Unpublished Disposition, 860 F.2d 1088 (9th Cir. 1988)

MEMORANDUM^** 

John F. Biggs appeals the district court's decision granting summary judgment to the State of Montana, Broadwater County, Highway Patrolman Charles Larson, Sheriff Rick Barthule, and Deputy Ray Price, in his 42 U.S.C. § 1983 action for damages. Biggs also appeals the district court's denial of his 28 U.S.C. § 1915(d) motions for appointment of counsel.

We review a district court's denial of a motion to appoint counsel under 28 U.S.C. 1915(d) for abuse of discretion. Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). The record does not reveal "exceptional circumstances" which would justify appointment of counsel. See id. Biggs was fully capable of articulating his claims. Moreover, his claims were without merit. We find no abuse of discretion.

We review a district court's grant or denial of summary judgment de novo. Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986).

The eleventh amendment bars suits in federal court against a state by citizens of either that state or another state. Edelman v. Jordan, 415 U.S. 651, 662-63 (1974). Although a state may waive its eleventh amendment immunity to suit, Montana has not done so. State v. Peretti, 661 F.2d 756, 758 (9th Cir. 1981). The district court properly granted summary judgment to Montana.

A police officer is entitled to qualified immunity from 42 U.S.C. § 1983 liability where his conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have know. See Harlow v. Fitzgerald, 457 U.S. 800, 817-18 (1982). All of Patrolman Larson's alleged actions fall within the reach of qualified immunity.

A police officer called upon to execute an arrest warrant may properly assume that the warrant was valid. Whiteley v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 568 (1971). Patrolman Larson's refusal to accept Biggs' offer to pay bail did not deprive Biggs of constitutional rights. In Montana, an officer has discretionary authority to accept cash bail. See Mont.Code Ann. Sec. 46-9-303 (1987) ("a peace officer may accept cash bail on behalf of a judge ..."). Larson's refusal to accept bail was neither discriminatory nor capricious. It did not violate due process. See Kelly v. Springett, 527 F.2d 1090, 1093 (9th Cir. 1975). Finally, Larson did not violate Biggs' constitutional rights by handcuffing him and holding him in a police car for twenty minutes. An arresting officer may maintain custody over an arrestee regardless of the nature of the offense, the likelihood of flight, or the possession of a weapon. Washington v. Chrisman, 455 U.S. 1, 6-7 (1982). The procedure used by Larson in effecting Biggs' arrest was reasonable under the circumstances. Larson is entitled to qualified immunity from liability.

C. Claims Against Sheriff Barthule and Deputy Price

Barthule and Price are entitled to qualified immunity from liability under 42 U.S.C. § 1983. They acted reasonably when they seized Biggs' automobile. A peace officer is justified in impounding an arrested person's vehicle. Cardenas v. Pitchess, 506 F.2d 1224 (9th Cir. 1974). Search of the automobile was reasonably conducted pursuant to a warrant. Refusing Biggs a telephone call for twenty-two hours did not deprive Biggs of his sixth amendment right to counsel. An accused person has a right to counsel only at critical stages of the proceedings against him. United States v. Perez, 776 F.2d 797, 800 (9th Cir. 1985). Biggs was represented by counsel at all critical stages of his criminal prosecution and trial. Delaying Biggs' use of the telephone did not violate Biggs' sixth amendment rights.

Because none of the actions of Broadwater County employees violated Biggs' constitutional rights, Broadwater County cannot be liable to Biggs under 42 U.S.C. § 1983.

AFFIRMED.