L.r. Bretz, Plaintiff-appellant, v. Zollie Kelman, Jack R. Lande, Eugene R. Welborn, Defendants-appellees, 773 F.2d 1026 (9th Cir. 1985)

GOODWIN, Circuit Judge

Appellant challenges the dismissal for failure to state a claim of his action alleging a conspiracy among police, prosecutors and personal enemies to accuse and prosecute him falsely for burglary. We reverse the judgment and remand for further proceedings.

Bretz alleges that the defendants, by means of false testimony, perjury and other prosecutorial misconduct denied him bail on unrelated charges and ultimately caused his imprisonment in a maximum security facility all in violation of his right to liberty under the Fourteenth Amendment.

On October 24, 1976, Lande, Welborn and a third person were arrested for the burglary of Kelman's residence in Great Falls, Montana. On January 26, 1977, Bretz, who had been incarcerated on an unrelated charge since December 1, 1976, was charged by an information with conspiracy in the Kelman burglary. Upon trial, Bretz was later acquitted for lack of credible evidence. Following his acquittal, Bretz' application for bail on the unrelated charges was denied, allegedly because of the recent prosecution on the unfounded burglary charge. Bretz alleges that the burglary charge was the result of a conspiracy among Lande, Welborn, Kelman, two Great Falls police officers and the City of Great Falls. He alleges that all five named defendants committed perjury, threatened and coerced witnesses, and concealed and falsified evidence.

After he was exonerated on the allegedly framed charges, Bretz filed pleadings, which, when liberally construed, allege a cause of action under 42 U.S.C. § 1983 and Sec. 1985.¹  The district court, treating the papers as pleadings which attempted to federalize a routine state tort claim for malicious prosecution and slander, dismissed the claim. A divided panel of this court affirmed. Bretz v. Kelman, 722 F.2d 503 (9th Cir. 1983), withdrawn, 729 F.2d 613 (9th Cir. 1984). We took this case en banc along with two other Sec. 1983 prisoner claims because of the importance and complexity of the questions and the doctrinal ambiguity which exists in this circuit over application of Parratt v. Taylor, 451 U.S. 527, 101 S. Ct. 1908, 68 L. Ed. 2d 420 (1981).² 

Even though the petitioner's brief does not specifically refer to Sec. 1985, we must first determine whether Bretz has stated a cause of action under Sec. 1985(2) or Sec. 1985(3) for a conspiracy to deny him equal protection of the laws.³  In Griffin v. Breckenridge, 403 U.S. 88, 102, 91 S. Ct. 1790, 1798, 29 L. Ed. 2d 338 (1971), the Supreme Court held that the language of Sec. 1985(3) requiring an intent to deprive the victim of equal protection or equal privileges and immunities must be limited to cases alleging some racial or class-based invidious discrimination. Otherwise, the court explained, Sec. 1985 would become a generalized federal tort law to be invoked for any private tortious conspiracy. Id. at 101-102, 91 S. Ct. at 1797-98.

Recently the Supreme Court limited Griffin to the first clause of Sec. 1985(3), holding that Griffin did not apply to conspiracies to intimidate witnesses in federal courts under the first clause of Sec. 1985(2). Kush v. Rutledge, 460 U.S. 719, 103 S. Ct. 1483, 75 L. Ed. 2d 413 (1983). The Court noted that, beyond applying to the first clause of Sec. 1985(3), " [t]here is no suggestion [in Griffin] that its reasoning applies ... to the portions of the statute that prohibit interference with federal officers, federal courts, or federal elections." Id. at 726. The Kush court left undisturbed the Griffin holding that the first clause of Sec. 1985(3) requires a showing of discriminatory animus, because the "underlying activity ... is not institutionally linked to federal interests and ... is usually of primary state concern." Id at 725. See Mollnow v. Carlton, 716 F.2d 627, 630 (9th Cir. 1983), cert. denied, --- U.S. ----, 104 S. Ct. 1595, 80 L. Ed. 2d 126 (1984).

Because Bretz does not assert any federal interest or involvement with the alleged conspiracy, we must conclude that his Sec. 1985 claims are based upon the second clause of Sec. 1985(2) or the first clause of Sec. 1985(3). Bretz does not, moreover, allege that he is a member of a class (e.g., state convicts) which suffers from invidious discrimination. Even construing his complaint liberally, we cannot find an allegation of racial or class-based discrimination. He cannot, therefore, state a cause of action under the first clause of Sec. 1985(3). Griffin, 403 U.S. at 102, 91 S. Ct. at 1798. The question remains, then, whether Bretz has stated a claim under the second clause of Sec. 1985(2). We hold that he has not, because we conclude that an allegation of class-based animus is required for a claim under that clause as well.

It is true that in Kush v. Rutledge, 460 U.S. 719, 103 S. Ct. 1483, 75 L. Ed. 2d 413 the Supreme Court held that no allegations of racial or class-based animus were required to state a claim under the first clause of Sec. 1985(2), which proscribes conspiracies to interfere with the administration of justice in the federal courts. The reasoning of the Supreme Court in Kush, however, as well as that in Griffin, supports our conclusion that class-based animus is an essential part of a cause of action under the second clause of Sec. 1985(2).

As the Court pointed out in Kush, 460 U.S. at 724, 103 S. Ct. at 1487, all parts of Sec. 1985 were originally passed by Congress as a single statutory paragraph. Five types of conspiracy were proscribed: (1) conspiracies to interfere with the performance of federal duties by federal officers, now covered by Sec. 1985(1); (2) conspiracies to interfere with justice in the federal courts, now covered by the first clause of Sec. 1985(2); (3) conspiracies to interfere with justice in the state courts "with intent to deny any citizen" "due and equal protection of the laws," now covered by the second clause of Sec. 1985(2) (emphasis added);⁴  (4) private conspiracies to deny "any person or class of persons ... the equal protection of the laws," now covered by the first clause of Sec. 1985(3) (emphasis added); and (5) conspiracies to interfere with voting in federal elections, now covered by the second clause of Sec. 1985(3). It bears emphasis that only two of these statutory provisions require an intent to deny the victim the equal protection of the laws, see Kush, 460 U.S. at 725, 103 S. Ct. at 1487, and they are the two provisions of Sec. 1985 upon which Bretz must rely, if he may rely upon any.

In holding in Griffin that class-based animus was required for a claim under the first clause of Sec. 1985(3), the Supreme Court stated:

The language requiring intent to deprive of equal protection, or equal privileges and immunities, means that there must be some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action....

Griffin, 403 U.S. at 102, 91 S. Ct. at 1798 (emphasis original) (footnote omitted). While the Supreme Court was addressing the first clause of Sec. 1985(3), its words apply equally well to the second clause of Sec. 1985(2).

In Kush the Supreme Court elaborated upon its ruling in Griffin. The Court in Kush gave three reasons why class-based animus was not required for a claim under the first clause of Sec. 1985(2), which proscribes conspiracies to interfere with justice in the federal courts:

First, the scope of the Griffin opinion [was] carefully confined to "the portion of Sec. 1985(3) [then] before us...." Second, the analysis in the Griffin opinion relied heavily on the fact that the sponsors of the 1871 bill added the "equal protection" language in response to objections that the "enormous sweep of the original language" vastly extended federal authority and disrupted state control over private conduct.... That legislative background does not apply to portions of the statute that prohibit interference with federal officers, federal courts, or federal elections. Third, and of greatest importance, the statutory language that provides the textual basis for the "class-based, invidiously discriminatory animus" requirement simply does not appear in the portion of the statute that applies to this case.

460 U.S. at 726, 103 S. Ct. at 1488.

The reasoning of the Supreme Court in Griffin and Kush compels the conclusion that an allegation of class-based animus is an essential requirement of a claim under the second clause of Sec. 1985(2).⁵  The "equal protection" language appears in that clause, just as it does in the first clause of Sec. 1985(3). It is consistent with the sponsors of the 1871 bill to limit the reach of the second clause of Sec. 1985(2) because that clause deals with the state courts, rather than with matters traditionally within federal authority.⁶  Accordingly, we read the "equal protection" language of the second clause of Sec. 1985(2) to require an allegation of class-based animus for the statement of a claim under that clause.⁷  Bretz has made no such allegation, and consequently has stated no such claim.

In addition to alleging a cause of action under Sec. 1985 for a conspiracy to deprive him of equal protection, Bretz also alleges a cause of action under Sec. 1983 for denying him liberty in violation of his right to due process of law. He says he was denied bail in an unrelated criminal case as the direct result of being falsely accused on a burglary charge. Bretz has properly stated a claim under Sec. 1983, if he claims that he was deprived of liberty: (1) under color of law and (2) without due process under the Fourteenth Amendment. The district court dismissed Bretz' Sec. 1983 claim, citing Parratt v. Taylor, 451 U.S. 527, 101 S. Ct. 1908, 68 L. Ed. 2d 420 (1981), as dispositive.

In Parratt v. Taylor, the Supreme Court held that a cause of action could lie under Sec. 1983 for negligent, random and unauthorized deprivations of property by state officials but only if the state had effectively denied the plaintiff a meaningful postdeprivation remedy in state courts. Later, the Court extended Parratt to situations involving intentional, but random and unauthorized deprivations of property by state officials. Hudson v. Palmer, --- U.S. ----, 104 S. Ct. 3194, 82 L. Ed. 2d 393 (1984). As we have recently noted, "Parratt and Hudson dealt with relatively minor infractions of prisoners' interests in their personal property, and did not deal with official assaults, batteries or other invasions of personal liberty." Haygood v. Younger, 769 F.2d 1350, 1356 (9th Cir. 1985). The premise underlying both Hudson and Parratt is that, where the challenged deprivation is random and unauthorized, it is impracticable or impossible for the state to provide predeprivation process because the governmental machinery cannot foresee or predict random unauthorized actions. The state must be given at least one opportunity to redress a minor deprivation before a constitutional violation can have occurred; where the deprivation is both of a relatively insignificant interest and is utterly unpredictable, a postdeprivation remedy is the state's one opportunity to provide due process.

Since Parratt, the Supreme Court has refused to extend the doctrine to instances where a deprivation of property was the result of faulty state procedures, reasoning that such deprivations are foreseeable and it is not impracticable to provide predeprivation process. Logan v. Zimmerman Brush Co., 455 U.S. 422, 102 S. Ct. 1148, 71 L. Ed. 2d 265 (1982).

To hold that Parratt, rather than Logan, controls the case at bar, therefore, we must find, at a minimum, that Bretz has alleged a deprivation of a constitutional right under color of law and that the deprivation was random and unauthorized. We can begin our analysis by assuming that the conspiracy which Bretz alleges, if proved, deprived him of liberty under color of law.

An incorrect arrest does not provide grounds for a claim of deprivation of liberty without due process if the arrest was made pursuant to a valid warrant based upon probable cause. Baker v. McCollan, 443 U.S. 137, 143-145, 99 S. Ct. 2689, 2694-95, 61 L. Ed. 2d 433 (1979). While innocence (or, as in the present case, acquittal after trial) may be relevant to a tort claim for false imprisonment, it is largely irrelevant to a claim of deprivation of liberty without due process of the law. Id. at 145, 99 S. Ct. at 2694-95. Nevertheless, if an arrest is made in bad faith, there may be a cause of action under Sec. 1983 as an illegal, unconstitutional arrest. See Guenther v. Holmgreen, 738 F.2d 879, 883 (7th Cir. 1984), cert. denied, --- U.S. ----, 105 S. Ct. 1182, 84 L. Ed. 2d 329 (1985). See also Norton v. Liddel, 620 F.2d 1375, 1378-9 (10th Cir. 1980).

We have held that malicious prosecution generally does not constitute a deprivation of liberty without due process of law and is not a federal constitutional tort if process is available within the state judicial systems to remedy such wrongs. Cline v. Brusett, 661 F.2d 108, 112 (9th Cir. 1981). But, we have also held that 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. Id. In Cline, we reversed the dismissal of Cline's complaint which had alleged facts in many important respects similar to those in the case at bar.

The similarity between the allegations here and those in Cline are too striking to ignore. In Cline, as here, there was an alleged conspiracy among Montana state officials and private citizens to convict the plaintiff on groundless charges and to deny him a fair trial. Both Cline and Bretz were eventually vindicated: Cline on appeal and Bretz at trial. If Bretz' allegations are eventually shown to be true, there was a conspiracy among government prosecutors, police officers and potential witnesses, all aimed at depriving Bretz of his liberty by distorting and corrupting the processes of the law.

Accepting Bretz' allegations as true, we have no trouble concluding that the complaint describes a taking of liberty by public officers and their civilian cohorts under color of law. Further development of the facts may confirm or refute this preliminary acceptance of the claim, but because this case is before us upon an appeal of a Fed. R. Civ. P. 12(b) (6) order, we must accept as true all the allegations of Bretz' complaint.

Given the proposition that Bretz may have been deprived of his liberty under color of law, we must next consider whether the case falls under the Parratt line of cases or the Logan line of cases. The Parratt analysis, in which the touchstone for predeprivation process is the feasibility of providing such process, is simply inapplicable where the alleged deprivation is inextricable from the alleged corruption of the process which the state ordinarily could provide. Bretz' allegations question whether the state court system could have been expected to provide him with due process--either before or after the alleged conspiracy to frame him.

Parratt is directed at minor infractions of prisoners interests, see Haygood, at 1356, when the alleged conduct is random and unauthorized, both in its inception and in its execution. By definition, a conspiracy, if one existed here, cannot be a random act, even if it was accomplished without the endorsement of the state governmental apparatus. A conspiracy to prosecute maliciously may, indeed, be unauthorized, but so is much of the state action which has historically led to liability under Sec. 1983.

As in Logan, Bretz is challenging the direct abuse of the state process itself. It is meaningless to speak of the state's ability to provide postdeprivation remedial process where the state process itself has been abused. Consequently, also as in Logan, the state cannot satisfy the due process clause here by providing Bretz with a postdeprivation remedy in state court in the form of a tort action for malicious prosecution. Because a conspiracy under Sec. 1985 is, by its very definition, not random behavior, we hold that Parratt cannot be applicable to a cause of action based on the allegations in this case relying upon both Sec. 1985 and Sec. 1983.

We accordingly reverse and remand to the district court with instructions to consider the Bretz complaint in light of Logan and Cline and to conduct such other proceedings as may become appropriate in view of further discovery.

Reversed and remanded.