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United States District Court, Northern District of California

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 right of local self government." Argument in Favor of Proposition 4 by Earl Warren, District Attorney of Alameda County, 1934 General Election Ballot Pamphlet.*fn10

Article V, section 13 is fleshed out in several California statutes which give the Attorney General direct supervisory power over sheriffs, including the power to require written reports concerning any investigation, detection, and punishment of crime in their jurisdiction, see Cal. Gov't Code § 12560; to appoint persons to perform the duties of sheriff in particular circumstances; see Cal. Gov't Code § 12561; and to call a conference of district attorneys, sheriffs, and police chiefs to further "uniform and adequate enforcement" of state law, see Cal. Gov't Code § 12524. In addition, a county board of supervisors in California is limited in its general supervisory control over the county sheriff from interfering with his power to investigate and prosecute state crimes. See Cal. Gov't Code § 25303. The McMillian Court drew support from analogous statutory provisions in Alabama in finding that Alabama sheriffs are state officials. See McMillian, 520 U.S. at 790, 117 S.Ct. 1734.

In California, such an analysis would prove too much, as the California Constitution permits the Attorney General to supervise all "other law enforcement officers as may be designated by law," and California statutes treat sheriffs much like all other peace officers whose authority is fundamentally derived from and regulated by the Legislature.*fn11 Taken to its logical extreme, it would render all local law enforcement agencies in California immune from prosecution for civil rights violations and emasculate Monell, which preserves section 1983 liability against local governments.

"Section 1983 provides a federal forum to remedy many deprivations of civil liberties, but it does not provide a federal forum for litigants who seek a remedy against a State for alleged deprivations of civil liberties." Will, 491 U.S. at 66, 109 S.Ct. 2304. The purpose of a McMillian analysis is to cull from cases seeking a federal remedy for civil rights violations, those in which the remedy would impugn state sovereignty. "[I]t is an `established principle of jurisprudence' that the sovereign cannot be sued in its own courts without its consent." Id. at 67, 109 S.Ct. 2304. By delegating authority to a municipality, either through its charter or by statute, a State impliedly waives a municipality's immunity from liability for the nonperformance or misperformance of its obligations. See Owen v. City of Independence, 445 U.S. 622, 646, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980). In California, that waiver is explicit for both cities and counties. See Cal. Gov't Code §§ 23004(a), 34501.

Recognizing that local police power is derived from the State, McMillian requires a court to analyze the delegation of that power to determine whether it was sufficiently complete such that a suit for abuse of that power is not a suit against the State.*fn12 It seems clear from the analysis above that California's delegation of authority to Sheriff Mitchell is sufficiently complete. It is difficult to see how a judgment against a sheriff who, as is alleged here, permits his office to violate the civil rights of women in the way he maintains his staff and sets his policies, will operate as a judgment against the State. The fact that the sheriff is subject to supervision by the Attorney General does not alter this. Whatever the reality of the functional supervision that the Attorney General exercises over local sheriffs,*fn13 Sheriff Mitchell is ultimately supervised in Lake County, at least for the policies at issue here. The deterrent effect of paying any judgment plaintiff may obtain will be felt in Lake County.*fn14 If the public is dissatisfied with the way Sheriff Mitchell treats women victims, he will either not be reelected by the voters of Lake County or he will be impeached before a Lake County grand jury. It is hard to see how any of this will violate California's sovereignty.

Rather than conduct their own analysis of California law, the moving defendants rely almost exclusively on two cases, neither of which is directly on point. In Pitts v. County of Kern, 17 Cal.4th 840, 70 Cal.Rptr.2d 823, 949 P.2d 920 (1998), the California Supreme Court held that district attorneys were state officers and not subject to section 1983 liability for acts taken in prosecuting criminal violations of state law and in training their employees in those areas.*fn15 Pitts does not analyze the office of a California sheriff, presumably because the Kern County Sheriff, also a defendant in Pitts, did not move for summary judgment, as did the District Attorney, and was granted a nonsuit at trial. Instead, the plaintiffs in Pitts, faced with over 100 years of state cases recognizing that a district attorney who prosecutes criminal actions in the name of the People of the State of California is exercising state authority, "to a certain extent, conceded" that point. See Pitts, 17 Cal.4th at 851, 70 Cal, Rptr.2d 823, 949 P.2d 920.

A prosecutor is absolutely immune, under common law and by California statute, from torts arising out of prosecuting criminal violations. See Pitts, 17 Cal.4th at 360 n. 7, 70 Cal.Rptr.2d 823, 949 P.2d 920 (discussing California Government Code section 821.6). Such immunity assures that the fear of suits from acquitted defendants does not divert prosecutors from enforcing the law. See id. at 350-51, 70 Cal.Rptr.2d 823, 949 P.2d 920 (citing Imbler v. Pachtman, 424 U.S. 409, 424-25, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976)). The policy challenged here is not how the sheriff, let alone the district attorney, enforces the law, but how the sheriff treats female crime victims. Sheriff Mitchell is sued not by an acquitted defendant, but by a victim of a reported crime who alleges she was raped by a deputy sheriff during the investigation. Finding that a sheriff does not set state policy if he encourages mistreatment of women who are victims of crime or does not adequately prepare his staff to deal with women who are victims of spousal abuse will not burden any state law enforcement policy of the sort that concerned the Supreme Court in Pitts.*fn16

In County of Los Angeles v. Superior Court, 68 Cal.App.4th 1166, 80 Cal.Rptr.2d 860 (1998) (Peters), a California court of appeal held that a county sheriff is not subject to section 1983 liability for torts committed in his role as jailer. Peters, relying almost entirely on the holding in Pitts, found sufficient analogy between a sheriff and a district attorney under California law that it did not undertake its own analysis of the factors discussed above which distinguish a California sheriff from a district attorney or from an Alabama sheriff.*fn17 Because a determination of the sheriff's section 1983 liability is a question of federal, not state law, see Owen v. City of Independence, 445 U.S. 622, 647 n. 30, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980),*fn18 to the extent that Peters invites a ruling that Sheriff Mitchell is a state actor, I decline the invitation.*fn19

For the foregoing reasons, defendants' motion to dismiss the claims under section 1983 for damages and injunctive relief against Sheriff Mitchell in his official capacity are DENIED. In addition, the motion to dismiss the claim against Sheriff Mitchell in his individual capacity is DENIED. Although respondeat superior liability is not available under section 1983, the amended complaint alleges direct liability against Sheriff Mitchell for his failure to instruct, supervise, control, and discipline officers who were violating the civil rights of women. Accordingly, the allegations state a claim sufficient to survive a motion to dismiss.

Because the complaint survives against the sheriff in his official capacity as the chief policymaker for the county, the County is a redundant defendant and is therefore DISMISSED. However, plaintiff is granted leave to amend her complaint against the County in light of her state law allegations that could give rise to respondeat superior liability. Any amended complaint must be filed by no later than August 1, 2000.

Defendants argue that the state law claims are barred by the statute of limitations. Under California law, prior to filing a lawsuit for money damages against a local public entity, a plaintiff must present the claim to that entity. See Cal. Gov't Code § 905. If the claim is rejected, plaintiff has six months from the date such notice of rejection is delivered or deposited in the mail to file a complaint. See Cal. Gov't Code § 945.6. On June 29, 1999, plaintiff received a notice of rejection of her state tort claim. On November 23, 1999, she filed her original complaint in federal court against defendants for violation of civil rights under section 1983. On March 30, 1999, plaintiff filed her first amended complaint in federal court, specifying for the first time that she was suing under California Civil Code 51.7, and specifically identifying other state law theories. Defendants argue that these state theories are barred because they were filed after the six month statute of limitations.

"The statute of limitations does not bar an amended complaint alleging new causes of action if it rests on the same facts as the original complaint and refers to the same accident and same injuries as the original complaint." Goldman v. Wilsey Foods, Inc., 216 Cal.App.3d 1085, 1094, 265 Cal.Rptr. 294 (1989). In this case, the original complaint details almost verbatim the same factual allegations that are found in the amended complaint. Moreover, the original complaint alleges violations of plaintiff's federal and state civil and constitutional rights, and lists state tort theories of liability, including a claim for respondeat superior against the County which is only available under state law. The only alleged defect in the original complaint is the failure to identify California Civil Code section 51.7 as a cause of action. I find that this defect is not fatal in light of liberal notice pleading requirements in federal court, and because the amended complaint alleges this new cause of action based on the facts found in the original complaint.

Defendants' motion to dismiss the state law claims on statute of limitations grounds is therefore DENIED. Because the court retains jurisdiction over several of the federal causes of action, defendants' motion to dismiss the state law claims for no pendent jurisdiction is DENIED.

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