Unpublished Disposition, 879 F.2d 866 (9th Cir. 1989)

MEMORANDUM^* 

Joseph Trombley brought this Sec. 1983 action claiming that various state defendants deprived him of his Sixth Amendment right to effective assistance of counsel and his Fourth Amendment right to a prompt probable cause hearing after a warrantless arrest. The district court abstained under Younger v. Harris, 401 U.S. 37 (1971), from deciding Trombley's claims for damages, declaratory judgment and injunctive relief against the defendants for providing him with inadequate assistance of counsel. The district court dismissed Trombley's Fourth Amendment claim against the county, county commissioners and sheriff for failure to state a claim upon which relief could be granted. The district court also dismissed Trombley's damage claims under Sec. 1983 against his public defender, on the ground that the public defender did not act under "color of state law." Trombley's pendent state law claims were dismissed without prejudice. Trombley appeals and we reverse in part and affirm in part.

* The district court abstained under Younger on the ground that resolution of Trombley's claims as to the inadequacies of the counsel provided by the County of Cascade to indigent defendants would "unduly interfere with the functioning of the court system of the State of Montana." Excerpt of Record ("E.R.") at 22. This decision was in error. A court may abstain under Younger only if there are ongoing state judicial proceedings in which the plaintiff could raise his constitutional claims. World Famous Drinking Emporium v. City of Tempe, 820 F.2d 1079, 1082 (9th Cir. 1987). In the instant case, there are no ongoing criminal proceedings in which Trombley could raise these claims: Trombley has pleaded guilty and is currently out on parole. The fact that there may be ongoing criminal proceedings in which other defendants are represented by Cascade County's public defender system is irrelevant since Trombley is not a party to those proceedings.

Finally, while it is true that failure to exhaust state appellate remedies before seeking federal relief is grounds for Younger abstention under certain circumstances, Huffman v. Pursue Ltd., 420 U.S. 592, 608 (1975), such is not the case if the plaintiff seeks prospective relief, Wooley v. Maynard, 430 U.S. 705, 711 (1977), or relief that cannot be obtained through the state appellate process. See Gerstein v. Pugh, 420 U.S. 103, 108 n. 9 (1975). Since Trombley seeks only prospective relief and monetary damages, relief that is not obtainable in a post-conviction appeal, it was improper for the district court to abstain under Younger.¹  While we reverse the district court on this point, we express no opinion as to the merits of Trombley's claim of ineffective assistance of counsel and request for damages and injunctive and declaratory relief against the various defendants.

II

The district court also erred in dismissing Trombley's Fourth Amendment claim. The court held that Trombley had failed to state a claim against any of the named defendants because it was the presiding judge's docket--and not the action of any of the defendants--that was responsible for the long period of incarceration before Trombley received a probable cause hearing. This analysis, however, is not in keeping with our decision in Bernard v. City of Palo Alto, 699 F.2d 1023 (9th Cir. 1983). Bernard makes clear that because the county has the ultimate power to release arrestees unconstitutionally detained, the county is the proper defendant in cases challenging compliance with Gerstein. Id. at 1027. Accordingly, we reverse the dismissal of Trombley's Fourth Amendment claims against the defendants.

III

Finally, we affirm the district court's dismissal of Trombley's Sec. 1983 damage claims against Nancy Belcheff. We agree with the district court that Belcheff cannot be held to have acted under "color of state law." Polk County v. Dodson, 454 U.S. 312, 324 (1981).

The judgment of the district court is REVERSED in part and AFFIRMED in part. The case is remanded to the district court for further proceedings.