua sponte

dismissal of an in forma pauperis civil rights complaint and

remanded in an action brought against a County probation

officer and a private therapist, who had contracted with the

County to run a sex offender treatment program.

Analyzing 28 U.S.C. § 1915(e)(2)(B)(iii), which requires

a court to dismiss an action “at any time” if it determines that

the complaint “seeks monetary relief against a defendant who

is immune from such relief,” the panel held that the term

“immune” as used in the statute includes both absolute and

qualified immunity. The panel then held that a district court

may dismiss a claim on qualified immunity grounds under

28 U.S.C. § 1915(e)(2)(B)(iii), but only if it is clear from the

complaint that the plaintiff can present no evidence that could

overcome a defense of qualified immunity.

In this case, the panel determined that plaintiff’s

complaint did not clearly show that he would be unable to

overcome qualified immunity. The panel concluded that

further amendment or proceedings would be necessary to

clarify, for example, whether the therapist was acting under

color of state law in operating the sex offender treatment

program and whether the therapist or the probation officer

violated any clearly established law. Accordingly, the panel

**

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

CHAVEZ V. ROBINSON 3

held that the district court erred by dismissing plaintiff’s

claims sua sponte.

COUNSEL

John T. Drake (argued), Foster Pepper PLLC, Spokane,

Washington; Kendra H. Nickel-Nguy, K&L Gates LLP,

Seattle, Washington, for Plaintiff-Appellant.

Gerald L. Warren (argued), Law Office of Gerald Warren,

Salem, Oregon, for Amicus Curiae Klamath County.

Jeff J. Payne (argued), Senior Assistant Attorney General;

Ellen F. Rosenblum, Attorney General; Anna M. Joyce,

Solicitor General, Salem, Oregon, for Amicus Curiae State of

Oregon.

ORDER

The opinion filed on March 29, 2016, at — F.3d —, 2016

WL 1211844, is amended as follows:

At slip op. page 14 n.5, change “and have been waived.”

to “and we therefore do not address them on appeal.”

With this amendment, the panel has voted to GRANT the

petition for panel rehearing. No future petitions for rehearing

will be entertained.

4 CHAVEZ V. ROBINSON

OPINION

McKEOWN, Circuit Judge:

After serving a prison sentence for attempted sexual

abuse, Daniel Chavez entered probation. As a condition of

probation, Chavez was ordered to enroll in a sex offender

treatment program, which required him to admit his guilt

before treatment began and while his appeal was pending.

Chavez maintained his innocence both during and after trial.

Alarmed at the prospect of admitting guilt, Chavez worried

that such an admission of guilt could affect a potential retrial

and also expose him to perjury charges because his direct

appeal was still pending at the time of his release. When

Chavez invoked the Fifth Amendment privilege against self-

incrimination and refused to admit that he had committed a

sex crime, his therapist rejected him from the sex offender

treatment program and his probation officer sent him back to

prison for violating the terms of his probation. As it turned

out, Chavez was prescient with respect to his appeal—the

Oregon Attorney General conceded error and the Oregon

Court of Appeals remanded his case for retrial. State v.

Chavez, 272 P.3d 167 (Or. App. 2012).

Meanwhile, Chavez filed a pro se in forma pauperis

(“IFP”) civil rights complaint in federal district court against

his probation officer and therapist. Before any defendant had

been served, the district court dismissed the complaint with

prejudice, in large part on immunity grounds.

Although Chavez’s appeal raises serious questions about

the scope of Fifth Amendment protections for probationers

undergoing sex offender treatment under Minnesota v.

Murphy, 465 U.S. 420 (1984), the procedural posture of the

CHAVEZ V. ROBINSON 5

case narrows the scope of this appeal. We thus consider

whether a district court can sua sponte dismiss an IFP

complaint on the basis of qualified immunity under 28 U.S.C.

§ 1915(e)(2)(B)(iii), which requires dismissal if the action

“seeks monetary relief against a defendant who is immune

from such relief.” We hold that the term “immune” as used

in the statute includes both absolute and qualified immunity.

Because Chavez’s complaint did not clearly foreclose the

possibility of qualified immunity, we reverse and remand for

further proceedings.

BACKGROUND

An Oregon jury convicted Chavez of two counts of

attempted first-degree sexual abuse and two counts of private

indecency. After he was released from jail in June 2010,

Chavez started serving five years of supervised probation. He

was required to complete and pay for an approved sex

offender treatment program as a condition of his release. Or.

Rev. Stat. § 144.102(4)(b)(F).

Chavez maintained his innocence throughout trial and in

later proceedings. While he was still in prison, Chavez

appealed his conviction to the Oregon Court of Appeals.

Recognizing that the sex offender program would require an

admission of guilt, he asked the Oregon Board of Parole and

Post-Supervision to delay the treatment until after the

decision on his appeal. That request went unanswered. With

his appeal still pending, Chavez reported to his probation

officer, defendant Lisa Moore, who ordered him to participate

in a sex offender treatment program run by defendant David

Robinson, a therapist in private practice. At the time, the

Klamath County Community Corrections and Probation

6 CHAVEZ V. ROBINSON

Department employed Moore and contracted with Robinson

for his services.

When Chavez first arrived at Robinson’s office, Robinson

asked him to sign forms admitting his guilt for the attempted

sexual abuse and private indecency convictions, along with

“all other crimes.” Robinson also asked Chavez to sign a

release that would have allowed Robinson to send each form

to the Klamath County District Attorney’s Office. Chavez’s

refusal to sign the forms led him to be handcuffed and booked

into jail, where he spent a month as a sanction for failure to

cooperate.

Chavez then petitioned the state court to postpone the

treatment program while his criminal appeal was pending.

Although the court denied the motion to stay treatment, it

ordered that “[n]o statements, admissions, or confessions

made by defendant pursuant to the conditions of probation or

post-prison supervision . . . shall be admissible against

defendant in any further proceedings in the above-captioned

case or in any other criminal proceedings” except any

proceedings related to homicide.1 The court also ordered that

any evidence gained as a result of the statements would be

inadmissible.

Although Chavez was directed to reenter the sex offender

treatment program, Robinson terminated his treatment, both

1

We grant Chavez’s unopposed motions under Federal Rule of

Evidence 201 to take judicial notice of the trial court’s immunity order,

and of his first criminal judgment. See United States v. Wilson, 631 F.2d

118, 119 (9th Cir. 1980) (“[A] court may take judicial notice of its own

records in other cases, as well as the records of an inferior court in other

cases.”).

CHAVEZ V. ROBINSON 7

because Chavez “failed to cooperate with his sexual offender

treatment program requirements” and because he had filed

suit against Robinson the previous day. (The complaint also

listed Moore as a defendant.) Moore revoked Chavez’s

probation and imposed a 45-day jail sanction.

The twists and turns in Chavez’s federal lawsuit provide

the procedural backdrop for this appeal. Chavez filed a

motion to proceed IFP and a motion for appointment of

counsel. After the district court granted Chavez’s IFP motion

and denied his motion to appoint counsel, the case lay

dormant for nearly two years. Then in March 2013, the

district court ordered Chavez to show cause within thirty days

as to why his case should not be dismissed for failure to

prosecute. Fifteen days later, Chavez filed a document

labeled “Tort Claim with Damages.” This filing listed

Robinson and the Oregon Board of Parole (“Parole Board”)

as defendants, omitting Moore.

A year later, the district court sua sponte dismissed

Chavez’s case with prejudice for failing to state a claim. The

court construed Chavez’s “Tort Claim with Damages” as an

amended complaint. It concluded that the Eleventh

Amendment barred Chavez’s claims against the Parole Board

and that absolute quasi-judicial immunity barred any claims

against members of the Parole Board in their individual

capacities. The court dismissed Moore from the action

because she was not named in Chavez’s “Tort Claim with

Damages” and in any event, qualified immunity would bar

Chavez’s § 1983 claims. Finally, the court dismissed

Chavez’s tort claims against Robinson because his conduct

was lawful under Oregon law. The court also reasoned that

8 CHAVEZ V. ROBINSON

Robinson was not acting under color of state law and, even if

he were, he was entitled to qualified immunity.2

ANALYSIS

As a threshold matter, we consider whether the district

court properly construed Chavez’s “Tort Claim with

Damages” filing—which was submitted soon after the court

issued an order to show cause—as an amended complaint.3

Chavez filed his original complaint against Robinson and

Moore. His supplemental filing listed only Robinson and the

Parole Board as respondents and contained no reference to

Moore in the text.

When a petitioner proceeds pro se, as Chavez did, the

district court must “construe the pleadings liberally and []

afford the petitioner the benefit of any doubt.” Hebbe v.

Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citation omitted).

At no point did Chavez indicate that the filing was intended

to amend his earlier complaint. Nor did the court give

2

No defendants were served in this case and none appeared in the

district court. In an early filing, Chavez provided addresses for Robinson

and Moore. Although he initially said that they had been served, we will

not hold this against him because § 1915(d) provides that when a plaintiff

is proceeding IFP, “the officers of the court shall issue and serve all

process.” On appeal, the State of Oregon (in support of all defendants)

and Klamath County (in support of Moore) appeared as amici curiae and

filed briefs.

3

Amicus curiae State of Oregon argues that Chavez waived this

argument by failing to raise it before this court. We disagree because “a

fair reading of the opening brief implicitly raises this issue” and any

“failure to properly raise the issue caused no prejudice to the opposing

party.” JG v. Douglas Cty. Sch. Dist., 552 F.3d 786, 796 n.6 (9th Cir.

2008) (relying on Alcaraz v. INS, 384 F.3d 1150, 1161 (9th Cir. 2004)).

CHAVEZ V. ROBINSON 9

Chavez the opportunity to address any perceived deficiencies,

such as clarifying which parties were the intended defendants.

See, e.g., Crowley v. Bannister, 734 F.3d 967, 978 (9th Cir.

2013) (“A district court abuses its discretion by denying leave

to amend where the complaint’s deficiencies could be cured

by naming the correct defendant.”); Lucas v. Dep’t of Corr.,

66 F.3d 245, 248 (9th Cir. 1995) (“Unless it is absolutely

clear that no amendment can cure the defect [], a pro se

litigant is entitled to notice of the complaint’s deficiencies

and an opportunity to amend prior to dismissal of the

action.”).

Contrary to the district court’s sua sponte

recharacterization of Chavez’s filing, the better interpretation

of the “Tort Claim with Damages” submission is that Chavez

was responding to the district court’s order to show cause.

He filed the document fifteen days after the court issued its

order, well within the thirty-day window given by the court.

Chavez characterized the filing as “exhibits of abuse

supporting this cause,” not as an amended complaint. He was

directed to take action to avoid dismissal and he did. Because

the filing did not amend or supersede Chavez’s original

complaint, Moore remains a party to this action.4

The next question—and the crux of this appeal—is

whether the district court had authority to dismiss sua sponte

Chavez’s claims against Robinson and Moore on qualified

immunity grounds. Chavez’s position is that a court should

4

The Parole Board was not a party in the complaint nor did it become

a party via the subsequent filing. In any event, Chavez does not appeal the

district court’s findings that the Parole Board is entitled to absolute

immunity and that board members are entitled to absolute quasi-judicial

immunity.

10 CHAVEZ V. ROBINSON

not be able to “dismiss a case on qualified immunity grounds

unless and until the defense has been affirmatively raised in

a responsive pleading.”

The statute governing IFP filings requires a court to

dismiss an action “at any time” if it determines that the

complaint “seeks monetary relief against a defendant who is

immune from such relief.” 28 U.S.C. § 1915(e)(2)(B)(iii).

Chavez acknowledges that the statute applies to absolute

immunity. He argues, however, that we should not read

§ 1915 to permit a district court to screen sua sponte for

qualified immunity before the defendants have been served

and affirmatively raised the issue in a responsive pleading.

Chavez’s approach is at odds with the clear text of the

statute, which precludes such distinctions between absolute

and qualified immunity. See In re HP Inkjet Printer Litig.,

716 F.3d 1173, 1180 (9th Cir. 2013) (“[O]ur inquiry begins

with the statutory text, and ends there as well if the text is

unambiguous.” (citation omitted)). Section 1915 requires a

court to dismiss an action “at any time” if the defendant is

entitled to immunity. We divine no express or implied

temporal limit in this phrase. Once a court has sufficient

information to make a determination on immunity, the statute

mandates dismissal—even if dismissal comes before the

defendants are served. Lopez v. Smith, 203 F.3d 1122, 1130

(9th Cir. 2000) (en banc) (stating that 28 U.S.C.

§ 1915(e)(2)(B)(ii) authorizes a court to dismiss a complaint

that fails to state a claim sua sponte before defendants are

served).

Nor can we see a textual basis for distinguishing between

absolute and qualified immunity—the term “immune”

appears without any qualifier. Absolute immunity provides

CHAVEZ V. ROBINSON 11

a limited category of officials total protection from suit when

they perform certain “special functions,” while qualified

immunity protects officials only if “their conduct does not

violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” Buckley v.

Fitzsimmons, 509 U.S. 259, 268–71 (1993) (quoting Harlow

v. Fitzgerald, 457 U.S. 800, 818 (1982)). Chavez argues that

qualified immunity is an affirmative defense that the

defendant, not the court, must raise. But like absolute

immunity, qualified immunity “is an immunity from suit

rather than a mere defense to liability,” and is thus

“effectively lost if a case is erroneously permitted to go to

trial.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985)

(emphasis omitted).

Our interpretation is consistent with the purpose of the

Prison Litigation Reform Act of 1995 (“PLRA”), which

amended an earlier iteration of the IFP statute in 1996.

Omnibus Consolidated Rescissions and Appropriations Act

of 1996, Pub. L. No. 104-134, §§ 801–810, 110 Stat. 1321-66

(1996) (codified at scattered sections). Before the PLRA

came into force, § 1915 required courts to dismiss only those

cases that were “frivolous or malicious.” Jones v. Bock,

549 U.S. 199, 214 (2007). The PLRA was designed to reduce

the volume of prisoner suits by “filter[ing] out the bad claims

and facilitat[ing] consideration of the good.” Id. at 204.

Accordingly, the current IFP statute provides additional,

detailed grounds for dismissal—including mandatory

dismissal of any claim that “seeks monetary relief against a

defendant who is immune from such relief.” 28 U.S.C.

§ 1915(e)(2)(B)(iii).

At the time Congress adopted this revision, the distinction

between absolute and qualified immunity was well developed

12 CHAVEZ V. ROBINSON

in the case law, see, e.g., Mitchell, 472 U.S. at 525–26, and

“[w]e generally presume that Congress is knowledgeable

about existing law pertinent to the legislation it enacts.”

Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 184–85

(1988). Although Congress could have limited dismissal

under 28 U.S.C. § 1915(e)(2)(B)(iii) to absolute immunity, it

did not do so. We conclude that Congress intended § 1915(e)

to apply to both types of immunity.

We also glean an unrestricted definition of immunity

from Congress’s use of “immune” in a separate provision of

the PLRA. At the same time it amended § 1915, Congress

added § 1915A, a new provision that governs screening of

civil actions filed by prisoners. Section 1915A mandates

early review—“before docketing [] or [] as soon as

practicable after docketing”—for all complaints “in which a

prisoner seeks redress from a governmental entity or officer

or employee of a governmental entity.” 28 U.S.C.

§ 1915A(a). This section also requires a court to dismiss a

prisoner’s complaint if it “seeks monetary relief from a

defendant who is immune from such relief.” 28 U.S.C.

§ 1915A(b)(2). Read together, §§ 1915A(a) and (b) allow a

court to dismiss sua sponte a prisoner complaint that “seeks

redress from [an] . . . employee of a governmental entity” on

the grounds of immunity. In this context, immunity must

include qualified immunity; if it did not, the immunity

provision would not apply to the broad category of

“employee[s] of a governmental entity” under 28 U.S.C.

§ 1915A(a). See Harlow, 457 U.S. at 809–11 (discussing

limited scope of absolute immunity); see also Story v. Foote,

782 F.3d 968, 969–70 (8th Cir. 2015) (holding sua sponte

pre-service dismissal appropriate under section 1915A “if the

defense of qualified immunity is established on the face of

the complaint”).

CHAVEZ V. ROBINSON 13

The only textual difference is that § 1915 says “against a

defendant” whereas § 1915A says “from a defendant.” This

minor variation is the ultimate in a distinction without a

difference. It is no coincidence that both § 1915 and § 1915A

employ the virtually identical phrasing:

• “[T]he court shall dismiss the case at any time if the

court determines that . . . the action or appeal . . .

seeks monetary relief against a defendant who is

immune from such relief.” 28 U.S.C.

§ 1915(e)(2)(B)(iii).

• “[T]he court shall . . . dismiss the complaint . . . if the

complaint . . . seeks monetary relief from a defendant

who is immune from such relief.” 28 U.S.C.

§ 1915A(b)(2).

The best reading of § 1915 is that “immunity” means the

same thing as it does in § 1915A. “Presumptively, identical

words used in different parts of the same act are intended to

have the same meaning.” U.S. Nat’l Bank v. Indep. Ins.

Agents of Am., Inc., 508 U.S. 439, 460 (1993) (citation

omitted).

We hold that a district court may dismiss a claim on

qualified immunity grounds under 28 U.S.C.

§ 1915(e)(2)(B)(iii), but only if it is clear from the complaint

that the plaintiff can present no evidence that could overcome

a defense of qualified immunity. Cf. Nordstrom v. Ryan,

762 F.3d 903, 908 (9th Cir. 2014) (stating that a pro se

complaint can be dismissed only “if it appears beyond doubt

that the plaintiff can prove no set of facts in support of his

claim which would entitle him to relief.” (citation omitted)).

Our resolution does not impose a heightened pleading

14 CHAVEZ V. ROBINSON

standard for plaintiffs proceeding IFP, nor does it require

plaintiffs to anticipate or plead around qualified immunity

defenses in their complaints. Cf. Gomez v. Toledo, 446 U.S.

635, 640 (1980) (“Since qualified immunity is a defense, the

burden of pleading it rests with the defendant.”); Crawford-El

v. Britton, 523 U.S. 574, 595 (1998) (“We [have] refused to

change the Federal Rules governing pleading by requiring the

plaintiff to anticipate the immunity defense[.]”). Pro se

complaints frequently lack sufficient information for a judge

to make a qualified immunity determination without the

benefit of a responsive pleading or discovery. We caution

that pre-service dismissal on the basis of qualified immunity

is appropriate only in limited circumstances.

Chavez’s pro se complaint did not clearly show that he

would be unable to overcome qualified immunity. Further

amendment or proceedings would be necessary to clarify, for

example, whether Robinson was acting under color of state

law in operating the sex offender treatment program and

whether Robinson or Moore violated any clearly established

law.5 Accordingly, the district court erred by dismissing

Chavez’s § 1983 claims sua sponte. Despite Chavez’s

request, no “unusual circumstances” merit reassignment to a

different district court judge on remand. Krechman v. County

of Riverside, 723 F.3d 1104, 1111 (9th Cir. 2013).

Given the nature of Chavez’s claims and the limited

record on appeal, we decline to reach the remaining issues

5

Chavez also argues that he raised First Amendment retaliation and

compelled speech claims in the complaint. We disagree; these arguments

are not present in the complaint and we therefore do not address them on

appeal.

CHAVEZ V. ROBINSON 15

raised by the parties, including the merits of the qualified

immunity defense.

REVERSED AND REMANDED.