Unpublished Disposition, 857 F.2d 1477 (9th Cir. 1985)

No. 86-4385.

United States Court of Appeals, Ninth Circuit.

Before WALLACE and REINHARDT, Circuit Judges, and ALBERT LEE STEPHENS, Jr.,^*  District Judge.

MEMORANDUM

The Elliotts brought a tort action under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 1346, and federal civil rights claims pursuant to 42 U.S.C. §§ 1983 and 1985, and Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), against various county, state, and federal governmental entities and their officials. The Elliotts seek both monetary and injunctive relief against these defendants for allegedly conspiring to deprive them of their first and fourth amendment rights. They allege that the various defendants, in an effort to intimidate them from speaking out against United States Forest Service (Forest Service) herbicide-spraying policies, (1) conspired to conduct a general search of their property without probable cause, and (2) conspired to initiate a vindictive criminal prosecution against them and to harass them through low-altitude helicopter and airplane overflights. The district court granted the county and state defendants' motion for failure to state a claim under Fed. R. Civ. P. 12(b) (6) and granted the federal defendants' summary judgment motion under Fed. R. Civ. P. 56(b). We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm in part and reverse in part.

We review de novo both the dismissal of the Elliotts' claims against the county and state defendants for failure to state a claim upon which relief can be granted, see Cadillac Fairview/California, Inc. v. Dow Chemical Co., 840 F.2d 691, 693 (9th Cir. 1988) (Cadillac Fairview), and the entry of summary judgment in favor of the federal defendants. See Leer v. Murphy, 844 F.2d 628, 631 (9th Cir. 1988) (Leer) .

* The Elliotts brought suit for damages against all defendants under the FTCA, 28 U.S.C. § 1346. Because the United States is the only proper party to be named as a defendant under section 1346, Woods v. United States, 720 F.2d 1451, 1452 n. 1 (9th Cir. 1983), we affirm the district court's dismissal of this claim as to all county and state defendants and affirm the entry of summary judgment on this claim in favor of the federal defendants.

II

We also affirm the district court's denial of the Elliotts' section 1985 claim as to all defendants. Claims of conspiracies as alleged by the Elliotts require an allegation of class-based animus. Bretz v. Kelman, 773 F.2d 1026, 1029 (9th Cir. 1985) (Bretz) ; United Brotherhood of Carpenters and Joiners of America v. Scott, 463 U.S. 825, 834-35 (1983); Gibson v. United States, 781 F.2d 1334, 1341 (9th Cir. 1986) (Gibson), cert. denied, 107 S. Ct. 928 (1987). The Elliotts have not alleged that the defendants in this case have conspired against them on account of their race. Consequently, they have failed to state a claim against any of the defendants under the applicable subsections of section 1985. See Bretz, 773 F.2d at 1028-30.

III

We affirm the dismissal of the Elliotts' claim for monetary damages against Lincoln County under section 1983. In Monell v. New York City Department of Social Services, 436 U.S. 658, 690-94 (1978), the Supreme Court held that while municipalities and other local governmental units could be sued under section 1983 for monetary, declaratory, or injunctive relief, their liability could not be predicated on a theory of respondeat superior. Rather, municipalities are subject to suit only to the extent that the complained of acts of municipal employees may fairly be said to represent official policy, custom, or practice of the local government. We have extended the reasoning of Monell to impose section 1983 liability on a county. Evers v. County of Custer, 745 F.2d 1196, 1203 (9th Cir. 1984).

Here, the Elliotts have failed to allege that the county officials involved in this case were acting pursuant to any official policy, practice, or custom of Lincoln County. That Lincoln County carries out marijuana eradication programs does not amount to an allegation that it also has an official policy of harassing those who speak out against Forest Service policies. Therefore, Lincoln County is not subject to suit for either monetary or injunctive relief.

District Attorney Wasmann, Chief Deputy District Attorney Stapleton, and Deputy District Attorney Newman are prosecutors whose acts of initiating and pursuing the Elliotts' criminal prosecution fall clearly within the scope of their prosecutorial duties. "Absolute prosecutorial immunity exists if the prosecutor acts within the scope of his or her authority and in a quasi-judicial capacity.... If the prosecutor acts as an advocate 'in initiating a prosecution and in presenting the state's case,' absolute immunity is warranted." Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 678 (9th Cir. 1984) (Ybarra), quoting Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976). None of the alleged acts of these prosecutors go beyond the traditional prosecutorial capacity. Hence, we agree with the district court that they are absolutely immune from a suit for damages under section 1983.

Recognizing that a municipal or county official in a supervisory position can be held liable for damages under section 1983 for the misconduct of his subordinates only if he authorized, directed, or approved of their actions, see Rizzo v. Goode, 423 U.S. 362, 364-65 n. 1, 371-74 (1976); Ybarra, 723 F.2d at 680, the district court dismissed the Elliotts' section 1983 monetary claim against Lincoln County Sheriff Spencer. The district court reasoned that the Elliotts' allegation that Sheriff Spencer was "responsible for the actions of his employees" was an impermissible attempt to predicate the liability of a supervisor on a theory of respondeat superior. We agree, but the Elliotts also alleged in their complaint that Sheriff Spencer "performed, or arranged for performance of the surveillance complained of herein." This is an allegation of direct participation or authorization by Sheriff Spencer in the alleged misconduct of his deputies. We therefore reverse the district court's dismissal of the Elliotts' section 1983 damage claim against Sheriff Spencer.

Section 1983 damage claims against Deputy Sheriffs Bergman, Robinson, and Brucha were dismissed by the district court because it concluded that the applicable statute of limitations for section 1983 claims in Oregon is two years and determined that the Elliotts' suit was filed on October 23, 1985, over two years after both the alleged participation of these deputy sheriffs in a general search of the Elliotts' property on September 25, 1983, and the last overt act of the alleged conspiracy on October 4, 1983. In reaching its conclusion, the district court recognized that in this circuit, a cause of action for a conspiracy to deny civil rights accrues from the "last overt act." See Venegas v. Wagner, 704 F.2d 1144, 1146 (9th Cir. 1983) (per curiam). " [T]he cause of action runs separately from each overt act that is alleged to cause damage to the plaintiff." Gibson, 781 F.2d at 1340.

Moreover, the district court based its choice of the applicable statute of limitations on Wilson v. Garcia, 471 U.S. 261, 276, 280 (1985) (Wilson), which we have construed as holding that "section 1983 claims should be invariably characterized as personal injury actions for the purpose of identifying which state period of limitation" to apply. Gibson, 781 F.2d at 1338 (interpreting Wilson) . Because Ore.Rev.Stat. 12.110 provides that personal injury actions must be brought within two years, the district court applied a two-year limitations period to the Elliotts' section 1983 claims.

In their complaint, however, the Elliotts alleged that airplane and helicopter surveillance of their property continued through 1984 and into 1985. While we realize that the Elliotts have failed to allege that the three deputy sheriffs were directly involved in these subsequent acts of surveillance, the Elliotts did allege that the defendants in this case were all part of an ongoing conspiracy to harass the Elliotts and others who voiced their opposition to Forest Service policies. As alleged members of this conspiracy, the deputy sheriffs can be held vicariously liable for the acts of the coconspirators who actually planned and conducted the overflights in 1984 and 1985, see United States v. Beecroft, 608 F.2d 753, 757 (9th Cir. 1979) ("while each conspirator is part of the conspiracy, he is responsible for his coconspirators' acts committed pursuant to and in furtherance of the conspiracy"), even if they were unaware of those subsequent overflights. See id.

In view of the rule that in a motion to dismiss under Fed. R. Civ. P. 12(b) (6), the district court was required to assume as true all factual allegations in the complaint and to construe them in the light most favorable to the nonmoving party, see Western Reserve Oil & Gas Co. v. New, 765 F.2d 1428, 1430 (9th Cir. 1985), cert. denied, 106 S. Ct. 795 (1986), we hold that it was improper for the district court to conclude that the last overt act attributable to these county officials occurred on or before October 4, 1983, and to hold on the basis of that finding that the Elliotts' claims against them were time-barred. On remand, the district court should also reconsider the applicable statute of limitations for a section 1983 action in Oregon at the time the Elliotts' cause of action accrued in light of our decisions in Gibson, 781 F.2d at 1338-40, and Usher v. City of Los Angeles, 828 F.2d 556, 558-61 (9th Cir. 1987), pertaining to the retroactive effect of the Supreme Court's decision in Wilson, 471 U.S. 261.

IV

By virtue of the eleventh amendment to the United States Constitution, the Elliotts' claim for damages under section 1983 against the State of Oregon is barred unless Oregon has clearly and unequivocally consented to suit in section 1983 actions. Alabama v. Pugh, 438 U.S. 781, 782 (1978). We agree with the district court that no showing has been made that Oregon has made a sufficiently clear and unambiguous waiver of its eleventh amendment immunity, see Edelman v. Jordan, 415 U.S. 651, 673 (1974), to being sued in federal court, see Atascadero State Hospital v. Scanlon, 473 U.S. 926 (1985), for us to find that it has consented to damage actions under section 1983.

The Elliotts' claim for damages against State Troopers Stroup and Sheets in their official capacities should also be dismissed on eleventh amendment grounds. Suits seeking monetary relief from state officials in their official capacities are considered to be in reality a suit against the state, because any judgment against the state officials in their official capacities will have to be paid out of the state treasury. See Leer, 844 F.2d at 631-32.

Regarding the Elliotts' claim for damages against the two state troopers in their individual capacities, we believe that the district court erred in determining at the pleading stage that these particular claims are time-barred under a two-year statute of limitations. For the same reasons that were given in part III.D., we reverse the dismissal of these claims.

Magistrate Huckleberry is judicially immune from suit for his act of authorizing the search warrant for the Elliotts' property on September 25, 1983. See Stump v. Sparkman, 435 U.S. 349, 360-64 (1978). A judicial officer is absolutely immune for acts performed in his "judicial" capacity. See id. at 360. Issuing a search warrant is so clearly a function normally performed by a judge as to leave no room for questioning whether it is an act performed in a "judicial" capacity. See id. at 362. We thus affirm the district court's dismissal of the Elliotts' claim for damages against him.

V

The Elliotts' Bivens claims against Lincoln County and the State of Oregon and state agents were properly dismissed. Bivens actions are directed against federal agents.

VI

Forest Supervisor Fellows and United States Forest Service Special Agent Gainer (the "federal defendants"), unlike the county and state defendants, prevailed below on a motion for summary judgment pursuant to Fed. R. Civ. P. 56(b).

To prevail against the federal defendants under section 1983, the Elliotts must prove that they acted "under color of state law." Gibson, 781 F.2d at 1342-43; Parratt v. Taylor, 451 U.S. 527, 536 (1981). We agree with the district court that the Elliotts have offered no evidence that Forest Supervisor Fellows, a federal employee, was acting under color of state law. Hence, we affirm the district court's entry of summary judgment in favor of Fellows on the Elliotts' section 1983 claim.

Special Agent Gainer, on the other hand, had been appointed a special deputy sheriff for Lincoln County at the time the alleged unconstitutional acts occurred. Although Gainer avers that during this time he acted solely in the capacity of a United States Forest Service agent and that he received remuneration exclusively from the Forest Service, we agree with the district court that this is an issue of material fact, that cannot be resolved on summary judgment.

However, the district court concluded that, because the applicable statute of limitations on a section 1983 claim had run, summary judgment should be entered in favor of Gainer on the Elliotts' section 1983 claim. But, as pointed out before, the overflights prevent summary disposition and the Elliotts came forward with affidavits in which they declared that the aerial surveillance of their property continued into 1985. This creates a genuine issue of material fact on when the last overt act in the alleged conspiracy occurred. Summary judgment on the Elliotts' section 1983 claim against Special Agent Gainer was thus inappropriate.

The federal defendants suggest in their brief and at oral argument that an aerial surveillance of property does not violate anyone's fourth amendment rights and, therefore, cannot be considered an overt act that begins the statute of limitations running anew. But the Elliotts have alleged a conspiracy to retaliate against and chill their exercising their first amendment right to criticize Forest Service herbicide-spraying policies. In Gibson, 781 F.2d at 1338, we held that the use by government officers of frequent, low-altitude helicopter overflights designed to retaliate against plaintiffs for engaging in protected first amendment political activities and to deter them from engaging in such activities in the future constituted an actionable violation of their first amendment rights under section 1983. Hence, the continued overflights in 1984 and 1985 alleged by the Elliotts state a cognizable constitutional injury for purposes of rewinding the clock on the applicable limitations period.

On remand, as with the section 1983 claims against the county and state law enforcement officials, the district court should reconsider the applicable statute of limitations in light of our discussion in part III.D.

To the extent that the Elliotts aspire to maintain a Bivens action against the federal defendants in their official capacities, their Bivens claims were properly denied on a motion for summary judgment. " [A] Bivens action can be maintained against a defendant in his or her individual capacity only, and not in his or her official capacity." Daly-Murphy v. Winston, 837 F.2d 348, 355 (9th Cir. 1987).

But to the extent that the Elliotts are attempting to bring a Bivens action against the federal defendants in their individual capacities, we reverse the summary judgment in favor of the federal defendants. As we previously observed in part VI.B., the affidavits submitted by the Elliotts create a material issue of fact as to when the last overt act of the alleged conspiracy occurred. Consequently, it was improper for the district court to determine on summary judgment that the Elliotts' Bivens claims were time-barred.

On remand, the district court should reconsider in light of our decisions in Marshall v. Kleppe, 637 F.2d 1217, 1222-24 (9th Cir. 1980), and Gibson, 781 F.2d at 1341-42, whether the relevant statute of limitations in a Bivens action brought in Oregon should be the two-year period applicable to personal injury actions, see Or.Rev.Stat. 12.110 (1987), or the longer ten-year catch-all provision. See Or.Rev.Stat. 12.140 (1987). In Marshall and Gibson, we set forth the variables that should be weighed in ascertaining which of several available state limitations periods is most appropriately applied to a Bivens cause of action.

As an alternative ground for granting summary judgment in favor of the federal defendants, the magistrate opined that plaintiffs failed to effect proper service of their summons and complaint on Forest Supervisor Fellows and Special Agent Gainer. We do not reach this issue. Although the district court issued an order adopting the magistrate's findings and recommendations in their entirety, we believe the district court should specifically determine whether dismissal of the federal defendants would be appropriate under Fed. R. Civ. P. 4(j).

VII

The Elliotts have devoted most of their opening brief on appeal to criticizing the wisdom of our marijuana laws. In large part, they contend that the marijuana laws are irrational because marijuana is a harmless drug. Challenges to the constitutionality of the marijuana laws on the grounds that they are irrational have already been soundly rejected by this court. See, e.g., United States v. Rogers, 549 F.2d 107, 108 (9th Cir. 1976). To the extent that the Elliotts are taking issue with the wisdom of the social, economic, and ecological policies underlying the current regulation of marijuana, their arguments are better addressed to the legislature than to the judiciary. See Cadillac Fairview, 840 F.2d at 695.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.