Unpublished Disposition, 875 F.2d 870 (9th Cir. 1989)

MEMORANDUM^* 

BACKGROUND

Brian Schoenfield appeals the dismissal of his complaint for failure to state a claim. Thus, the following statement of facts assumes the allegations in the complaint are true.

Schoenfield was a student teacher for a fifth grade class when some female students claimed he had molested them. Rodney Lester, a Humboldt County Deputy Sheriff who had no training, skill or experience in investigating child molestation, commenced an investigation. He referred the investigation to the Humboldt County District Attorney, Terry Farmer.

Farmer was the Humboldt County employee responsible for determining who would investigate a case, and how much training and experience they should have. Farmer assigned the investigation of the case to Barbara Allsworth and Sylvia Douglas. When Farmer made this assignment, he knew that Allsworth and Douglas had no training or experience in investigating criminal cases, that Allsworth had been assigned as a child advocate for the children who made the claims, and that Allsworth and Douglas were prejudiced against people accused of child molestation. Farmer acted with gross negligence, reckless disregard and deliberate indifference to the consequences of his action. Allsworth and Douglas understood that their assignment was "to get" Schoenfield.

Lester, Allsworth and Douglas conspired to investigate the claims improperly. They destroyed and suppressed exculpatory evidence, failed to record exculpatory testimony, and conducted interviews of witnesses in a biased and suggestive manner. They advised the District Attorney's office of the merits of the case in an improper and inadequate way. For example, they claimed that the children had described fondling of their pubic areas and breasts when the children had said Schoenfield had merely patted their knees or shoulders. In presenting the evidence to the District Attorney they omitted exculpatory evidence and drafted misleading and biased synopses of the testimony obtained.

As a result of these activities Schoenfield was criminally prosecuted. Schoenfield was required to expend $90,000 to defend himself and he has been irreparably impaired in his ability to pursue his career as a teacher. He was acquitted.

Schoenfield filed a complaint against the County of Humboldt, Terry Farmer, Rodney Lester, Barbara Allsworth and Sylvia Douglas seeking damages under 42 U.S.C. section 1983 for the deprivation of his right to due process under the fourteenth amendment. The complaint also alleged that the court had pendent jurisdiction over his state law claims. Judge Patel dismissed this complaint with leave to amend, holding that Schoenfield failed to state a claim on which relief could be granted.

Schoenfield filed an amended complaint seeking damages under 42 U.S.C. section 1983 for the violation of his rights to procedural and substantive due process under the fourteenth amendment. He also sought damages under 42 U.S.C. section 1985(2) for an alleged conspiracy to impede the due course of justice with the intent to deny him equal protection of the laws and injure him in his property. In addition he alleged that the court had pendent jurisdiction over his state law claims.

Judge Patel dismissed the complaint with prejudice. She held that Schoenfield had failed to state a claim under section 1983 because his allegations did not show a substantive or procedural due process violation, and he failed to state a claim under section 1985(2) because he had not alleged the required "class-based animus."

DISCUSSION

A dismissal under Rule 12(b) (6) of the Federal Rules of Civil Procedure is reviewed de novo. Bergquist v. County of Cochise, 806 F.2d 1364, 1367 (9th Cir. 1986), disapproved on other grounds, Canton v. Harris, 109 S. Ct. 1197. Dismissal is appropriate only if the plaintiff " 'can prove no set of facts in support of his claim which would entitle him to relief.' " Id. (quoting Gibson v. United States, 781 F.2d 1334, 1337 (9th Cir. 1986), cert. denied, 479 U.S. 1054 (1987)).

THE SECTION 1983 CLAIM

"The first inquiry in any Sec. 1983 suit ... is whether the plaintiff has been deprived of a right 'secured by the Constitution and laws.' " Baker v. McCollan, 443 U.S. 137, 140 (1979) (quoting 42 U.S.C. § 1983). Schoenfield contends that he was denied due process because he would not have been prosecuted if the investigators had not presented false and incomplete evidence to the District Attorney who made the decision to prosecute. The prosecution resulted in the expenditure of money in defense of the action and impaired Schoenfield in his career as a teacher by stigmatizing him.

Malicious prosecution does not constitute a civil rights violation in the absence of a violation of the Equal Protection Clause or some other specific constitutional safeguard. Paskaly v. Seale, 506 F.2d 1209, 1212-13 (9th Cir. 1974); see Bretz v. Kelman, 773 F.2d 1026, 1031 (9th Cir. 1985) (en banc); contra Wheeler v. Cosden Oil & Chemical, 734 F.2d 254, 257-60 (5th Cir.), modified on other grounds, 744 F.2d 1131 (1984). The Ninth Circuit is in accord with most other circuits on this issue. See Annotation, Actionability of Malicious Prosecution Under 42 USCS Sec. 1983, 79 A.L.R.Fed. 896, 902-03 (1986). We have held, however, that an individual who was denied bail in an unrelated criminal proceeding as a result of the malicious prosecution had properly stated a claim under section 1983, see Bretz, 773 F.2d at 1030-31, and that an individual who was convicted as a result of the malicious prosecution had properly stated a claim under section 1983, see Cline v. Brusett, 661 F.2d 108, 112 (9th Cir. 1981).

In this case, however, no such deprivation occurred. Schoenfield does not allege that he was arrested or detained without probable cause, or that the prosecution was based on a recognized invidious classification. Nor does he allege that any evidence was obtained in violation of his fourth amendment rights, or that the defendant's conduct deprived him of a fair trial. Most important, he was acquitted. Thus, the only deprivation Schoenfield suffered is of the type that would naturally occur when someone is prosecuted for an infamous crime.

Schoenfield's defense costs are harms of the type that would be incurred in any prosecution, and are not a cognizable deprivation of property for due process purposes. The harm to his career that resulted from the stigma of being accused of child molestation is not a cognizable deprivation of liberty or property for due process purposes. See Paul v. Davis, 424 U.S. 693, 701-12 (1976). Because no deprivation of a federally protected right occurred, Schoenfield's remedy, if any, must be in state court. Cf. Baker, 443 U.S. at 146 (remedy for false imprisonment by state officials must be in state court).

The Fifth Circuit has held that an individual has a constitutional right to be free from prosecution without probable cause. See Wheeler, 734 F.2d at 258-60. The Fifth Circuit acknowledged in that opinion that its holding was inconsistent with the Ninth Circuit rule. See id. at 260 n. 14. The Ninth Circuit view is supported by Gerstein v. Pugh, 420 U.S. 103 (1975). In Gerstein the Court held that if there are significant pretrial restraints on a defendant's liberty other than the condition that the defendant appear for trial, the defendant is entitled to a probable cause determination before a judicial officer. Id. at 125. The Court said: "In holding that the prosecutor's assessment of probable cause is not sufficient alone to justify restraint of liberty pending trial, we do not imply that the accused is entitled to judicial oversight or review of the decision to prosecute." Id. at 118-19.

Although it is perhaps surprising that the federal Constitution does not protect an individual against malicious prosecution, that is clearly the law in this circuit.

THE SECTION 1985(2) CLAIM

Schoenfield seeks damages under the second clause of section 1985(2), alleging that the defendants conspired to impede the due course of justice with the intent to deprive him of the equal protection of the laws. He alleges that the defendants' actions were motivated by an animus against individuals in the class of people accused of child molestation.

An action under the second clause of section 1985(2) requires the same showing as an action under the first clause of section 1985(3): " 'some racial, or perhaps otherwise class-based, invidiously discriminatory animus behind the conspirators' action.' " Bretz, 773 F.2d at 1029 (quoting Griffin v. Breckenridge, 403 U.S. 88, 102 (1971)). " [W]e require either that the courts have designated the class in question a suspect or quasi-suspect classification requiring more exacting scrutiny or that Congress has indicated through legislation that the class required special protection." Schultz v. Sundberg, 759 F.2d 714, 718 (9th Cir. 1985) (citing DeSantis v. Pacific Telephone & Telegraph, 608 F.2d 327, 338 (9th Cir. 1979)).

In Bretz, an en banc panel of this court held that the plaintiff had failed to state a claim under section 1985 because he did not allege that the conspiracy was based on his membership in any class. In so holding, the opinion stated "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." 773 F.2d at 1028. Schoenfield seizes on the state convicts example and argues that it supports his claim that the class of people accused of child molestation is a sufficient class.

The defendants respond by citing Gibson v. United States, 781 F.2d 1334, 1341 (9th Cir. 1986), cert. denied, 479 U.S. 1054 (1987). In that case (decided after Bretz) the Ninth Circuit said the Supreme Court "explicitly restricted the statutory coverage to conspiracies motivated by racial bias." Id. (citing United Brotherhood of Carpenters and Joiners of America, Local 610 AFL-CIO v. Scott, 463 U.S. 825, 834-35 (1983)). Schoenfield correctly points out that Gibson's reading of that case may be overbroad. In United Brotherhood the Supreme Court expressly refrained from deciding whether or not any classification other than a racial one would qualify under section 1985(3). See 463 U.S. at 836-37. The Court held only that section 1985(3) was not intended to reach "conspiracies motivated by bias towards others on account of their economic views, status, or activities." Id. (emphasis in original). For this reason, Schoenfield asks this panel to reconsider Gibson.

Even if this panel were at liberty to reconsider Gibson, however, it would not be necessary in this case. Under the law that predated Bretz Schoenfield's "class" does not qualify as an invidious classification under section 1985. See Sundberg, 759 F.2d at 718 (citing DeSantis, 608 F.2d at 338). The en banc panel in Bretz did not refer to this case law, and it is clear that it did not intend to hold that "state convicts" might be a sufficient classification for a claim under clause two of section 1985(2) or clause one of section 1985(3). There was no issue in Bretz about what type of classification satisfies the requirement of an invidious classification under Griffin. A holding that "state convicts" might be such a class would expand these provisions far beyond their application in any case of which we are aware.

Since the class of people accused of child molestation is not one which has been recognized as needing special protection, Schoenfield has not alleged the kind of class-based animus needed to state a claim under clause two of section 1985. Thus, this claim was properly dismissed.

ATTORNEY'S FEES

The defendants have requested attorney's fees. A defendant in a civil rights action should be awarded fees " 'not routinely, not simply because he succeeds, but only where the action brought is found to be unreasonable, frivolous, meritless or vexatious.' " Mayer v. Wedgewood Neighborhood Coalition, 707 F.2d 1020, 1021 (9th Cir. 1983) (quoting Christiansburg Garmet Co. v. EEOC, 434 U.S. 412, 421 (1978)). Although Schoenfield's claim is foreclosed by Ninth Circuit law, it is not frivolous.

The theory that an individual is entitled to be free from prosecution without probable cause has been accepted by the Fifth Circuit. The Supreme Court or an en banc panel of the Ninth Circuit could conceivably agree with Schoenfield's claim. Thus, the defendants are not entitled to an award of attorney's fees in this case.

CONCLUSION

We AFFIRM the dismissal of the federal claims. The judgment should reflect that only the federal claims are dismissed with prejudice. The state law claims were dismissed because of the dismissal of the federal claims. The trial court erred in dismissing the state law claims with prejudice. We REMAND for an appropriate amendment of the judgment.