923 F. 2d 862 - Heimbaugh v. City and County of San Francisco

MEMORANDUM**

Here we must decide whether the district court erred in dismissing an amended complaint filed by pro se plaintiff Robert A. Heimbaugh, a former San Francisco deputy sheriff, alleging several federal civil rights violations against the City and County of San Francisco and employees of the San Francisco County Sheriff's Office and City Police Department, and a state cause of action for negligent representation against Bob Boileau and Operating Engineers Local 3. The district court dismissed the amended complaint against the county and city defendants under Rule 12(b)(6), F.R.Civ.P. for failure to state a claim upon which relief may be granted, and the claim against Boileau and Operating Engineers Local 3 for lack of federal subject matter jurisdiction.

Heimbaugh argues on appeal that the district court abused its discretion in denying his claims for declaratory and injunctive relief and in awarding the defendant-appellees sanctions under Rule 11, F.R.Civ.P. He contends that the district court erred in concluding that his complaint failed to state claims against the city and county defendants for (a) retaliation and sexual harassment under 42 U.S.C. Sec. 1983, (b) denial of procedural due process by means of an unfair hearing, (c) unlawful search and seizure, (d) use of excessive force during arrest and (e) conspiracy and fraud. He also argues that the district court improperly dismissed a state cause of action for negligent representation against Boileau and Operating Engineers Local 3.

For essentially the reasons stated in the district court's Memorandum and Order dated June 29, 1989, we reject Heimbaugh's arguments and affirm the order of dismissal. We also affirm the district court's award of sanctions under Rule 11.

The district court had jurisdiction over the claims against the city and county defendants under 28 U.S.C. Secs. 1331 and 1343. Jurisdiction as to Boileau and Operating Engineers Local 3 was premised on pendent party jurisdiction. Jurisdiction on appeal is proper based on 28 U.S.C. Sec. 1291. The appeal was timely filed under Rule 4(a), F.R.A.P.

In June 1982, the City and County of San Francisco hired Heimbaugh as a property keeper. In October 1982, Heimbaugh was assigned to appellee Frank Cook, a captain with the San Francisco Sheriff's Office, who charged Heimbaugh with misconduct on October 12, 1982, and ordered him not to perform his official duties. On November 8, 1982, Heimbaugh met with Cook's supervisor, John Courtney, and appellee Sheriff Michael Hennessey concerning Cook's charges. During this meeting, Heimbaugh purportedly made oral complaints to Courtney and Hennessey against Cook for personal harassment and for sexual misconduct involving female personnel.

In July 1985, after Heimbaugh had become a deputy sheriff, the Sheriff's Office disciplined him following a poor performance evaluation by appellee Larry Littlejohn, although Heimbaugh alleges that the disciplinary action also was taken because of his accusations concerning Cook. At or about this time, Heimbaugh complained to appellees William Davis and Sheriff Hennessey about sexual advances made to him by Littlejohn. The Sheriff's Office subsequently investigated Heimbaugh's charges against Littlejohn and found them to be without merit. Following the investigation, Davis reprimanded Heimbaugh, and at the close of the July 1985 disciplinary hearing, Heimbaugh was forced to take a one-year personal leave of absence.

In November 1986, the Sheriff's Office once again disciplined Heimbaugh--this time for unauthorized possession of a weapon while on leave from the Office. Two months later, on January 6, 1987, following a "911" call placed by Heimbaugh's cohabitant, San Francisco police officers arrested Heimbaugh for brandishing a weapon, felony domestic violence, sodomy and possession of drug paraphernalia. Heimbaugh claims that the police officers assaulted and battered him during the arrest, and that they illegally searched his apartment and car without a warrant.

On April 16, 1987, Heimbaugh filed an administrative claim against the City and County of San Francisco, Sheriff Hennessey and various other defendants. On May 26, 1987, a civil service hearing was held to terminate Heimbaugh as a deputy sheriff based on his off-duty conduct on January 6, 1987. At the hearing, Heimbaugh's cohabitant testified contrary to her report to police responding to her call. Changing her story, she now said that she had assaulted Heimbaugh on January 6, 1987, and that she was the owner of the drug paraphernalia found at the scene. Sheriff's counsel Betty Bortin informed the complainant on cross-examination that she could be prosecuted for filing a false police report. Following his cohabitant's testimony, Heimbaugh resigned from his post and dismissed his pending administrative complaint. He claims, however, that he rescinded his resignation on June 23, 1987.

On November 4, 1987, Heimbaugh filed a complaint against the appellees in federal district court. On February 22, 1988, he filed an amended complaint seeking a declaratory judgment that would rescind his resignation and declare that "the policies, practices and acts ... complained of are illegal and unconstitutional." He also sought an injunction to reinstate him as a deputy sheriff in the San Francisco Sheriff's Office. The amended complaint further charged the city and county defendants with civil rights violations, unlawful search and seizure, assault and battery, conspiracy and fraud, and alleged a claim for negligent representation against appellees Operating Engineers Local 3 and Deputy Sheriff's Association agent Robert Boileau.

On June 19, 1989, the district court dismissed the amended complaint against the city and county defendants under Rule 12(b)(6), F.R.Civ.P. for failure to state a claim upon which relief may be granted, and the claim against Boileau and Operating Engineers Local 3 for lack of federal subject matter jurisdiction. Finding the complaint "entirely unwarranted by existing law or a good faith argument for modification or extension of existing law," the district court sanctioned Heimbaugh under Rule 11, ordering him to pay the defendants their reasonable expenses in bringing their motions to dismiss.

Heimbaugh appeals the district court's dismissal of his complaint and the award of sanctions.

A dismissal for failure to state a claim pursuant to Rule 12(b)(6), F.R.Civ.P. is a ruling on a question of law and thus is reviewed de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir.1989), cert. denied, 110 S.Ct. 3217 (1990). Review may be limited to the contents of the complaint, Fort Vancouver Plywood Co. v. United States, 747 F.2d 547, 552 (9th Cir.1984), but when matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment. Id. The district court here "considered the written submissions of the parties." E.R. at 98. A complaint should not be dismissed under the rule unless "it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Gibson v. United States, 781 F.2d 1334, 1337 (9th Cir.1986), cert. denied, 479 U.S. 1054 (1987) (quotations omitted). All allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. Western Reserve Oil & Gas Co. v. New, 765 F.2d 1428, 1430 (9th Cir.1985), cert. denied, 474 U.S. 1056 (1986).

The existence of subject matter jurisdiction is a question of law reviewed de novo. Kruso, 872 F.2d at 1421.

In appellate review of orders imposing sanctions under Rule 11, facts relied upon by the district court to establish a violation of the rule are reviewed under the clearly erroneous standard, the legal conclusion that the facts constitute a violation of the rule is reviewed de novo, and the appropriateness of the sanction imposed is reviewed for an abuse of discretion. King v. Idaho Funeral Serv. Ass'n, 862 F.2d 744, 747 (9th Cir.1988).

Heimbaugh first argues that the district court erred in dismissing his request for an injunction prohibiting Sheriff Hennessey and his agents "from harassing, conspiring to harass or disciplining plaintiff on the acts above complained of or other acts proximately caused by their own misconduct." Amended Complaint at 10; E.R. at 49. The district court dismissed Heimbaugh's request because no federal question or clear constitutional violation appeared on the face of the amended complaint, and the requested injunctive remedy did not inform the defendants which acts Heimbaugh sought to prohibit.

We agree with the district court's conclusion. Heimbaugh's amended complaint based jurisdiction on the existence of a federal question under 28 U.S.C. Sec. 1331 and on alleged civil rights violations under 28 U.S.C. Sec. 1343. Although courts have broad equitable powers to remedy constitutional violations, the scope of injunctive relief must be tailored to fit the nature and extent of the constitutional violation established. Califano v. Yamasaki, 442 U.S. 682, 702 (1979). Furthermore, when jurisdiction is premised on a federal question, a substantial federal question must be pleaded with specificity. See Mobil Oil Corp. v. City of Long Beach, 772 F.2d 534, 538-39 (9th Cir.1985). The district court correctly determined that Heimbaugh's request for injunctive relief fails to state such a federal question or clear constitutional violation.

The amended complaint also fails to give the defendants notice of the acts Heimbaugh seeks to prohibit. Rule 65(d), F.R.Civ.P. requires that "[e]very order granting an injunction shall set forth the reasons for its issuance; shall be specific in terms; shall describe in reasonable detail ... the act or acts sought to be restrained...." Because the amended complaint does not state specifically the acts Heimbaugh sought to enjoin, the district court's denial of injunctive relief was not improper.

The district court also denied Heimbaugh's request for a declaratory judgment that would rescind his resignation and declare that "the policies, practices and acts ... complained of are illegal and unconstitutional." Amended Complaint at 9; E.R. at 48. Although Heimbaugh did not challenge this ruling in his opening brief, in his reply brief he argues that he did not waive his request for declaratory relief on appeal and that the district court's dismissal of his claim constitutes reversible error. See Reply Brief at 1-4.

Because the district court's dismissal was not improper, we need not decide whether Heimbaugh waived this claim on appeal. Before a court may grant declaratory relief based on a constitutional violation, the violation must be set forth with specificity; broad, vague and ill-defined allegations of unconstitutionality are insufficient. United States v. West Virginia, 295 U.S. 463, 470-75 (1935); United States v. State of Wash., 759 F.2d 1353, 1356-57 (9th Cir.1985). Courts also should not intervene unless the need for equitable relief is clear, particularly when government action is involved. Eccles v. Peoples Bank of Lakewood Village, 333 U.S. 426, 431 (1947), reh'g denied, 333 U.S. 877 (1948); State of Cal. v. Oroville-Wyandotte Irrigation Dist., 409 F.2d 532, 535 (9th Cir.1969).

The amended complaint does not describe clearly those "policies, practices and acts" Heimbaugh believes are unconstitutional. Thus, Heimbaugh fails to state a claim upon which declaratory relief may be granted, and the district court's dismissal of his claim was not improper.

Heimbaugh next argues that his amended complaint states a claim in retaliation and sexual harassment under 42 U.S.C. Sec. 1983. The amended complaint alleges that Heimbaugh was sexually harassed because he was disciplined and received poor performance evaluations after refusing sexual advances made by appellee Littlejohn and after complaining to supervisory personnel that appellee Cook had embraced and kissed several female co-workers. The district court determined that municipal liability could not be established based upon the actions of Littlejohn and Cook and dismissed the claim.

In a Sec. 1983 action, municipal liability cannot be predicated upon respondeat superior. Monell v. Department of Social Servs., 436 U.S. 658, 694 (1978). To establish municipal liability under Sec. 1983, a plaintiff must allege that he or she suffered a constitutional tort as a result of municipal policy or custom. Id. As a general rule, "a single incident of unconstitutional activity is not sufficient to impose liability under Monell, unless proof of the incident includes proof that it was caused by an existing, unconstitutional municipal policy, which policy can be attributed to a municipal policymaker." City of Okla. City v. Tuttle, 471 U.S. 808, 823-24 (plurality opinion), reh'g denied, 473 U.S. 925 (1985). However, under certain circumstances, municipal liability may be imposed for a single decision or action by a municipal policymaker when that decisionmaker possesses "final authority" to establish municipal policy with respect to the action ordered. Pembaur v. City of Cincinnati, 475 U.S. 469, 481-84 (1986) (plurality opinion); see City of St. Louis v. Praprotnik, 485 U.S. 112, 127-28 (1988) (plurality opinion) (noting that section 1983 liability may be established only when the municipality's actions were the result of municipal policy adopted by authorized personnel).

Heimbaugh's amended complaint fails to allege that anyone in the San Francisco Sheriff's Office ever promulgated, or even articulated, a policy of sexual harassment. The district court determined that although appellees Littlejohn and Cook were supervisors, they were not "responsible for establishing final policy with respect to the subject matter in question," Pembaur, 475 U.S. at 483-84, and dismissed Heimbaugh's Sec. 1983 claim under Rule 12(b)(6). We agree with the district court's conclusion that under Monell, Pembaur and Praprotnik, Littlejohn and Cook's alleged actions do not establish a basis for municipal liability, and hold that the district court did not err in dismissing the Sec. 1983 claim.

Heimbaugh also argues that he was denied a fair civil service termination hearing on May 26, 1987, because the Sheriff's counsel, appellee Betty Bortin, allegedly threatened his cohabitant with felony prosecution. He also contends that he was forced to dismiss a viable cause of action under threat of his cohabitant's prosecution.

The district court dismissed this claim on two grounds. First, the court determined that it did not have jurisdiction to determine whether Heimbaugh's state-guaranteed right to a fair hearing was violated. Second, even if Heimbaugh's amended complaint does state a federal due process claim, the appellees' actions did not deprive him of a fair termination hearing.

We agree with the district court's dismissal of Heimbaugh's due process claim. If the claim was premised upon the due process clause of the California Constitution, the district court could consider it only if the court invoked pendent jurisdiction over the state claim. However, "pendent jurisdiction is a doctrine of discretion, not of plaintiff's right." United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726 (1966). Given the tenuous nature of Heimbaugh's due process claim, we do not believe that the district court's refusal to consider this pendent claim was inconsistent with the sound exercise of its discretion. See Wren v. Sletten Const. Co., 654 F.2d 529, 535-36 (9th Cir.1981) (declining to exercise pendent jurisdiction).

Even if Heimbaugh's complaint does state a federal due process claim, we agree with the district court's determination that he was granted a fair hearing in accordance with procedural due process safeguards. Ms. Bortin's warning that Heimbaugh's cohabitant may face possible felony prosecution if she contradicted her earlier statements to the police was appropriate and did not render the termination hearing unfair. Therefore, the district court's dismissal of Heimbaugh's due process claim was not improper.

Heimbaugh next contends that the district court improperly dismissed his claim that the San Francisco police violated his fourth amendment rights by illegally searching his apartment and automobile. The district court determined that Heimbaugh had failed to state a claim for an illegal search of his apartment because (1) probable cause existed for the search, (2) exigent circumstances were present and (3) Heimbaugh's cohabitant consented to the search. The court also determined that the officers had probable cause to search Heimbaugh's automobile.

Police may search a premises without a warrant if probable cause or exigent circumstances exist. Probable cause requires "a reasonable belief, evaluated in light of the officer's experience and the practical considerations of everyday life, that the suspect [ ] ha[s] committed a crime and [is] to be found in the place to be searched." United States v. Robertson, 606 F.2d 853, 858 (9th Cir.1979). Exigent circumstances are present when "a substantial risk of harm to the persons involved or to the law enforcement process would arise if the police were to delay a search until a warrant could be obtained." Id. at 859.

The searches in this case occurred when police officers responded to a "911" call from Heimbaugh's cohabitant in which she claimed that Heimbaugh was trying to kill her. Because the officers had reason to believe that a crime was being committed within Heimbaugh's apartment and that a life was at risk, their entry into the apartment was not illegal. Furthermore, third party consent to search a premises is lawful when granted by a person who has common authority over the premises or effects sought inside. United States v. Matlock, 415 U.S. 164, 171 (1974). Not only did the officers have probable cause and exigent circumstances justifying the search of the apartment, but they also acted with the consent of Heimbaugh's cohabitant.

The police also had probable cause to search Heimbaugh's automobile. Heimbaugh's cohabitant told the police that he had threatened her with two guns. After the officers found one gun in the apartment, Heimbaugh's cohabitant informed them that the other one was in the glove compartment of his automobile. Thus, the officers' subsequent search of the automobile was appropriate.

Because the police officers had authority to conduct the warrantless searches of Heimbaugh's apartment and automobile, the district court's dismissal of his fourth amendment claim was not improper.

Heimbaugh next contends that the district court erred in dismissing his claim for a constitutional deprivation under 42 U.S.C. Sec. 1983 based on conduct resembling common-law assault and battery. Heimbaugh avers that during his arrest on January 6, 1987, a San Francisco police officer "struck and shoved [him] into a chair." Amended Complaint at 11; Excerpts of Record at 50. The district court dismissed the claim because Heimbaugh had failed to state facts supporting a claim of deprivation of substantive due process under Sec. 1983.

We have held that conduct under color of state law is actionable under Sec. 1983 when it can be "fairly characterized as intentional, unjustified, brutal, and offensive to human dignity." Meredith v. State of Ariz., 523 F.2d 481, 484 (9th Cir.1975). We agree with the district court that Heimbaugh's allegation that he was shoved into a chair "falls far short of the Meredith criteria." Memorandum and Order at 18; E.R. at 115. Accordingly, we uphold the district court's dismissal of this particular Sec. 1983 claim.

Heimbaugh also contends that the district court erred in dismissing his claim for common-law conspiracy between appellees Cook and Littlejohn. Although this cause of action was inartfully pleaded, the district court determined that Heimbaugh's amended complaint actually alleged a conspiracy under 42 U.S.C. Sec. 1985(3), which creates a cause of action when "[a]n agreement to discriminate [exists] between two or more individuals." Rebel Van Lines v. City of Compton, 663 F.Supp. 786, 793 (C.D.Cal.1987).

However, as the district court observed, Sec. 1985(3) does not create substantive rights; a plaintiff must state a violation of some substantive federal or state civil rights statute or constitutional provision. Great Am. Federal Savings & Loan Ass'n v. Novotny, 442 U.S. 366, 372 (1979). A plaintiff also must claim some racial or other class-based, invidiously discriminatory animus leading to the deprivation of civil rights. United Brotherhood of Carpenters and Joiners of Am., Local 610 v. Scott, 463 U.S. 825, 834-39, reh'g denied, 464 U.S. 875 (1983); California Republican Party v. Mercier, 652 F.Supp. 928, 936-37 (C.D.Cal.1986). Heimbaugh's conspiracy claim fails to state either a violation of a civil rights statute or constitutional provision, or a class-based, invidiously discriminatory animus; therefore, the district court did not err in dismissing his claim.

Heimbaugh also attempts to allege a conspiracy involving Boileau and Operating Engineers Local 3. Because this claim was not raised in the district court, we will not notice it here. See Michael-Regan Co., Inc. v. Lindell, 527 F.2d 653, 659 (9th Cir.1975).

Heimbaugh next argues that the district court improperly dismissed his claim for fraud. The amended complaint avers that the appellees committed fraud by failing to provide Heimbaugh with a copy of his "resignation document" as promised at the civil service termination hearing. The district court dismissed the claim for failure to meet the pleading requirements of Rule 9(b), F.R.Civ.P.

Rule 9(b) requires that "[i]n all averments of fraud or mistake, the circumstances constituting fraud or mistake shall be stated with particularity." In Wilcox v. First Interstate Bank of Or., 815 F.2d 522 (9th Cir.1987), we observed that a plaintiff generally must establish the following to state a cause of action for common-law fraud:

(a) a representation; (2) its falsity; (3) its materiality; (4) the speaker's knowledge of its falsity or ignorance of its truth; (5) an intent that it be acted on by the person and in the manner reasonably contemplated; (6) the hearer's ignorance of its falsity; (7) reliance on its truth; (8) the right to rely thereon; and (9) consequent and proximate injury.

Id. at 531 n. 7.

Heimbaugh's amended complaint fails to plead adequately any of these elements. Heimbaugh does not establish that any representation to provide him with a copy of his "resignation document" was false. He also does not specify what "resignation document" purportedly was missing from his personnel file. Based on these facts, we conclude that the district court's dismissal of Heimbaugh's fraud claim was not improper.

Heimbaugh also argues that the district court erred in dismissing his state claim against appellees Robert Boileau and Operating Engineers Local 3 for negligently representing him at his termination hearing. The amended complaint, which is based on federal question jurisdiction, fails to allege an independent basis for federal subject matter jurisdiction against Boileau and Local 3. Thus, they are pendent parties to this action and must be dismissed for lack of subject matter jurisdiction. See Aldinger v. Howard, 427 U.S. 1, 17 (1976). Accordingly, the district court did not err in dismissing the claim against Boileau and Local 3.

Finally, Heimbaugh argues that the district court abused its discretion in awarding the defendant-appellees sanctions under Rule 11. The district court concluded that Heimbaugh's amended complaint was frivolous on its face and "entirely unwarranted by existing law or a good faith argument for modification or extension of existing law," Memorandum and Order at 22; E.R. at 119, and ordered him to pay the defendants their reasonable expenses in litigating their motions to dismiss.

Although Heimbaugh appeared pro se before the district court, he has completed law school and taken a bar examination. He also was sanctioned previously for filing a frivolous complaint in another action against some of the same defendants. See Heimbaugh v. City and County of San Francisco, 591 F.Supp. 1573, 1577 (N.D.Cal.1984). Under the circumstances present here, we do not conclude that the district court's award of sanctions was inconsistent with the sound exercise of its discretion.

Because Heimbaugh's amended complaint fails to state a claim upon which relief may be granted against any of the city and county defendants, and because the district court clearly cannot exercise subject matter jurisdiction over Boileau and Operating Engineers Local 3, the district court's judgment of dismissal is

AFFIRMED.