Opposition Brief — Sexton v. Chino Valley Independent Fire District

(

No. 01-493 Tee

“in Ghe NOV 16

Supreme Court of the Chited States

OFFICE OF THE CLERK

FRANKLIN SEXTON,

Petitioner,

Vv.

CHINO VALLEY INDEPENDENT FIRE DISTRICT,

RAY O. SHACKLEFORD, as an individual and in

his official capacity as District Fire Chief;

AL GRAMS, as an individual and in

his official capacity as District Fire Chief;

SOUTHERN CALIFORNIA RISK

| MANAGEMENT ASSOCIATES, INC.,

a California Corporation and public

entity insurance carrier,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRIEF IN OPPOSITION OF RESPONDENTS

CHINO VALLEY INDEPENDENT FIRE DISTRICT

and AL GRAMS

Kevin M. Osterberg

Nancy E. Lucas

HAIGHT, BROWN & BONESTEEL, LLP

| 6080 Center Drive, Suite 800

Los Angeles, California 90045-1574

(310) 215-7100

Counsel for Respondents

Chino Valley Independent Fire District

and Al Grains

Jules S. Zeman (Counsel of Record)

|

|

| THE LEX GROUP ¢ 1108 East Main Street # Suite 1400 ¢ Richmond, VA 23219 V

(804) 644-4419 @ (800) 856-4419 @ Fax: (804) 644-3660 ¢ www.thelexgroup.com n \¢ \

pra oe —--— -

EDITOR'S NOTE

ORIGINAL PAGINATION IS NOT CONTINUOUS

QUESTIONS PRESENTED FOR REVIEW

Whether this Court should depart from well-

established precedent and abandon the “public

concern” threshold of the Pickering-Connick balancing

test for determining when a public employee may

pursue a federal civil rights action against his

employer.

Whether this Court should create and adopt a

modified standard which would allow the Petitioner

to maintain his employment discrimination action as

a federal civil rights action.

Whether a malicious prosecution or abuse of process

claim may be maintained as a substantive due

process violation pursuant to 42 U.S.C. § 1983 where,

as here, the alleged constitutional violations have

been found untenable as a matter of law.

PARTIES TO THE PROCEEDING

Petitioner: Franklin Sexton

Respondents: Chino Valley Independent Fire District; Ray

O. Shackleford, an individual and in his

official capacity as District Fire Chief; Al

Grams, as an individual and in his official

capacity as District Fire Chief; and Southern

California Risk Management Associates, Inc.,

a California Corporation and public entity

insurance carrier

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ..11...sssssssssecorssscseseestssooseesssooeees.,. i

PARTIES TO THE PROCEEDING ooeeeesssssssscsscsccssessesseseecce,. ii

SPR MNO iii

PE TE iv

OPPOSITION TO PETITION

Pie OME CORUM AR 1

i RSA Re AS ene 1

PRI Ate Nile lhibsisicSehasiccsicbeaiccasaliinn.. 1

CONSTITUTIONAL AND :

STATUTORY PROVISIONS INVOLVED eoeecccccsessseeeeeecccee.. 1

PORT OOP CPECAGR 1

STATEMENT OF FACTS sessscessrsernescetnsersetesensn ienaieaalndas 2

1. The Prior Action (Sexton I) ..esssssssscccssssssssssssssssessssssess..... 3

ie ON 3

3. The Rulings of the District Court and the

Ninth Circuit Court of Appeals ......cccccccccscsssssseseoeocoess. 3

REASONS TO DENY THE WRIT

- I

CONCLUSION

PETITIONER HAS NOT ESTABLISHED

THAT REVIEW BY THIS COURT IS

WARRANTED ‘a in

THIS COURT SHOULD DECLINE

PETITIONER’S INVITATION TO

ABANDON THE WELL-ESTABLISHED

PICKERING-CONNICK TEST

THIS COURT SHOULD LIKEWISE

REFUSE TO CREATE A _ SPECIAL

MODIFICATION OF THE PICKERING-

CORINA T EIST ccsosccenserecsses os =

THIS COURT SHOULD NOT CREATE

NEW LAW TO ALLOW PETITIONER

TO PURSUE HIS MALICIOUS

PROSECUTION AND ABUSE OF

PROCS CLA ans csesiciscaccnctentesosansvasoocensvens

APPENDIX A

TABLE OF AUTHORITIES >

Page(s)

Cases:

Albright v. Oliver,

SPARE WS AO CE ii i tsiitanescachndeteritcaidictaect 4,12

Beker Phosphate Corporation v. Muirhead,

981 F.2d 1187 (Sth Cir. 1978) ........ccccsccsssesssscccesccssssssssee 12

Bertero v. National General Corp., ;

cde cercetacathy eat, OE EOI 10

Bretz v. Kelman,

773 F.2d 1026 (9th Cir. 1985) ....ceccccscsscccesscnscecssecesncesonss 11

Cameo Convalescent Center, Inc. v. Senn,

738 F.2d 836 (7th Cir. 1978).......ccssssssscsescsecsseeseeseees 11,12

Cline v. Brusset, |

GE Foe SUMO CORSE, BT aii sscnssssccsvcssnnesoacascsonne 11

Connick v. Myers,

vectee hice ace Sg NR le eR passim

Day v. South Park Independent School District,

Fe Ese GO TUN. TI seein sinncasinscavsrticesanssictsssnsan 5

Gearhart v. Thorne,

Fe OT NE, BONN is caininss sicgsinintnnsuicnctnas 8

Grabow v. Independent School District No. I-008,

86 F.3d 1166 (10th Cir. 1996) ........seccssssssscssssecsssessseesseeee 6

Hampton v. Hanrahan,

600 F.2d at 630 (7th Cir. 1979).......ccccccsscccssccosscsescnsecsees 12

McDonald v. Smith,

vec acm ben sh yg, ON ONE OAAE ATES 9,10

v

Pickering v. Board of Education,

FOE I. GED CIGD cccsccncccnscscasnsnnmnnsinnisenceraciztstassetin passim

Pimentel v. Houk,

101 Cal. App.2d 884 (1951)............ 11

Rendish v. City of Tacoma,

123 F.3d 1216 (9th Cir. 1997)... passim

Renfroe v. Kirkpatrick,

772 F.2d 714 (11th Cir. 1984) cert denied,

469 U.S. 823 (1984) cocemnenehiaphignendanaseges wavtgenencin 6

San Fillippo v. Bongionvanni,

30 F.3d 424 (3rd Cir. 1994), cert. denied

FES Ee, Te Ca caprcrccncisertenssncccnsssinnsactnncaptgenepsoinecignen 5

Sheldon Appel Co. v. Albert & Oliker,

47 Cal. 3d 863 (1989) 10

Sorrano’s Gasco Inc. v. Morgan,

874 F.2d 1310 (9th Cir. 1989)..........ccsccsssesnsessnenesenenenenes 8

Tellefsen v. Key System Transit Lines,

198 Cal. App. 2d 611 (1961)............sssscscssssesessssserereees 11

Usher v. City of Los Angeles,

828 F.2d 556 (Sth Cir. 1967)........cocccesssssssoscsesescocssossesees 11

Valot v. Southeast Local School District

Board of Education,

107 F.3d 1220 (6th Cir. 1997).........c.csssssesssssesesereeees 5

White Plains Towing Corp. v. Patterson,

991 F.2d 1049 (2d Cir. 1993)........00e00-000 5

Zorzi v. County of Putnam,

30 F.3d 885 (7th Cir. 1994)...........00000 5

Statutes:

42 U.S.C. § 1983 ....-.ccecersseerscssssssssesenenensssssnssssnsnensnsnenensnsoees passim

California Labor Code § 3212...........ssssssseseersneseenennees essseeen 1,3

Constitutional Provisions:

Amendment [............sceccesscessecessrcenrsensenesssssessnsenssnnnenssnnnsenes La?

OPPOSITION TO PETITION

FOR WRIT OF CERTIORARI

Respondents Chino Valley Independent Fire District

and Al Grams hereby oppose Franklin Sexton’s Petition for

a Writ of Certiorari to review the judgment of the United

States Court of Appeals for the Ninth Circuit.

OPINIONS BELOW

Respondents Chino Valley Independent Fire District

and Al Grams agree that the opinions and orders attached to

Petitioner’s Brief in Appendices A through J constitute the

proper opinions and orders in this proceeding.

JURISDICTION

Respondents Chino Valley Independent Fire District

and Al Grams agree with the Statement of Jurisdiction set

forth by Petitioner.

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

Constitution of the United States, Amendment I

42 U.S.C. § 1983

California Labor Code § 3212

All Constitutional and statutory provisions are cited

verbatim in Appendix A to this Brief.

STATEMENT OF THE CASE

This proceeding involves an employment dispute

between petitioner Franklin Sexton and respondent Chino

Valley Independent Fire District (hereinafter the “Fire

Department”). Sexton has previously sued his employer

(the Fire Department's predecessor), been compensated

$250,000 for his claimed injury, and been reinstated to his

1

former position. He claims the Fire Department put him

on temporary disability on the pretext that he suffered

from a heart condition in retaliation for his prior lawsuit.

(In the prior lawsuit Petitioner claimed his employer

caused the heart condition). This he alleges violated his

First Amendment rights, giving rise to 42 U.S.C. § 1983

claims and claims for malicious prosecution and abuse of

process.

The District Court held that Petitioner’s claims

sought only redress for his personal grievances and thus did

not meet the “public concern” threshold requirement to

maintain civil rights claims against a public employer. The

court further held that the malicious prosecution and abuse

of process claims could not stand in the absence of

constitutional violations. The District Court’s ruling was

based on well-established and controlling precedent,

including this Court's decisions in Pickering v. Board of

Education, 391 U.S. 563 (1968) and Connick v. Myers, 461 U.S.

137 (1983).! The District Court granted summary judgment

against Petitioner on all claims and the Ninth Circuit Court

of Appeals affirmed.

Petitioner now asks this Court to abandon the well

established and controlling precedent, and create entirely

new law or to apply existing law in a tortured manner

which would enable him to pursue his private grievances as

a civil rights violation.

STATEMENT OF FACTS

The length and detail of the statement of facts

offered by Petitioner are unwarranted, and the facts set forth

in the Petition are misleading. The facts necessary to the

resolution of the issues now before this Court follow.

1 The holdings of these two cases have become known as the

Pickering-Connick test.

2

2. The Prior Action (Sexton I)

Petitioner Franklin Sexton is a firefighter. Beginning

in 1991, Petitioner had a number of routine medical tests

which revealed that he experienced irregular heartbeats.

Pursuant to California Labor Code § 3212, there is a rebuttable

presumption that a heart condition in a firefighter is work-

related. Following the discovery of his condition, Petitioner

was variously confined to light duty, placed on job-related

disability status and temporarily taken off street duty to

obtain counseling. Petitioner sued his employer claiming,

inter alia, that his employment “caused” his heart condition

(Sexton I). That action was settled for payment of $250,000

to Petitioner and, after obtaining medical clearance, he was

restored to his position. In the interim, Petitioner had also

received maximum State Workers’ Compensation benefits,

. declining to challenge the diagnosis of disability before the

California Workers’ Compensation Appeals Board.

y 3 The Filing of Sexton II

Petitioner initiated this action on June 5, 1995. Some

20 months later he filed his Fourth Amended and

Supplemental Complaint. In that pleading he alleged he

never had a disabling heart condition, and that he was

placed on disability in retaliation for the filing of Sexton I.

He asserted claims for violation of procedural due process,

substantive due process, for retaliation based on the exercise

of freedom of speech and the right to petition, and for

malicious prosecution and abuse of process.

3 The Rulings of the District Court and the Ninth

Circuit Court of Appeals

Respondents filed a series of motions for summary

adjudication of Petitioner's claims, which ultimately

resulted in the entry of judgment against Petitioner on all

claims on September 2, 2000.

As to Petitioner's Free Speech claim, the District

Court held that Connick v. Myers, 461 U.S. 138 (1983) was

dispositive because “a public employee's s speech must

pertain to a matter of public concern.” [Petitioner's

Appendix F, p. 23a] The Court also ruled that the Petition

Clause claim also failed because Petitioner sought redress

only for his personal grievances, not a matter of public

concern as required by Rendish v. City of Tacoma, 123 F.3d

1216, 1220 (9th Cir. 1997). [Petitioner’s Appendix F, p. 23a]

The District Court reduced the case to its essence and held:

“Plaintiff has alleged he was wrongfully put on disability

due, interalia, to Defendants’ encouraging Dr. Markovitz to

change his evaluation. These are private matters which do

not rise to the level of ‘broader societal concern’ required to

constitute public speech.” [Petitioner's Appendix F, p. 23b]

The District Court further ruled that the malicious

prosecution and abuse of process claims were not

cognizable under 42. U.S.C. § 1983 because Petitioner was

not deprived of a constitutional right by his employer.

[Petitioner’s Appendix H, pp. 35a-36a] In reaching this

conclusion, the Court expressly rejected the applicability of

Albright v. Oliver, 510 U.S. 266 (1994), the primary case on

which Petitioner has relied in support of his claim.

[Petitioner’s Appendix H, pp. 35a-36a]

Petitioner sought review from the Ninth Circuit

Court of Appeals, which denied the petition for rehearing

without opinion, en banc, on June 22, 2001.

REASONS TO DENY THE WRIT

I. PETITIONER HAS NOT ESTABLISHED THAT

REVIEW BY THIS COURT IS WARRANTED

Petitioner urges review on essentially three bases:

(1) the issues raised by his Petition present novel questions;

(2) there is a claimed “split of authority among the various

circuits;” and (3) the lower courts were just wrong. As set

forth below, however, none of these bases has merit and the

Petition should be denied in its entirety.

4

Petitioner suggests that this case presents a novel

factual scenario in that it involves speech that was both not

of public concern and nondisruptive, and suggests that it

warrants special treatment. This Court, however, has

already provided for such a circumstance. Pickering v. Board

of Education, 391 U.S. 563 (1963) makes it clear that if the

speech at issue is not of public concern, then no further

inquiry is made - i.e., whether speech is nondisruptive is

irrelevant if the public concern threshold is not met. Connick

affirmed that “public concern” is a prerequisite: “Pickering,

its antecedents and progeny, lead us to conclude that if

Myers’ questionnaire cannot be fairly characterized as

constituting speech on a matter of public concern, it is

unnecessary for us to scrutinize the reasons for her

discharge.” Connick, supra, 461 at 146. (Emphasis added.)

Petitioner has conceded that the speech which forms the

basis of his claims does not satisfy the “public concern”

requirement. Thus, contrary to his assertion, this case does

not present novel facts which warrant special treatment.

Petitioner also urges this Court to issue a writ of

certiorari to resolve a split of authority among the various

federal circuits. It is true that there is not absolute

uniformity on the issue of whether “public concern” is also a

requirement before a plaintiff can maintain a 42 U.S.C.

§ 1983 action based on the Petition Clause of the First

Amendment. Standing alone in this regard, however, is the

Third Circuit in its opinion San Fillippo v. Bongionvanni, 30

F.3d 424 (3rd Cir. 1994). It should be noted that this Court

denied cert. of that case. See, 513 U.S. 1082 (1995). As

Petitioner concedes, all other circuits which have considered

the issue have ruled contrary to his position. See, e.g., White

Plains Towing Corp. v. Patterson, 991 F.2d 1049 92d Cir. 1993);

Day v. South Park Independent School District, 768 F.2d 696

(Sth Cir. 1985); Valot v. Southeast Local School District Board of

Education, 107 F.3d 1220 (6th Cir. 1997); Zorzi v. County of

Putnam, 30 F.3d 885, 896 (7th Cir. 1994) (“If a public

employee is retaliated against for filing a lawsuit, the public

employee has no First Amendment claim unless the lawsuit

5

involves a matter of public concern.”); Rendish v. City of

Tacoma, 123 F.3d 1216 (9th Cir. 1997); Grabow v. Independent

School District No. 1-008, 86 F.3d 1166 (10th Cir. 1996)

(unpublished; citation permissible under 10th Cir. rules);

and Renfroe v. Kirkpatrick, 772 F.2d 714 (11th Cir. 1984) cert

denied, 469 U.S. 823 (1984).

The Third Circuit’s opinion in San Filippo has been

roundly criticized. As the Ninth Circuit Court of Appeals

noted in Rendish v. City of Tacoma: “We respectfully disagree

with the Third Circuit's analysis... . It diverges from the

Supreme Court's teachings that the primary function of the

First Amendment is to facilitate participation in a free

political process and that the First Amendment extends its

guarantees to public employees in order to encourage such

participation.” Rendish v. City of Tacoma, supra, 123 F.3d at

1223.

Respondents submit that the existence of one

anomalous opinion should not warrant review of a ruling

consistent with Supreme Court precedent as well as that of

all other circuits.

Last, Petitioner argues essentially, that the lower

courts were just wrong. As set forth below, the opinion of

the District Court (affirmed en banc by the Court of

Appeals) was based on controlling precedent and supported

with sound rationale.

Il. THIS COURT SHOULD DECLINE PETITIONER’S

INVITATION TO ABANDON THE WELIL-

ESTABLISHED PICKERING-CONNICK TEST

Having conceded the subject speech is not of public

concern, Petitioner urges a departure from the well-establish

and controlling precedent of Pickering and Connick and their

progeny. No reason for such a departure exists.

In 1968 this Court held in Pickering v. Board of

Education, 391 U.S. 563 (1968) that a public employee could

not be discharged for making comments on issues of public

importance. Fifteen years later, in Connick v. Myers, 461 U.S.

138, this Court relied heavily on the rationale set forth by

Pickering, and noted, “Our cases following Pickering also

involved safeguarding speech on matters of public concern.”

Connick, supra, 461 U.S. at 145 (emphasis added.) The

emphasis on the “public concern” element cannot be

overstated. In Connick, this Court also held:

The repeated emphasis in Pickering on the

right of a public employee “as a citizen, in

commenting upon matter of public concern,”

was not accidental. This language, reiterated

in all of Pickering’s progeny, reflects both the

historical evolvement of the rights of public

employees, and the common sense realization

that government offices could not function if

every employment decision became a

constitutional matter.

Connick, supra, 461 U.S. at 143 (emphasis added; footnotes

omitted). Based on the ruling and rationale of Pickering, the

Connick Court concluded:

When employee expression cannot be fairly

considered as relating to any matter of

political, social, or other concern to the

community, government officials should

enjoy wide latitude in managing their offices,

without intrusive oversight by the judiciary

in the name of the First Amendment.

Connick, supra, 461 U'S. at 146.

Both Pickering and Connick involved the Free Speech

Clause of the First Amendment. In Rendish v. City of Tacoma,

123 F.3d 1216 (9th Cir. 1997), the Court of Appeals

considered whether the ruling and rationale of Pickering and

Connick would apply to a similar claim based on a claimed

violation of the Petition Clause of the First Amendment. In

its lengthy opinion, the Rendish court explained the issue

and its holding:

In Gearhart v. Thorne, 768 F.2d 1072, 1073 (9th

Cir. 1985), we considered a public employee's

section 1983 claim alleging that his employer

retaliated against him for using internal

grievance procedures. Analyzing this claim

primarily as one involving speech, we

followed Connick and held that the First

Amendment did not protect “a public

employee's right to speak internally about

matters of purely personal interest.” Id. ...

Although we recognized that the First

Amendment protects both the right to

petition and the right of public employees to

speak out on public issues, we . . . did not

specifically address . . . whether the public

concern requirement applies to action

protected by the Petition Clause. Id. We

have subsequently held in a section 1983

retaliation claim outside the public-

employment context that “[t]he right of

access to the courts is subsumed under the

first amendment right to petition the

government for redress of. grievances.”

Sorrano’s Gasco [Inc. v. Morgan, 874 F.2d 1310

(9th Cir. 1989)] at 1314. We now extend

our holding in Gearhart to a_ public

employee’s litigation, which is

independently protected by the Petition

Clause. We hold that a public employee's

litigation must involve a matter of public

concern in order to be protected by either the

Petition Clause of the Speech Clause or the

First Amendment.

Rendish, supra, 123 F.3d at 1220 (emphasis added). In

reaching this conclusion, the court relied on Supreme Court

precedent such as McDonald v. Smith, 472 U.S. 479 (1985) in

which this Court acknowledged the close association

between the Free Speech and Petition Clauses of the First

Amendment:

The Petition Clause . . . was inspired by the

same ideal of liberty and democracy that

gives us the freedoms to speak, publish, and

assemble. These First Amendment rights are

inseparable, and there is no sound basis for

granting greater constitutional protection to

statement made in a petition . . . than other

First Amendment expressions.

Rendish, supra, 123 F.3d at 1220-1221, citing McDonald v.

Smith, 472 U.S. 497, 482 (1985).

Despite this overwhelming authority, Petitioner

urges this Court to create new law so that he may have an

additional recovery from respondents arising from his

personal workplace grievances. Petitioner, however,

provides no persuasive reasons for this Court to reverse

the holdings of Pickering and Connick and their progeny.

Ill. THIS COURT SHOULD LIKEWISE REFUSE TO

CREATE A SPECIAL MODIFICATION OF THE

PICKERING-CONNICK TEST

In the alternative, Petitioner asks this Court to

create a special modification of the Pickering-Connick

test which would allow him to pursue his action

against respondents. Petitioner suggests that this Court

could “afford[] blanket constitutional protection . . for

civil litigation only, perhaps limiting it to federal

litigation and/or actions seeking vindication of any

constitutional or civil right, so long as the activity in issue

remained exclusively involved in solely those activities

9

connected with the litigation itself.” [Petition, p. 19] While

it is clear that such a rule would benefit Petitioner, it is not

clear how such a rule would foster the concerns raised by

this Court in Pickering, Connick and McDonald, and their

progeny.

As previously discussed, this Court’s position is

clear, and with the exception of one anomalous third

circuit opinion, has been consistently followed. The

proposed modification finds no support in the spirit or the

letter of this overwhelming and controlling authority.

IV. THIS COURT SHOULD NOT CREATE NEW LAW

TO ALLOW PETITIONER TO PURSUE HIS

MALICIOUS PROSECUTION AND ABUSE OF

PROCESS CLAIMS

Petitioner also asks this Court to vitiate the

requirement that a malicious prosecution or abuse of

process claim must be founded on a constitutional

violation in order to be actionable under 42 U.S.C.

§ 1983. Again, however, he has offered no persuasive

rationale for the requested departure from well-established

precedent.

In California, the essential elements of the tort of

malicious prosecution are: (1) the action was commenced by

or at the direction of the defendant; (2) the action was

brought without probable cause; (3) the action was initiated

with malice; and (4) the action was terminated in the

plaintiff's favor. Bertero v. National General Corp. (1974) 13

Cal.3d 43, 50; Sheldon Appel Co. v. Albert & Oliker (1989) 47

Cal.3d 863, 871-872. Such actions are not favored in the law.

Id. at 872-873.

There are additional federal requirements if the

claim is brought pursuant to 42 U.S.C. § 1983:

10

In [the Ninth C]ircuit, the general rule is that

a claim of malicious prosecution is not

cognizable under 42 U.S.C. § 1983 if the

process is available within the state judicial

system to provide a remedy. Bretz v. Kelman,

773 F.2d 1026, 1031 (9th Cir. 1985) (en banc);

Cline v. Brusset, 661 F.2d 108, 112 (9th Cir.

1981). However, “an exception exists to the

general rule when a malicious prosecution is

conducted with the intent to deprive a person

of equal protection of the laws or is otherwise

intended to subject a person to a denial of

constitutional rights.” Bretz, 773 F.2d at 1031;

Cline, 661 F.2d at 112.

Usher v. City of Los Angeles, 828 F.2d 556, 561-562. In other

words, a malicious prosecution claim is not actionable under

section 1983 unless there is an attendant violation of a

constitutional right. Once the District Court ruled against

Petitioner as a matter of law on his First Amendments

claims, a ruling that the malicious prosecution claim was

untenable necessarily followed.

The same rationale applied to Petitoner’s abuse of

process claim. The essential elements of an abuse of process

claim in California are: (1) the ulterior motive or purpose of

the defendant in using the process and (2) the wrongful act,

i.e., use of the process in an improper manner. Pimentel v.

Houk (1951) 101 Cal.App.2d 884, 887; Tellefsen v. Key 5 ast

Transit Lines (1961) 198 Cal.App.2d 611, 614.

The District Court relied on Cameo Convalescent

Center, Inc. v. Senn, 738 F.2d 836, 845 (7th Cir. 1978) in

concluding that Petitioner's abuse of process claim also

failed because it was not based on a constitutional violation.

[Petitioner's Appendix H, pp. 37a-38a] In Cameo, the court

held:

TBE Rw

Whether abuse of legal process or malicious

prosecution rises to the level of a

constitutional violation actionable under 42

U.S.C. § 1983 depends upon whether, “acting

under color of state law, the defendant has

subjected the plaintiff to a deprivation of

constitutional magnitude.” Hampton v.

Hanrahan, 600 F.2d at 630. However,

“conduct which merely engenders common

law tort liability, without infringing on a

constitutionally protected interest, is not a

sufficient basis to support a cause of action

under Section. 1983. Beker Phosphate

Corporation v. Muirhead, 581 F.2d 1187, 1189

(Sth Cir. 1978). “[{T]he common law tort of

misuse of legal procedure, without more, does

not rise to the level of Constitutional wrong

remedied by Section 1983.” Id.

Cameo Convalescent Center, Inc. v. Senn, 738 F.2d 836, 845 (7th

Cir. 1978) (emphases added.) In short, the District Court

applied the same standard to the malicious prosecution and

abuse of process claims, and in the absence of a viable

constitutional violation, found they lacked merit as a matter

of law.

As he did below, Petitioner relies heavily on Albright

v. Oliver, 510 U.S. 266 (1994) in support of his argument that

these claims should be maintainable based on allegations of

“substantive due process.” As the District Court found,

however , this case is inapplicable because it arose from a

criminal prosecution, and was factually driven. As with the

First Amendment claims, the District Court’s decision on the

malicious prosecution and abuse of process claims was

based on controlling legal precedent appropriately and

correctly applied to the facts of this case. Review by the

Court is not warranted.

12

CONCLUSION

Based on the foregoing, Respondents Chino Valley

Independent Fire District and Al Grams respectfully submit

that the Franklin Sexton’s Petition for Writ of Certiorari

should be denied in its entirety. Petitioner has had his day

in court and has not shown further review is warranted.

Respectfully submitted,

JULES S. ZEMAN (of Counsel)

KEVIN M. OSTERBERG

NANCY E. LUCAS

HAIGHT, BROWN & BONESTEEL, LLP

6080 Center Drive, Suite 800

Los Angeles, CA 90045

(310) 215-7100

Counsel for Respondents

Chino Valley Independent Fire District

and Al Grams

13

Jere ree roe.

TABLE OF CONTENTS

Appendix A to Brief in Opposition

Page

Constitutional and Statutory Provisions:

Constitution of the United States, Amendment I........App. A-1

42 U.S.C. § 1983 ...1.ccecssssssccsscsscnscscscscsssasessresesssecsseseseonces App. A-1

California Labor Code § 3212........sssssseesseeseeessneees App. A-1

Constitution of the United States, Amendment I:

Congress shall make no law respecting an

establishment of religion, or prohibiting the

free exercise thereof; or abridging the

freedom of speech, or of the press; or the

right of the people peaceably assemble, and

to petition the Government for a redress of

grievances.

42 U.S.C. § 1983:

Every person who, under color of any statute,

ordinance, regulation, custom, or usage, of

any State or Territory or the District of

Columbia, subjects, or causes to be subjected,

any citizen of the United State or other

person within the jurisdiction thereof to the

deprivation of any rights, privileges, or

immunities secured by the Constitution and

laws, shall be liable to the party injured in an

action at law, suit in equity, or other

proceeding for redress, except that in any

action brought against a judicial officer for an

act or omission taken in such officer's judicial

capacity, injunctive relief shall not be granted

unless a declaratory decree was violated or

declaratory relief was unavailable.

California Labor Code § 3212:

In the case of members of a sheriff's office,

district attorney's staff of inspectors and

investigators or of police or fire departments

of cities, counties, cities and counties, districts

or other public or municipal corporations or

political subdivisions, whether such members

are volunteer, partly paid, or fully paid, and

in the case of active firefighting members of

App. A-1

the Department of Forestry and Fire

Protection whose duties require firefighting

or of any county forestry or firefighting

department or unit, whether voluntary, fully

paid, or partly paid, and in the case of

members of the warden service of the

Wildlife Protection Branch of the Department

of Fish and Game whose principal duties

consist of active law enforcement service,

excepting those whose principal duties are

clerical or otherwise do not clearly fall within

the scope of active law enforcement service

such as stenographer, telephone operators,

and other officeworkers, the term "injury" as

used in this act includes hernia when any

part of the hernia develops or manifests itself

during a period while such member is in the

service in such office, staff, division,

department or unit, and in the case of

members of such fire departments, except

those whose principal duties are clerical, such

as stenographers, telephone operators and

other officeworkers, and in the case of county

forestry or firefighting departments, except

those whose principal duties are clerical, such

as stenographers, telephone operators and

other officeworkers, and in the case of active

firefighting members of the Department of

Forestry and Fire Protection whose duties

require firefighting, and in the case of

members of the warden service of the

Wildlife Protection Branch of the Department

of Fish and Game whose principal duties

consist of active law enforcement service,

excepting those whose principal duties are

clerical or otherwise do not clearly fall within

the scope of active law enforcement service

such as stenographer, telephone operators,

App. A-2

and other officeworkers, the term "injury"

includes pneumonia and heart trouble which

develops or manifests itself during a period

while such member is in the service of such

office, staff, department or unit. In the case

of regular salaried county or city and county

peace officers, the term "injury" also includes

any hernia which manifests itself or develops

during a period while the officer is in the

service. The compensation which is awarded

for such hernia, heart trouble or pneumonia

shall include full hospital, surgical, medical

treatment, disability indemnity, and death

benefits, as provided by the workers'

compensation laws of this state.

Such hernia, heart trouble or pneumonia so

developing or manifesting itself in such cases

shall be presumed to arise out of and in the

course of the employment. This presumption

is disputable and may be controverted by

other evidence, but unless so controverted,

the appeals board is bound to find in

accordance with it. Such presumption shall

be extended to a member following

termination of service for a period of three

calendar months for each full year of the

requisite service, but not to exceed 60 months

in any circumstance, commencing with the

last date actually worked in the specified

capacity.

Such hernia, heart trouble or pneumonia so

developing or manifesting itself in such cases

shall in no case be attributed to any disease

existing prio. to such development or

manifestation.

App. A-3