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July 17, 2000


The opinion of the court was delivered by: Zimmerman, United States Magistrate Judge.


On March 30, 2000, plaintiff Mary Roe filed her first amended complaint ("complaint") against the County of Lake, former sheriff's deputy John Caudillo, and Sheriff Rodney Mitchell seeking monetary damages and injunctive relief.*fn1 The gravamen of her complaint is that defendants violated her civil rights under 42 U.S.C. § 1983 and various state laws when, after coming to her home to investigate a report of domestic violence, Caudillo raped her. Plaintiff further alleges that defendants County of Lake and Sheriff Mitchell have a de facto policy or custom of encouraging their law enforcement officers to violate the civil rights of women. Specifically, she complains that the County and Sheriff Mitchell permitted this and other similar conduct by sheriff's deputies; failed to properly recruit, train, or discipline Caudillo or the other officers involved; and refused to prosecute her husband as part of a cover up. Defendants Lake County and Sheriff Mitchell (but not Caudillo) now move to dismiss the complaint against them pursuant to Federal Rule of Civil Procedure 12(b)(6), arguing that (1) the County cannot be liable because Mitchell and Caudillo acted on behalf of the State in their law enforcement capacity; (2) Mitchell is immune under the Eleventh Amendment because a sheriff is a state agent and therefore not a "person" within the meaning of section 1983; (3) plaintiff's state law violations are barred by the statute of limitations; and (4) once the federal claims are dismissed, there is no pendent party jurisdiction.*fn2

A local municipality, such as a county, may be sued under section 1983 if the alleged constitutional violations were committed by its officials pursuant to a municipal policy, practice, or custom. See Monell v. Department of Soc., Servs., 436 U.S. 658, 690-91, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). On the other hand, a State and its officials sued in their official capacity cannot be sued for damages under section 1983 because they are not "persons" within the meaning of the statute.*fn3 See Will v. Michigan Dep't of State Police, 491 U.S. 58, 71, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). Defendants argue that Sheriff Mitchell performs his law enforcement duties as an agent of the State of California and therefore is not subject to this suit, and, that the County cannot be liable for his or his deputies' actions that were undertaken pursuant to their state law enforcement duties.

Defendants' motion is premised on McMillian v. Monroe County, 520 U.S. 781, 117 S.Ct. 1734, 138 L.Ed.2d 1 (1997), in which the Supreme Court held that an Alabama sheriff could not be sued under section 1983 for intimidating witnesses into making false statements and suppressing exculpatory evidence because the sheriff was exercising state authority. The Supreme Court announced two principles to guide the inquiry of whether a county sheriff is a state or county official for purposes of section 1983 liability. First, the inquiry should not be made as a categorical "all or nothing" determination, as a sheriff may act for the State and the county in different capacities. See id. at 785, 117 S.Ct. 1734. Second, the inquiry depends upon an analysis of state law that looks beyond how the State labels a sheriff and to the definition of a sheriff's actual functions under the relevant state law. See id. at 786, 117 S.Ct. 1734. After balancing the State's constitutional and statutory provisions that govern sheriffs, and analyzing the historical development of those provisions, the Court concluded that Alabama sheriffs represent the State when they execute their law enforcement duties. See id. at 793, 117 S.Ct. 1784.

Before and after McMillian the Ninth Circuit has considered a California sheriff a local law enforcement agent for purposes of establishing section 1983 liability under Monell.*fn4 As I am aware of no reported case that has applied McMillian to the precise question that defendants' motion presents, I must conduct an independent analysis of California's constitution, statutes, and case law. See Weiner v. San Diego County, 210 F.3d 1025, 1029 (9th Cir. 2000). As in McMillian, my analysis begins with the California Constitution. In McMillian, the Supreme Court relied heavily on two provisions of the Alabama Constitution. First, and "especially important for our purposes," is the provision in the Alabama Constitution designating a county sheriff as an executive officer. See McMilliam 520 U.S. at 787, 117 S.Ct. 1734. In California, a sheriff is not designated by the constitution as a member of the executive branch, which is defined in Article V, titled "Executive." Instead, sheriffs in California are defined in Article XI of the Constitution, titled "Local Government." The California Constitution recognizes two forms of local government: counties and cities, with the sheriff designated as the chief law enforcement officer of the county.*fn5 See Cal. Const. art. XI, §§ 1, 2.

The other provisions of the Alabama Constitution relied on by the Supreme Court are those that make a county sheriff subject to impeachment for neglect of office and that moved the authority to impeach a sheriff from a county court to the Alabama Supreme Court. See McMillian, 520 U.S. at 788, 117 S.Ct. 1734. By contrast, the California Constitution does not list sheriffs in Article IV, section 18, which provides for impeachment of a variety of state officers before the Legislature. Instead, the authority to impeach a sheriff in California lies with the county grand jury. See Cal. Gov't Code § 3060; see also People v. Hulburt, 75 Cal.App.3d 404, 409, 142 Cal.Rptr. 190 (1977) (sheriff is "unquestionably an officer subject to section 3060 proceedings"). Not only does the California Constitution lack the provisions most important to the Supreme Court's decision in McMillian, its provisions read much like those of the Alabama Constitution prior to that State's determined effort to clarify that sheriffs were acting for the State when exercising their law enforcement functions.

The Supreme Court was impressed that the impeachment provisions were added to the Alabama Constitution in 1901 as part of a deliberate effort to exert state control over local sheriffs to prevent lynchings. See McMillian, 520 U.S. at 788, 117 S.Ct. 1734. California has no similar constitutional history. To the contrary, the constitutional history of Article XI shows that it was designed to strengthen local government.*fn6 The current versions of Article XI, sections 1(b) and 4(c), which specifically require counties to have elected sheriffs, were enacted in 1978 when the voters passed Proposition 6. The ballot arguments on both sides of the Proposition considered a sheriff to be a local law enforcement officer:

The passage of this constitutional amendment will assure all of the people in each of fifty-eight counties of this state that their chief law enforcement officer at county level, the sheriff, will continue to be directly answerable to them through the elective process.
. . . Indeed, one of the most awesome of these responsibilities is a mandate to take appropriate action when there is a break-down of law enforcement at the local level, in a municipality.*fn7

While the opponents wanted to have the option of an appointed sheriff, they too saw the sheriff as a local official:

This proposed amendment to our constitution represents but one more example of the state attempting to intrude on the rights of local government and is, indeed, a violation of the basic concept of home-rule.*fn8

Also critical to the Supreme Court in McMillian were the facts that under Alabama law, the State — not the county — would be liable for damages in a suit against a sheriff and that an Alabama county could not be liable under respondeat superior for a sheriff's acts. See McMillian, 520 U.S. at 789, 117 S.Ct. 1734 (citing Parker v. Amerson, 519 So.2d 442, 443-445 (Ala. 1987)). Similarly, in the Ninth Circuit, a crucial factor in determining whether an individual is exercising state or local authority is "who is legally obligated to pay the judgment that is being sought." Hyland v. Wonder, 117 F.3d 405, 413 (9th Cir. 1997) (quoting Regents of Univ. of Cal. v. Doe, 519 U.S. 425, 427, 117 S.Ct. 900, 137 L.Ed.2d 55 (1997)). Here, counsel for Sheriff Mitchell and Lake County conceded during oral argument that any judgment plaintiff obtains would be paid from county funds. See also Cal. Gov't Code § 970.2. And in California, the county is liable under respondeat superior for a sheriff's torts of the sort alleged here. See Cal. Gov't Code § 815.2 (a); Robinson v. Solano County, 00 C.D.O.S. 5735, 5737 (9th Cir. July 12, 2000) (citing White v. County of Orange, 166 Cal.App.3d 566, 572, 212 Cal.Rptr. 493 (1985)); Scott v. County of Los Angeles, 27 Cal.App.4th 125, 140, 32 Cal.Rptr.2d 643 (1994) ("Under Government Code section 815.2, subdivision (a), the County is liable for acts and omissions of its employees under the doctrine of respondeat superior to the same extent as a private employer.")*fn9

Under California law, sheriffs are defined and regulated as county employees. Sheriffs are elected within and by the county. See Cal. Gov't Code § 24205. Sheriffs in California are required to attend upon and obey state courts only within their county. See Cal. Gov't Code § 26603. In contrast, Alabama sheriffs are subject to the supervision of any court in the State, even those outside their county. See McMillian, 520 U.S. at 789, 117 S.Ct. 1734 (citing Ala.Code §§ 336-22-3(1), (2)). And unlike in Alabama, where a sheriff's salary is set by the Legislature, the salary of a sheriff in California is set by the county board of supervisors. See Cal. Gov't Code §§ 24000, 25300.

The only support in the California Constitution for the proposition that sheriffs are exercising state authority is found in Article V, section 13, which grants the Attorney General a supervisory role over "every district attorney and sheriff, and over such other law enforcement officers as may be designated by law." This provision was added in 1934, when the voters approved Proposition 4. As then Alameda County District Attorney Earl Warren told the voters, this amendment was designed to "address the lack of organization of our law enforcement agencies" by providing coordination and supervision by the Attorney General "[w]ithout curtailing the ...

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