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Randall T. Fennell v. Matthew Theodore Gregory

January 31, 2011

RANDALL T. FENNELL, PLAINTIFF - APPELLEE,
v.
MATTHEW THEODORE GREGORY, I, FORMER ATTORNEY GENERAL; GREGORY BAKA, ACTING ATTORNEY GENERAL; ANTHONY WELCH, ASSISTANT ATTORNEY GENERAL; TOM J. SCHWEIGER, DEFENDANTS - APPELLANTS, AND BANK OF SAIPAN, DEFENDANT-INTERVENOR.



D.C. No. 1:09-cv-00019 Appeal from the United States District Court for the District of the Northern Mariana Islands Alex R. Munson, Chief District Judge, Presiding

FILED

NOT FOR PUBLICATION

MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

MEMORANDUM*fn1

Argued and Submitted October 14, 2010

Honolulu, Hawaii

Before: HAWKINS, McKEOWN and RAWLINSON, Circuit Judges.

Randall Fennell filed this civil rights action alleging that various Attorneys General violated Fennell's Fourteenth Amendment due process right to conflictfree counsel and First Amendment rights to free speech and access to the courts. The district court granted in part and denied in part the Attorneys General's motion to dismiss. We review de novo the Attorneys General's appeal of the district court's denial of absolute and qualified immunity. Tennison v. City and Cnty. of San Francisco, 570 F.3d 1078, 1087 (9th Cir. 2009). We affirm in part and reverse in part.

In determining whether the Attorneys General are entitled to qualified immunity, we review (1) whether the facts pled in the complaint, construed in the light most favorable to Fennell, show that the Attorneys General's conduct violated a constitutional right; and (2) whether the right was clearly established in light of the circumstances of this case. See Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled on other grounds by Pearson v. Callahan, 129 S. Ct. 808 (2009).

Fennell contends that he has a constitutionally protected property interest in conflict-free counsel. However, Fennel's understanding of this interest is unique: he argues that he has a constitutional right to the appointment of outside counsel, which arose after the Office of the Attorney General began its concurrent representation of an adverse party. Because Commonwealth law provides that decisions regarding the appointment of outside counsel are left to the sound discretion of government officials, Fennell does not have such a protected property interest. See Town of Castle Rock, Colo. v. Gonzales, 545 U.S. 748, 756 (2005) ("[A] benefit is not a protected entitlement if government officials may grant or deny it in their discretion.").*fn1 In any event, the right to conflict-free representation in this context was not clearly established for qualified immunity purposes. See Hope v. Pelzer, 536 U.S. 730, 739 (2002) ("For a constitutional right to be clearly established, its contours must be sufficiently clear that a reasonable official would understand that what he is doing violates that right.") (internal quotations omitted). The Attorneys General are thus entitled to qualified immunity with respect to Fennell's Fourteenth Amendment due process claims.

The Attorneys General argue that the district court should have dismissed Fennell's First Amendment claims for failure to plead with proper specificity.

Although rulings regarding the sufficiency of pleadings are not ordinarily subject to immediate appeal, we may exercise pendent jurisdiction "over an otherwise non-appealable ruling if the ruling is 'inextricably intertwined' with a claim properly before us on interlocutory appeal." Kwai Fun Wong v. United States, 373 F.3d 952, 960 (9th Cir. 2004). Because we must determine whether Fennell has pled facts constituting a constitutional violation as part of the qualified immunity inquiry, we may exercise pendent jurisdiction to review the sufficiency of Fennell's Complaint. See id. at 962 ("Whether a complaint fails to allege legally cognizable claims is . . . 'inextricably intertwined' with the qualified immunity issue.").

We agree with the Attorneys General that Fennell's Complaint fails to satisfy the pleading standards set forth in Ashcroft v. Iqbal, 129 S. Ct. 1937, 1948 (2009). See id. ("[A] plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution."). Notably, Fennell's Complaint lacks factual particularity regarding the personal involvement and conduct of the individual Attorneys General. See Kwai Fun Wong, 373 F.3d at 966 (dismissing on interlocutory appeal a plaintiff's Bivens claims where complaint "fail[ed] to identify what role, if any, each individual defendant had in" the alleged unconstitutional conduct); Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988) ("Sweeping conclusory allegations will not suffice . . . . The [plaintiff] must set forth specific facts as to each individual defendant's" causal role in the alleged constitutional deprivation). Accordingly, Fennell's First Amendment claims must be dismissed.

Because Fennell fails to allege differential treatment from similarly situated individuals, any equal protection claims also must be dismissed for failure to state a claim. See City of Cleburne, Tex. v. ...


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