# Radcliffe v. Rainbow Construction Co.

> Court of Appeals for the Ninth Circuit · June 13, 2001 · 254 F.3d 772

URL: https://www.frixlaw.com/law-library/cases/7000375

## Case

- **Full name:** Richard Robert RADCLIFFE Charles Melvin Taylor Andrew Slivka, Jr. Jay Streets v. RAINBOW CONSTRUCTION COMPANY, a partnership Peter A. Richardson Douglas V. Anderson Clifford Michael McClure Melon L. Chichester James W. Lambert Christian Hans Weissleder Ukiah Unified School District Jack Daniels, individually in his personal capacity, and as Assistant Superintendent of Schools and Consultant to the Ukiah Unified School District, Defendants-Appellees Richard Robert Radcliffe Charles Melvin Taylor Andrew Slivka, Jr. Jay Streets v. Rainbow Construction Company, a partnership Peter A. Richardson Douglas V. Anderson Clifford Michael McClure Melon L. Chichester James W. Lambert Christian Hans Weissleder Mendocino County Susan Massini, individually in her personal capacity Allen F. Bazzani, individually in his personal capacity and as Manager of Building & Grounds of the County of Mendocino Jack Daniels, individually in his personal capacity, and as Assistant Superintendent of Schools and Consultant to the Ukiah Unified School District
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** June 13, 2001
- **Citations:** 254 F.3d 772; 2001 Daily Journal DAR 5959; 167 L.R.R.M. (BNA) 2525; 2001 Cal. Daily Op. Serv. 4864; 2001 U.S. App. LEXIS 12867
- **Precedential status:** Published
- **Opinion:** Concurring in part by Reinhardt
- **Judges:** Canby, Fernandez, Reinhardt
- **Cited by:** 14 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7000375

## Opinion text

REINHARDT, Circuit Judge,
concurring in part and dissenting in part:
I fully agree with Judge Canby’s analysis as to all defendants and causes of action save the § 1983 claim against Richardson. I would hold that the plaintiffs have presented sufficient evidence to raise a triable issue of fact as to whether Richardson and Massini formed an agreement at their meeting in September 1995 to deprive the union officials of their constitutional rights by prosecuting them without probable cause. 1
To establish a conspiracy, a plaintiff must demonstrate the existence of “an agreement or meeting of the minds” to violate the plaintiffs’ civil rights. United Steelworkers v. Phelps Dodge Corp., 865 F.2d 1539, 1540-41 (9th Cir.1989) (en banc). We have recognized that “[d]irect evidence of improper motive or an agreement among the parties to violate a plaintiffs constitutional rights will only rarely be available.” Mendocino Envtl. Ctr. v. Mendocino County, 192 F.3d 1283 , 1302 (9th Cir.1999). It will therefore almost always be necessary to infer such agreements from circumstantial evidence such as the actions of the defendants. Id. For example, a showing that the alleged conspirators have committed acts that are “unlikely to have been undertaken without an agreement” may allow a jury to infer the existence of a conspiracy. Id. at 1301 (citing Kunik v. Racine County, 946 F.2d 1574, 1580 (7th Cir.1991)). The possibility that other inferences could be drawn that would provide an alternate explanation for the defendants’ actions does not entitle them to summary judgment. Id. at 1303 (citing Phelps Dodge, 865 F.2d at 1542 (inference need not be most likely but merely a “rational” or “reasonable” one)). Moreover, we have held that “[w]hether defendants were involved in an unlawful conspiracy is generally a factual issue and should be resolved by the jury, so long as there is a possibility that the jury can infer from the circumstances that the alleged conspirators had a meeting of the minds and thus reached an understanding to achieve the conspiracy’s objectives.” Id. at 1301 (quotations omitted).
I believe that District Attorney Massi-ni’s most unusual actions in prosecuting this trespass case permit the inference of *791 a conspiracy between Massini and Richardson to deprive the defendants of their civil rights. Although neither the Assistant District Attorney nor the Deputy District Attorney could remember another case in which Massini overruled their decision on a misdemeanor filing, she countermanded the determination of her subordinates that prosecution in this case was not warranted because the union officials’ conduct was not unlawful. She did no legal research and did not discuss the case with the two charging district attorneys before deciding to prosecute, and alleges that she has never read In re Catalano, the leading case governing the exception from the trespass statute for lawful union activity. Moreover, although it was the practice for the charging deputy district attorney to sign criminal complaints, Mas-sini personally signed the complaints against the plaintiffs and directed that “no deals” with the defense be offered or accepted in the case. While there may be other, more likely explanations for Massi-ni’s actions, I believe that the plaintiffs have presented sufficient evidence to defeat summary judgment by showing that one possible inference a reasonable jury might draw from her conduct is that she formed an agreement in her meeting with Richardson to deprive the plaintiffs of their civil rights. See Phelps Dodge, 865 F.2d at 1542 .
The majority opinion raises the specter of finding a conspiracy every time a citizen’s complaint to a prosecutor results in a prosecution. However, the district attorney’s actions in this case were highly unusual; so unusual, in fact, that it provoked a grand jury investigation that ultimately resulted in a report censuring Massini for her “lack of research” and “questionable decision to proceed with prosecution.” Surely district attorneys can and have conspired with employers or others to suppress the rights of individuals. To find evidence of such a conspiracy in one extreme case would not intimidate district attorneys, frustrate the goals of law enforcement, interfere with employers’ First Amendment rights, or discourage individuals from filing complaints. Rather, it would help prevent and deter governmental participation in conspiracies to violate the constitutional rights of workers and minorities.
. I do not agree with the majority's conclusion that the plaintiffs have failed adequately to raise a constitutional issue regarding their claim of malicious prosecution. I do, however, agree that the plaintiffs have failed to present any evidence that Massini conspired with any of the Rainbow defendants before the arrests.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7000375. Public record. Not legal advice.