Unpublished Disposition, 884 F.2d 582 (9th Cir. 1988)

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US Court of Appeals for the Ninth Circuit - 884 F.2d 582 (9th Cir. 1988)

Terry HARDAGE, Plaintiff-Appellant,v.George JACOBS; Byron Beaulieu; William L. Lasswell; EdwinC. Bradberry; Thomas W. Matthews; Roland Ariola; LynnEnyart; Rita Frost; Laton Frost; Lantry Brown; Doe 1,Sacramento Police Department; and Doe 2, Sacramento PoliceDepartment, Defendants-Appellees.

No. 88-3659.

United States Court of Appeals, Ninth Circuit.

Submitted June 27, 1989.* Decided Aug. 25, 1989.

Before ALARCON, BRUNETTI and O'SCANNLAIN, Circuit Judges.


Terry Hardage appeals pro se from the dismissal and the summary judgment against him of his claims against various police officers, county employees, and special agents of the Federal Bureau of Investigation (FBI) under 42 U.S.C. §§ 1983, 1985(3), 1986, and 1988.1 

Hardage is in the Oregon State Prison serving a sentence for custodial interference in the first degree. The gist of Hardage's complaint is that the defendants conspired to wrongfully arrest him for interstate flight to avoid prosecution (18 U.S.C. § 1073) and the defendants conspired to back-date the district attorney's information charging him with custodial interference in the second degree.


* Notice of Appeal

Hardage's notice of appeal was filed on February 10, 1988, thirty-two days after the entry of the district court's final order on January 8, 1988. The appellees contend that this court does not have jurisdiction as the notice of appeal was not filed within thirty days of the entry of the district court's order and hence was not timely.

Fed. R. App. P. 4(a) (1) provides that in "a civil case in which an appeal is permitted by law as of right from a district court to a court of appeals the notice of appeal ... shall be filed with the clerk of the district court within 30 days after the date of entry of the judgment or order appealed from; but if the United States or an officer or agency thereof is a party, the notice of appeal may be filed by any party within 60 days after such entry." The timely filing of the notice of appeal is mandatory and jurisdictional. Wallace v. Chappell, 637 F.2d 1345, 1346 (9th Cir. 1981) (en banc).

"Whenever the alleged grievance arises out of a government activity, the 60-day filing period of Rule 4(a) applies if: (a) the defendant officers were acting under color of office, or (b) the defendant officers were acting under color of law or lawful authority, or (c) any party in the case is represented by a government attorney." Id. at 1348 (emphasis in original) (footnotes omitted).

The 60-day rule applies here because a party in this case is represented by a government attorney and defendant officers were allegedly acting under color of law and office.


Does 1 and 2, Sacramento Police Officers (Individual and Official Capacity)

Hardage alleges that Does 1 and 2 used excessive force in arresting him and causing him to sustain injuries to his left arm, left leg, left forehead and back. Does 1 and 2 filed a motion to dismiss for lack of personal jurisdiction which was granted by the district court judge on February 28, 1986.2 

Whether the district court has personal jurisdiction is a question of law reviewed de novo. Federal Deposit Ins. Corp. v. British-American Ins. Co., Ltd., 828 F.2d 1439, 1441 (9th Cir. 1987). The party seeking to invoke the court's jurisdiction bears the burden of establishing that jurisdiction exists. Scott v. Breeland, 792 F.2d 925, 927 (9th Cir. 1986).

This court uses a two-step test in determining whether a state has personal jurisdiction. We first apply the forum state's long-arm statute and then consider whether application of that statute is consistent with federal due process. Oregon's long-arm statute, Rule 4, Oregon Rules of Civil Procedure, has been interpreted to confer jurisdiction "to the outer limits" of due process. Thus, [this court] may proceed directly to determine whether application of the statute is consistent with due process. (Citations and footnotes omitted).

Raffaele v. Compagnie Generale Maritime, 707 F.2d 395, 396 (9th Cir. 1983) (Raffaele).

Personal jurisdiction over Does 1 and 2 meets the requirements of due process only if they had certain "minimum contacts" with Oregon such that the "maintenance of the suit does not offend traditional notions of fair play and substantial justice." Internat. Shoe Co. v. Washington, 326 U.S. 310, 316 (1965) (Internat. Shoe).

Hardage has not alleged and Does 1 and 2 do not have significant minimum contacts with Oregon as to justify jurisdiction over them. Does 1 and 2 are residents of California, employed as police officers for the City of Sacramento, California, and arrested Hardage in Sacramento. Moreover, it is not fair to assert jurisdiction over Does 1 and 2 for the limited purpose of this action: Does 1 and 2 did not perform acts by which they purposely availed themselves of the benefits and protections of Oregon's laws; Hardage's claims do not arise out of or result from activities of Does 1 and 2's which are Oregon-related; and the exercise of jurisdiction is not reasonable. Raffaele, 707 F.2d at 397. The district court correctly dismissed Hardage's claims against Does 1 and 2 for lack of personal jurisdiction.


Federal Defendants: Common Law Torts (Official Capacity)

The district court correctly determined that it lacked subject matter jurisdiction over Hardage's common law tort claims against the federal agents in their official capacity for false arrest, denial of medical treatment, and conversion of property based upon sovereign immunity. A claim against a federal officer in his official capacity is essentially a suit against the government. The United States is immune from suit unless it expressly waives immunity and consents to be sued. Under certain circumstances, the Federal Tort Claims Act (the Act) may provide a limited waiver of sovereign immunity. The appellant failed first to present the claim to the appropriate federal agency as required by 28 U.S.C. § 2675(a); and the Federal Tort Claims Act's waiver of sovereign immunity is not available to the appellant. Holloman v. Watt, 708 F.2d 1399, 1402 (9th Cir. 1983), cert. denied, 466 U.S. 958 (1984) (Holloman).


Federal Defendants: Common Law Tort (Individual Capacity)

In Westfall v. Erwin, the Supreme Court held that "absolute immunity from state-law tort actions should be available only when the conduct of federal officials is within the scope of their official duties and the conduct is discretionary in nature." 108 S. Ct. 580, 584 (1988) (emphasis in original). "Officials who seek exemption from personal liability have the burden of showing that such an exemption is justified." Forrester v. White, 108 S. Ct. 538, 542 (1988).

"In order to be within the scope of official duties, ' [i]t is only necessary that the action bear some reasonable relation to and connection with the duties and responsibilities of the official.' " Little v. City of Seattle, 863 F.2d 681, 683 (9th Cir. 1988) (internal citations omitted). The torts alleged by Hardage arise from the federal special agents' investigation and arrest of Hardage for interstate flight. As the district court held, the agents' investigation and arrest of Hardage pursuant to a warrant were within the scope of the agents' official duties because it bore a reasonable relation to their obligations as FBI special agents.

"A discretionary function is required as the second element of the test because ' [i]t is only when officials exercise decision-making discretion that potential liability may shackle the fearless, vigorous, and effective administration of policies of the government.' " Little, 863 F.2d at 683. Similar to Little, the district court did not address the discretionary function element of the test. In Little, this court stated that the court of appeals may decide the discretion issue even though it was not addressed below. Little, 863 F.2d at 683.

In this case, the special agents' duties fit within those discretionary functions entitled to absolute immunity and the district court was correct in finding that no triable issue of fact exists as to the special agents' liability for state law tort claims.


Federal Defendants: Constitutional Violation (Official Capacity)

Appellant claims that the federal agents illegally seized him and searched his vehicle.3  A claim against a federal officer in his official capacity is essentially against the United States. The United States has not waived its sovereign immunity and appellant's action may not be maintained under the Act because it was not alleged or shown that he has filed an administrative claim prior to filing this action as required by the Act. Holloman, 708 F.2d at 1402 (citing 28 U.S.C. § 2675(a)). A Bivens action may not be brought against a federal official acting in his official capacity. Id.


Federal Defendants: Constitutional Violation (Individual Capacity)

The Bivens doctrine allows suit in certain circumstances against federal officials. Under Bivens a plaintiff may sue federal officers in their individual, rather than official capacity. Bivens v. Six Unknown Named Agents, 403 U.S. 388, 397 (1971); Holloman, 705 F.2d at 1401-02. Appellant's claim that the FBI agents illegally seized him and illegally searched his vehicle is a Bivens-type claim. Additionally, Hardage asserts Sec. 1983 claims against the federal agents, alleging they acted in concert with the state officers in violating his Fourth Amendment rights.4 

Matthews and Ariola

The district court ruled that it did not have personal jurisdiction over FBI Special Agents Matthews and Ariola and granted summary judgment in favor of the agents. Matthews and Ariola are both California residents. Hardage has not alleged and Agents Matthews and Ariola do not have significant minimum contacts with Oregon to justify jurisdiction over them. Agents Matthews and Ariola did not perform any acts by which they purposefully avail themselves of the benefits and protections of Oregon's laws; Hardage's claim does not arise out of or result from the agents' Oregon-related activities; and the exercise of jurisdiction is not reasonable. Raffaele, 707 F.2d at 397. The lack of minimum contacts is fatal to Hardage's section 1983 actions and Bivens actions against them. See Internat. Shoe, 326 U.S. at 316.


To defeat summary judgment, a nonmoving party must demonstrate a genuine issue of material fact through, among other means, depositions, affidavits and answers to interrogatories. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Hardage's complaint and supporting affidavits allege that FBI Special Agent Enyart participated in a conspiracy to deprive him of his civil rights. Agent Enyart's affidavit in support of her motion for summary judgment states that her only contact with Hardage involved a telephone call on April 4, 1984. Hardage called the FBI to complain about his arrest in Sacramento. Agent Enyart had no knowledge or involvement with the decisions relating to the arrest; her only contact with Hardage came after the arrest.

The burden was on Hardage, the nonmoving party to "designate specific facts showing that there is a genuine issue of trial." Id. Hardage did not allege any facts to demonstrate that Agent Enyart's conduct deprived Hardage of a constitutional right and did not allege any specific facts indicating the existence of a conspiracy to violate his civil rights. Hardage failed to meet his burden and the district court properly granted summary judgment for Agent Enyart.


Hardage asserts both a Section 1983 action and a Bivens claim against Agent Bradberry. The constitutionally asserted basis for the suit is that Agent Bradberry conspired with state officials to violate his clearly established Fourth Amendment rights. "Federal officials may raise a defense of qualified immunity to a Bivens action," F.E. Trotter, Inc. v. Watkins, 869 F.2d 1312, 1314 (9th Cir. 1989), and to a Section 1983 action. "Government officials performing discretionary functions enjoy qualified immunity from civil damages so long as their conduct does not violate 'clearly established statutory or constitutional rights of which a reasonable person would have known.' Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)." Id. "The very action in question need not previously have been held unlawful, but the unlawfulness must be apparent in light of preexisting law." Id. at 1315; Neu v. Corcoran, 869 F.2d 662, 665 (2nd Cir. 1989).

In Malley v. Briggs, the Supreme Court held that officers applying for arrest warrants will lose the shield of immunity " [o]nly where the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable." 475 U.S. 335, 344-45 (1986). The objective inquiry is "whether a reasonably well-trained officer ... would have known his affidavit failed to establish probable cause and that he should not have applied for a warrant." Id. at 345.

Hardage contends that Agent Bradberry caused him to be unconstitutionally arrested by presenting to the Magistrate an affidavit and application for an arrest that lacked probable cause. The affidavit submitted in support of the arrest warrant indicates that the Oregon officials did not file the custodial interference charges until after Hardage had left Oregon; therefore, Hardage contends that a reasonable person in Bradberry's position would have known that Hardage did not leave Oregon to avoid prosecution for custodial interference.

Contrary to Hardage's contention, the fact that a state information or arrest warrant against a suspect is formally filed after a suspect leaves the state does not conclusively establish that the suspect was not involved in interstate flight to avoid prosecution. In Reis v. United States Marshal, 192 F. Supp. 79, 81 (E.D. Pa. 1961), the district court held that an indictment returned after the accused left the state is not, by itself, sufficient to show that the accused left the state with the intent to avoid prosecution. However, the court explicitly noted that "we do not here hold that an indictment for a crime returned after a person leaves a state and travels in interstate commerce is not competent evidence from which the inference would be drawn that the person left with the intent to avoid prosecution." Id. (emphasis in original).

In this case, Bradberry signed the complaint which stated that Hardage left Oregon on or about April 2, 1984, and traveled to California with the purpose of avoiding prosecution in Douglas County, Oregon for the crime of custodial interference (18 U.S.C. § 1073). According to his affidavit,5  Bradberry was advised by the Chief of Police that an arrest warrant was issued on April 11, 1984, by the Douglas County District Court charging Hardage with custodial interference. Bradberry's affidavit also indicates that Hardage contacted his bank in Oregon and requested that money be sent to him in Redding, California. Further, Agent Bradberry was advised by another special agent that Hardage did receive the money sent by the Oregon bank to Redding. Bradberry's investigation revealed that in March of 1984 Eric Frost's parents instructed Hardage to stay away from their son. On the day following Eric's disappearance, the Oregon State Police searched Hardage's pick-up truck and did not find Eric. In talking with Hardage, the state police learned that Hardage was aware that Eric had been chained to his bed over the weekend and summarized that Eric and Hardage had been in contact.

We conclude that the facts and circumstances within the arresting officer's knowledge and of which he had reasonably trustworthy information are sufficient to lead a prudent person to believe Hardage would be prosecuted for custodial interference and that he may have left the State of Oregon to avoid prosecution. Hardage's argument that agent Bradberry violated clearly established law by applying for and enforcing an arrest warrant without probable cause therefore fails; the district court correctly entered summary judgment in favor of Agent Bradberry.


Oregon Defendants: Jacobs, Beaulieu, Lasswell, Zacher, Nolte, Bates, Brown, Frosts

The Oregon defendants moved to dismiss the complaint for failure to state a section 1983 claim. On March 28, 1986, the federal Magistrate Hogan issued Findings and Recommendations (F & R), recommending that the defendants' motion to dismiss be granted. Before the F & R were filed, on March 5, 1986, Hardage filed a motion for leave to amend his complaint. In the amended complaint, Hardage added Magistrate Hogan as a defendant. Magistrate Hogan granted the motion for leave to amend the complaint on April 10, 1986. Hardage also filed a motion to strike Magistrate Hogan's F & R and to disqualify Hogan from this case.

On May 30, 1986, the district court reviewed the Magistrate's F & R de novo and agreed that Hardage's allegations fail to state any actionable claim against the Oregon defendants. Accordingly, the district court denied Hardage's motion to strike the F & R. The district court ruled that Hardage failed to allege any facts which "suggests that Magistrate Hogan has or will demonstrate bias against [Hardage], or prejudice resulting from an extrajudicial science" and denied Hardage's motion to disqualify Magistrate Hogan.

This court reviews dismissals for failure to state a claim de novo. West v. Greyhound Corp., 813 F.2d 951, 953 (9th Cir. 1987). In civil rights cases where a plaintiff is pro se, the court has an obligation to construe the pleading liberally. Estelle v. Gamble, 429 U.S. 97, 106 (1976). Nonetheless, this court must dismiss for failure to state a claim if it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of his claim which entitles him to relief. Id.

The gist of Hardage's allegations against the Oregon defendants is that they caused to be issued against him an illegal state arrest warrant charging custodial interference, specifically that the defendants backdated the information so that it would mislead the court in believing that Hardage enticed Eric away from his parents on March 19, 1984.6  The investigations revealed that in mid-March, during spring break, Eric was spending time with Hardage. Hardage had taken Eric to Eugene, had bought him cigarettes, and let him drive his truck. Hardage's claim that the information was falsely backdated has no merit. Accordingly, Hardage failed to allege a wrongful act for which legal relief may be granted under section 1983.

Hardage alleges conspiracy, but fails to allege specific facts indicating the existence of a conspiracy. Although this court must construe the complaint liberally, Hardage still bears the burden of alleging facts sufficient to enable a court to conclude that his complaint states a claim upon which relief may be granted. Estelle, 429 U.S. at 106-07. Vague and conclusory allegations of a conspiracy are insufficient to withstand a motion to dismiss for failure to state a cliam. Ivey v. Baord of Regents of University of Alaska, 673 F.2d 266, 268 (9th Cir. 1982); see also, McCarthy v. Mayo, 827 F.2d 1310, 1316 (9th Cir. 1987). Because the facts alleged are insufficient to show a conspiracy among the defendants to deprive Hardage of his constitutional rights, the district court did not err in its dismissal of the complaint against the alleged co-conspirators.

Finally, Hardage alleges that Jacobs and Beaulieu in concert with the parents of Eric Frost made threats to Eric to force him to say that Hardage molested him. The complaint also states that Eric refused to tell Jacobs or Beaulieu that Hardage had molested him. Thus, even if Jacobs and Beaulieu did threaten Eric, this had no impact on the arrest of Hardage for interstate flight to avoid prosecution. The district court properly dismissed the complaint as to this claim as Hardage failed to allege a constitutional violation.

Hardage alleges that Hogan "signed a warrant knowing [it] was illegal and false, based on an affidavit signed by defendant Bradberry, that didn't have sufficient facts to issue an [arrest] warrant for [Hardage] for unlawful flight to avoid prosecution." "Judges and those performing judge-like functions are absolutely immune from damage liability for acts performed in their official capacities." Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 1986) (en banc). Judges lack immunity from section 1983 claims only where they act in clear absence of all jurisdiction or performs an act not judicial in nature. Id. In the absence of any allegations by Hardage that the magistrate's ultimate actions were not judicial or beyond the scope of the court's jurisdiction, Hardage cannot overcome Magistrate Hogan's judicial immunity.



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); Circuit Rule 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Circuit Rule 36-3


The district court properly dismissed Hardage's 42 U.S.C. § 1985 claims because he failed to allege class-bound animus. Gibson v. United States, 781 F.2d 1334, 1341 (9th Cir. 1986). The district court also properly dismissed Hardage's 42 U.S.C. § 1985(2) claim because he failed to allege that the "conspiracy hampered [his] ability to present an effective case in federal court." Rutledge v. Arizona Bd. of Regents, 859 F.2d 732, 735 (9th Cir. 1988). Further, Hardage is precluded from bringing a claim under 42 U.S.C. § 1986 because he has failed to allege a claim under 42 U.S.C. § 1985. Farley v. Henderson, 875 F.2d 231, 233 n. 3 (9th Cir. 1989)


On March 5, 1986 Hardage appealed from the interlocutory order dismissing Does I and II. The Ninth Circuit dismissed the interlocutory appeal for lack of jurisdiction


In granting summary judgment for the federal special agents, the district court dismissed all claims against them. This court reviews a motion for summary judgment de novo. California Architectural Building Products, Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987), cert. denied, 108 S. Ct. 698 (1988)


Federal officers may be subject to liability under section 1983 where they act under color of state law to deprive a person of rights secured under the Constitution or laws of the United States. Kletschka v. Driver, 411 F.2d 436, 448 (2nd Cir. 1969). For the purpose of this appeal we assume Hardage has alleged sufficient facts to state a claim under section 1983 against the federal agents


Hardage alleges that Agent Bradberry's affidavit was not notarized. The complaint incorporates by reference the affidavit and was sworn before Magistrate Hogan


The district attorney's information reads: "The defendant, between March 19th and April 11, 1984, in Douglas County, Oregon did unlawfully and knowingly entice and keep Eric Frost, a twelve year old child, from his lawful custodian, Layton and Rita Frost, with intention to hold him for a protracted period of time, the defendant knew that he had no legal right to do so, contrary to Oregon law."