Unpublished Disposition, 928 F.2d 409 (9th Cir. 1991)

No. 90-55013.

United States Court of Appeals, Ninth Circuit.

Appeal from the United States District Court for the Central District of California, No. CV-88-3668-JGD; John G. Davies, District Judge, Presiding.

C.D. Cal.

AFFIRMED.

Before CANBY and RYMER, Circuit Judges, and WARE^* , District Judge.

MEMORANDUM^** 

The Thomases argue that the trial court erred by not instructing the jury on non-racially motivated conspiracy under 42 U.S.C. § 1983. They contend that even though the jury specifically found that the Thomases' constitutional rights had not been violated, the jury could nevertheless have found, if provided the proper instruction, that the defendants violated section 1983 by merely conspiring. This is an erroneous reading of section 1983. The Thomases cite numerous cases to support the proposition that government officers are liable under section 1983 for merely conspiring, but a thorough reading of those cases indicates that what section 1983 prohibits is a governmental conspiracy resulting in a violation of a person's constitutional rights. In Venegas v. Wagner, 704 F.2d 1144 (9th Cir. 1983), for example, we dealt with application of the statute of limitations to conspiracies to violate civil rights. We said that such a claim does not accrue "until the primary injury complained of occurs." Id. at 1146 (emphasis added). We held that the district court erred in applying the usual rule that a conspiracy claim accrues from the "last overt act of the conspirators alleged to have caused damage," id. at 1145 (emphasis added), because the conspiracy was one to deprive defendants of a fair trial. In that case, we said, the injury was the wrongful conviction and incarceration, and limitations did not run until the conviction was overturned. Id. at 1146.

Nothing in Venegas supports the Thomases' contention that a claim may be established under section 1983 for a conspiracy that results in no violation of civil rights. The entire thrust of the opinion is to the contrary. As the Supreme Court stated in dealing with the question whether negligent rather than deliberate deprivation of civil rights was actionable:

The first inquiry in any Sec. 1983 suit ... is whether plaintiff has been deprived of a right "secured by the Constitution and laws." If there has been no such deprivation, the state of mind of the defendant is wholly immaterial.

Baker v. McCollan, 443 U.S. 137, 140 (1979).

Here the Thomases' claim was that the defendants conspired to violate the Thomases' civil rights by an invalid arrest and unreasonable force accompanying it. Having heard all of the evidence, the jury returned a special verdict finding that none of the Thomases' constitutional rights had been violated. Nothing in the Thomases' proposed instruction on conspiracy could have overcome that fatal finding. Even in the unlikely event that the district court's refusal to give the instruction was error,¹  the error was harmless.

AFFIRMED.