Ronald E. Ting v. United States of America the Federal Bureau of Investigation Drug Enforcement Administration Internal Revenue Service Joe Sheehan

REINHARDT, Circuit Judge,

concurring in part and dissenting in part:

I concur in Parts IA, IB and II of the majority opinion. However, because I believe the majority decides Ting’s Bivens conspiracy claim incorrectly, I respectfully dissent from Part IC of the opinion.

Ting asserts that when the non-shooting officers met after Officer Burns shot him, they agreed to make false representations regarding the facts surrounding the shooting. The record shows that the officers gathered together and discussed “the facts” of the shooting prior to being interviewed by the Federal Bureau of Investigations. They then told stories relatively consistent with Burns’s version and inconsistent with Ting’s. Notwithstanding these undisputed facts, the majority concludes that there is insufficient evidence from which a jury could reasonably conclude that the defendant-officers agreed to make false representations regarding the facts surrounding the shooting. I believe this conclusion to be erroneous. Ultimately, Ting may find it virtually impossible to prevail on his civil conspiracy claim. However, that possibility should not lead us to dismiss his claim with prejudice at this point.

For purposes of summary judgment, we must accept as true the non-moving party’s supported allegations. See Gillette v. Delmore, 886 F.2d 1194, 1198 (9th Cir.1989); Teamsters Union v. Great Western Chemical Co., 781 F.2d 764, 766 (9th Cir.1986). Here, Ting does not merely make a bald, unsupported allegation of a cover-up. Rather, the evidence demonstrates, and the majority agrees, that there is a genuine issue regarding the circumstances under which Ting was shot. If the jury accepts Ting’s version of the shooting, then the non-shooting officers’ version is not correct. In other words, since there is a material issue of fact whether Burns is telling the truth, there must also be the same material question with respect to the officers whose stories corroborate Burns’s account of the incident. 1 Thus, if the jury found that Ting was shot in the prone position, it certainly could reasonably conclude that the officers post-incident discussion resulted in a conspiracy to cover-up evidence — i.e. an agreement to cover-up the *1516 manner in which Agent Burns shot Ting. 2 Accordingly, in my opinion, the critical question is not whether Ting presented sufficient evidence to raise a conspiracy claim, but whether a conspiracy to deprive someone of a civil rights claim by covering up the truth is actionable.

A conspiracy to obstruct a civil rights claim is actionable in the Ninth Circuit only if it succeeds in frustrating the prosecution of that claim. See Dooley v. Reiss, 736 F.2d 1392 (9th Cir.), cert. denied, 469 U.S. 1038 , 105 S.Ct. 518 , 83 L.Ed.2d 407 (1984); Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621 (9th Cir.1988). In Kar-im-Panahi, we held that allegations that police officers’ falsification of facts resulted in obstruction of justice “state a federally cognizable claim provided that defendants’ actions can be causally connected to a failure to succeed in the underlying suit against the officers. Id. at 625 (citing Dooley, 736 F.2d at 1394 -95 and Landrigan v. City of Warwick, 628 F.2d 736, 742 (1st Cir.1980)). Under our cases, Ting’s Bivens conspiracy claim would be “mooted” if he were to succeed on the substantive counts presently before us, because the cover-up would not have resulted in a deprivation of his constitutional rights (i.e. his civil rights action). Id.

Our rule places Ting in a peculiar position. If he succeeds in the present action, his conspiracy claim is mooted. If he fails in the present action he theoretically has a cause of action against the officers but only if he can show that the cover-up caused that loss. Given that Ting is presently aware of the alleged cover-up, it seems unlikely that he will be able to prevail in a subsequent action if he fails to prevail in this one. Nevertheless, since the resolution of Ting’s present case remains uncertain, the proper course of action is to hold that his conspiracy claim is not ripe for judicial consideration. See Karim-Panahi, 839 F.2d at 625. Accordingly, it is our obligation to dismiss his Bivens conspiracy claim against the non-shooting officers without prejudice. Id. That action might not accomplish much, but it would at least have the advantage of being consistent with the current law of the circuit. For the above reasons, I dissent from Part IC of the majority opinion.

. In his amended complaint, Ting contends that the defendant-officers gave a false account of the shooting in order to protect Agent Burns. The defendants deny this contention. As other officers were present when Agent Burns shot Ting, and those officers subsequently discussed "the facts” as a group prior to their formal interview, a jury could reasonably conclude that, if Ting was in fact shot in the prone position, the officers’ testimony that he was fully upright when shot stemmed from a conspiracy to conceal or manufacture evidence. The competing versions of the facts effectively preclude the trial court from dismissing Ting’s civil conspiracy claim on summary judgment.

. "To demonstrate the existence ot a conspiratorial agreement, it simply must be shown that there was ‘a single plan, the essential nature and general scope of which [was] known to each person who is to be held responsible for its consequences.' ” Hampton v. Hanrahan, 600 F.2d 600, 621 (7th Cir.1979) (quoting Hoffman-LaRoche v. Greenberg, 447 F.2d 872, 875 (7th Cir.1971)). Circumstantial evidence may provide a sufficient basis to allow a jury to find that a conspiracy existed.