Unpublished Disposition, 899 F.2d 18 (9th Cir. 1989)

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US Court of Appeals for the Ninth Circuit - 899 F.2d 18 (9th Cir. 1989)

Sammy HURST, Plaintiff-Appellant,v.KING COUNTY, WASHINGTON; Bernard J. Mullen; the HousingAuthority of the County of King; Jim Wiley;Rayford Hodo; Nadine Speakes; JamesDione, Defendants-Appellees.

No. 89-35033.

United States Court of Appeals, Ninth Circuit.

Submitted March 9, 1990.* Decided March 29, 1990.

Before JAMES R. BROWNING, ALARCON and RYMER, Circuit Judges.


MEMORANDUM** 

Plaintiff-appellant Sammy Hurst appeals pro se the district court's order granting defendants' motions for summary judgment in his action brought under various civil rights statutes against King County, County police officer William Carrabba, County mental health officers Jane McGuire and Irma Hill, the King County Housing Authority, housing officials Jim Wiley, Rayford Hodo, Nadine Speakes, and James Dione, his former neighbor Lois Chenowith, and Chenowith's doctor, Dr. Bernard Mullen. On appeal, Hurst contends that the district court erred in determining that Hurst was collaterally estopped from relitigating the issue of whether the defendants conspired to unlawfully evict him from low-income housing because Hurst litigated these issues in earlier state court unlawful detainer proceedings. Hurst also argues that the court erred in determining that affidavits presented to the County mental health officers were absolutely privileged, that the County police and mental health officials enjoy qualified immunity from suit, and that there was no evidence to connect defendant Mullen with the alleged conspiracy. We affirm.

BACKGROUND

Appellant Sammy Hurst, his daughter, and her two children, are former tenants of Park Lake Homes, a low-income housing project owned and operated by defendant King County Housing Authority, in Seattle, Washington. The Hurst family occupied an apartment adjacent to defendant Chenowith. Based upon alleged violations of the lease, the King County Housing Authority commenced unlawful detainer proceedings in order to evict Hurst and his family. The case was heard by Court Commissioner Stephen Gaddis, who entered an order directing immediate issuance of a writ of restitution commanding eviction. Upon Hurst's request, the Commissioner's ruling was reviewed by a full trial in superior court, and affirmed. The superior court order was appealed to the state court of appeals, which also affirmed. A writ of restitution was then issued.

Due to several reports of bizarre behavior by Sammy Hurst, the Housing Authority asked King County mental health professionals to evaluate Hurst before undertaking execution of the writ. Officers of the County requested and obtained affidavits from defendants Chenowith and Speakes. Lois Chenowith, Hurst's elderly neighbor, stated that Hurst often accused her of trying to send gas into his apartment, pounded on their shared walls, and looked into her windows, causing her to fear for her safety. Speakes, an administrative assistant at Park Lake, described some of Hurst's unusual behavior, such as complaining that people were trying to gas him and allegedly removing the furnace in his apartment. Pursuant to the procedures authorized under Wash.Rev.Code Sec. 71.05.150, Hurst was then detained for evaluation by County designated mental health professionals. Following evaluation, Hurst was released. Shortly thereafter the writ of restitution was executed and Hurst and his family evicted.

On April 22, 1987, Hurst, his daughter, Paulette Hurst, and her two children, Lamar and Durell Hurst, filed a complaint for damages in the United States District Court. The plaintiffs alleged that the defendants had conspired to deny them the right to live in low-income, federally subsidized housing and to have Sammy Hurst committed for mental observation.

By order of October 3, 1988, the district court granted defendant Mullen's summary judgment motion on the ground that Hurst had failed to allege specific facts which would support a claim of conspiracy against Mullen. The district court subsequently adopted the Report and Recommendation of the United States Magistrate, and granted summary judgment dismissing with prejudice all of Hurst's claims against the remaining defendants. The court ruled that as a matter of law the state court adjudication in the unlawful detainer proceeding precluded Hurst's claims that he was deprived of low-income housing. Plaintiffs' claims against defendants Chenowith, King County, Carrabba, McGuire, and Hill were dismissed on December 5, 1988, and the claims against the remaining defendants King County Housing Authority, Hodo, Wiley, Speaks, and Dione were similarly dismissed on December 16, 1988.

Hurst filed a notice of appeal from the order dismissing Dr. Mullen on October 31, 1988, as appeal no. 88-4337. An amended notice of appeal consolidating that appeal with the appeals of the orders dismissing the other defendants was filed on December 29, 1988, as appeal no. 89-35033. On March 10, 1989, a Ninth Circuit panel dismissed appeal no. 88-4337 for lack of jurisdiction, dismissed appeal no. 88-4467 as duplicative of appeal no. 89-35033, and dismissed appeal number 89-35033 as to all plaintiffs, except Sammy Hurst, because only Sammy Hurst had signed the notice of appeal. See McKinney v. De Bord, 507 F.2d 501, 503 (9th Cir. 1974) (party appearing pro se cannot prosecute appeal if he or she has not signed notice of appeal).

STANDARD OF REVIEW

We review the district court's grant of summary judgment de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989). Our review is governed by the same standard used by the district court under Fed. R. Civ. P. 56(c). Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986). We must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Tzung v. State Farm Fire & Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir. 1989); Judie v. Hamilton, 872 F.2d 919, 920 (9th Cir. 1989). We may affirm a correct result on an alternate basis supported by the record. KOLA, Inc. v. United States, 882 F.2d 361, 363 (9th Cir. 1989).

DISCUSSION

The complaint alleged in a conclusory manner that the named defendants violated the plaintiffs' rights under the first, fourth, seventh, thirteenth, and fourteenth amendments, and sought damages pursuant to 42 U.S.C. § 1983. On appeal, Hurst, who is proceeding pro se, argues in a conclusory manner that the district court erred in granting summary judgment for all defendants.1  All of Hurst's claims ultimately derive from his contentions that he was unlawfully evicted from Park Lake Homes and that he was unlawfully detained for mental examination.

A. Deprivation of Right to Low-Income Housing

Hurst first argues that the defendants conspired to unlawfully deprive him of his right to low-income housing. However, as the district court found, the lawfulness of the denial of low-income housing was the central issue in the Washington state court unlawful detainer proceedings and was fully litigated in that forum. Hurst is therefore precluded from relitigating that issue in this action. See Robi v. Five Platters, Inc., 838 F.2d 318, 322 (9th Cir. 1988) (federal court must apply res judicata rules of particular state to judgments issued by that state); Shoemaker v. City of Bremerton, 109 Wash. 2d 504, 745 P.2d 858, 860-61 (1987) (en banc) (setting forth standards for issue and claim preclusion under Washington law); Rains v. State, 100 Wash. 2d 660, 674 P.2d 165, 168-70 (1983) (en banc) (same).2  Because the only allegations in the complaint and on appeal concerning defendants Housing Authority of King County, Jim Wiley, Rayford Hodo, and James Dione involve their alleged conspiracy to unlawfully deprive Hurst of low-income housing, the district court properly granted summary judgment for those defendants.

B. Defendants King County, Carrabba, McGuire, and Hill

In his complaint, Hurst alleged that defendants King County, Carabba, McGuire, and Hill:3  (1) conspired to unlawfully deny Hurst and his family the right to live in low-income housing, and (2) illegally detained Hurst for mental observation. We conclude that the district court did not err in granting summary judgment as to these defendants.

As discussed above, Hurst was precluded from relitigating his claims regarding denial of low-income housing. The mental health examination and detention of Hurst was authorized under Wash.Rev.Code Sec. 71.05.150(2), which permits county designated mental health professionals to place an individual under seventy-two hour emergency detention following proper investigation. " [G]overnment officials performing discretionary functions generally are shielded from liability for civil damages insofar 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, 102 S. Ct. 2727, 73 L. Ed. 2d 396 (1982). We have not found any statutory or decisional law to support the contention that a reasonable person would know that the investigation, detention, or examination of Hurst violated a clearly established right.4  We therefore conclude that Carrabba, McGuire, and Hill enjoy qualified immunity for their actions under Sec. 71.05.150(2) in this case. See Anderson v. Creighton, 483 U.S. 635, 638-41, 107 S. Ct. 3034, 97 L. Ed. 2d 523 (1987); Harlow, 457 U.S. at 818-19.

Similarly, the municipal defendant, King County, may not be sued under 42 U.S.C. § 1983 in this case. " [A] local government may not be sued under Sec. 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom ... inflicts the injury that the government as an entity is responsible under Sec. 1983." Monell v. New York Dept. of Social Servs., 436 U.S. 658, 694, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978). Hurst only alleges that King County is liable for the actions of its employees in detaining Hurst; he does not allege that a municipal policy or custom inflicted or caused a constitutional injury. See id. at 691-92. Therefore, the district court properly granted summary judgment in favor of King County.

In his complaint, Hurst alleged that defendants Chenowith and Speakes "entered into a conspiracy with Jane McGuire and Irma J. Hill with their false and fraudulent utterances about the plaintiff, Sammy Hurst, that caused him to be committed for mental observation at the Highline Evaluation and Treatment Facility." The district court granted summary judgment for the defendants on the ground that they enjoyed absolute immunity from a civil suit for damages based upon their testimony in the detention proceedings authorized under Wash.Rev.Code Sec. 71.05.150, citing Briscoe v. LaHue, 460 U.S. 325, 103 S. Ct. 1108, 75 L. Ed. 2d 96 (1983). We affirm the grant of summary judgment on alternate grounds. See KOLA, Inc. v. United States, 882 F.2d 361, 363 (9th Cir. 1989).

Although a conspiracy may be inferred from conduct and need not be proved by evidence of an express agreement, a plaintiff must point to some facts probative of a conspiracy to survive summary judgment; the mere fact that a conspiracy is alleged is insufficient. See Hewitt v. Grabicki, 794 F.2d 1373, 1382 (9th Cir. 1986); Ward v. EEOC, 719 F.2d 311, 314 (9th Cir. 1983), cert. denied, 466 U.S. 953 (1984); Fonda v. Gray 707 F.2d 435, 438 (9th Cir. 1983); Hewitt v. Grabicki, 596 F. Supp. 297, 305 (E.D. Wash. 1984), aff'd, 794 F.2d 1373 (9th Cir. 1986). In moving for summary judgment, both defendants pointed to the absence of any facts probative of a conspiracy beyond mere conclusory allegations in Hurst's pleadings and affidavits. Hurst failed to point to any specific facts from which a conspiracy involving these defendants could be inferred. Therefore, summary judgment was appropriate. See T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630-32 (9th Cir. 1987) (nonmovant may not rely on mere allegations in pleadings, but must set forth specific facts revealing that there is genuine issue for trial).5 

The complaint alleged that Dr. Mullen, Chenowith's physician, conspired with codefendants Chenowith, Speakes, McGuire, and Hill to have Sammy Hurst detained for mental observation. The district court granted Mullen's motion for summary judgment. To survive a motion for summary judgment, a plaintiff alleging a conspiracy must present evidence that tends to exclude the possibility that the conspirators acted independently. Dimidowich v. Bell & Howell, 803 F.2d 1473, 1479 (9th Cir. 1986), modified, 810 F.2d 1517 (9th Cir. 1987). The only evidence before the district court which connected Mullen with the actions complained of was his letter of November 12, 1984 to the King County Housing Authority, which Hurst alleged contained a false statement about him. As the magistrate noted, there is no evidence to suggest that Mullen wrote the letter as part of a conspiracy. Indeed, Mullen stated in an affidavit in support of his summary judgment motion that "I have had no discussion with any other defendants of this litigation nor do I know what actions were taken with regard to Mr. Hurst." Therefore, the district court did not err in granting summary judgment in favor of Mullen.6 

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 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 9th Cir.R. 36-3

 1

Because Hurst is proceeding pro se, we construe his papers liberally and afford him any benefit of the doubt. See Bretz v. Kelman, 773 F.2d 1026, 1027 n. 1 (9th Cir. 1985) (en banc)

 2

The doctrines of claim and issue preclusion apply in actions under 42 U.S.C. § 1983. See Allen v. McCurry, 449 U.S. 90, 101 S. Ct. 411, 66 L. Ed. 2d 308 (1980); Rains, 674 P.2d at 170

 3

Officer Carrabba oversaw the eviction of Hurst from Park Lake Homes on April 5, 1985. McGuire and Hill were King County designated mental health professionals who interviewed Hurst at his apartment on April 5, 1985, and who determined that there was sufficient cause to detain Hurst for mental health evaluation at the Highline Evaluation and Treatment Facility

 4

Indeed, Washington law confers qualified immunity from civil and criminal liability "for performing ... duties pursuant to this chapter with regard to the decision of whether to admit, release, or detain a person for evaluation and treatment: Provided, That such duties were performed in good faith and without gross negligence." See Wash.Rev.Code Ann. Sec. 71.05.120 (1985). This immunity would extend to defendant King County as well. See Frost v. City of Walla Walla, 106 Wash. 2d 669, 724 P.2d 1017, 1020 (1986) (en banc) (overruling in part Spencer v. King County, 39 Wash. App. 201, 692 P.2d 874 (1984) (immunity under Wash.Rev.Code Sec. 71.05.120 does not extend to County)); see also Wash.Rev.Code Ann. Sec. 71.05.120(1) (Supp.1989) (explicitly extending immunity to the state and units of local government). There is no evidence that the defendants acted in bad faith or with gross negligence

 5

Similarly (and particularly with regard to defendant Speakes), we note that Hurst has failed to produce specific facts to demonstrate that the statements in the affidavits were false or fraudulent. His pleadings and affidavits in opposition to the summary judgment motions contain mostly conclusory allegations; the specific facts alleged do not directly contradict the statements in the defendants' affidavits

 6

Mullen requests an award of costs and attorney's fees under Fed. R. App. P. 38 ("If a court of appeals shall determine that an appeal is frivolous, it may award just damages and single or double costs to the appellee."). We consider an appeal frivolous when an appellant's arguments of error are "wholly without merit." Northwest Acceptance Corp. v. Lynnwood Equip., Inc., 841 F.2d 918, 927 (9th Cir. 1988) (quoting Wellman v. International Union of Operating Eng'rs, 812 F.2d 1204, 1206 (9th Cir. 1987), and Taylor v. Sentry Life Ins. Co., 729 F.2d 652, 656 (9th Cir. 1984) (per curiam)). We do not consider all of Hurst's arguments wholly without merit, and therefore decline to award costs