and Submitted May 2, 2016 Pasadena, California
from the United States District Court No.
2:10-cv-06609-SJO-PJW for the Central District of California
S. James Otero, District Judge, Presiding
K. Morris (argued) and Julia A. Vogelzang, Duane Morris LLP,
San Diego, California, for Plaintiff-Appellant.
Millicent L. Rolon (argued), Principal Deputy County Counsel;
Roger H. Granbo and Jennifer A.D. Lehman,
Assistant County Counsel; John F. Krattli, County Counsel;
Mary C. Wickham, Interim County Counsel; Los Angeles County
Counsel, Los Angeles, California; for Defendants-Appellees
County of Los Angeles, Steve Cooley and Michele Hanisee.
P. Pruett (argued), Brenda M. Ligorsky, and Michael J.
Trotter; Carroll, Kelly, Trotter, Franzen, McKenna & Peabody,
Long Beach, California; for Defendant-Appellee Southern
California Permanente Medical Group.
Before: Milan D. Smith, Jr. and Jacqueline H. Nguyen, Circuit
Judges, and Claudia Wilken, [*] Senior District Judge.
panel reversed in part the district court's dismissal of
a civil rights action brought by a plaintiff who was an alibi
witness in her son's murder trial.
the plaintiff was scheduled to undergo brain surgery with an
uncertain outcome, her deposition was taken. She authorized
her medical provider to disclose to the prosecution medical
records related to her brain tumor. The lead prosecutor
instead subpoenaed all of her medical records, erroneously
representing that the plaintiff was the murder victim. The
plaintiff ultimately testified at her son's trial, and
the prosecutor used her medical records to undermine her
panel held that the prosecutor and her supervisor, the Los
Angeles County District Attorney, were not entitled to
absolute immunity for the prosecutor's misrepresentations
in her declaration supporting the subpoena application.
Following other circuits, the panel declined to adopt a rule
that absolute prosecutorial immunity is unavailable against
claims of unindicted third-party witnesses. The panel held
that the prosecutor was absolutely immune for issuing the
subpoena and for using the plaintiff's medical
information at trial. She was entitled to qualified immunity,
at most, for her declaration. The supervising attorney was
immune to the same extent as the prosecutor.
panel held that the district court abused its discretion by
denying the plaintiff leave to amend her claim under 42
U.S.C. § 1983 against the County of Los Angeles to
allege that actions pursuant to the County's policy or
custom caused her injuries.
panel held that the county, the district attorney, and the
prosecutor were not entitled to state statutory immunity
because the claims against them were not malicious
panel also reversed the dismissal of state law claims against
the medical provider. It remanded the case to the district
WILKEN, Senior District Judge
Detrice Garmon was an alibi witness in her son's murder
trial. Because she was scheduled to undergo brain
surgery with an uncertain outcome, her deposition was taken
pursuant to state court procedure. She authorized
Defendant-Appellee Southern California Permanente Medical
Group ("Kaiser") to disclose to the prosecution
medical records related to her brain tumor. The next day,
Defendant-Appellee Los Angeles County Deputy District
Attorney Michele Hanisee, the lead prosecutor, issued a
subpoena duces tecum to Kaiser instead requesting all of
Garmon's medical records. Hanisee provided a declaration
in support of the application for the subpoena duces tecum,
erroneously representing that Garmon was the murder victim in
her son's trial. Garmon ultimately testified at her
son's trial, and Hanisee used Garmon's medical
records from Kaiser to undermine Garmon's credibility.
acting pro se, filed a complaint in district court
for monetary damages under 42 U.S.C. § 1983 and several
state law causes of action against Hanisee and Kaiser, and
against Defendants-Appellees Steve Cooley, the Los Angeles
County District Attorney at the time of the trial, and the
County of Los Angeles. Hanisee, Cooley and the County are
referred to as the "County Defendants." Garmon
later filed a First Amended Complaint, which is the operative
complaint. The court dismissed all causes of action against
the County Defendants with prejudice and against Kaiser
reverse in part and remand for further proceedings. Hanisee
and Cooley are not entitled to absolute immunity for
Hanisee's misrepresentations in her declaration
supporting the application for the subpoena duces tecum.
Further, the court abused its discretion by denying Garmon
leave to amend her § 1983 claim against the County. The
County Defendants are not entitled to the claimed state
statutory immunity because the claims against them are not
malicious prosecution claims. Finally, because we reverse the
dismissal of certain federal claims, we reverse the district
court's dismissal of state law claims against Kaiser.
release Garmon signed encompassed "Information Regarding
Specific Injury or Treatment (from 1/08 to Present), "
x-ray reports and "only information regarding tumor in
mailed a subpoena duces tecum to Kaiser with a cover letter,
which erroneously stated that Garmon was the victim in a
murder prosecution. Hanisee evoked a federal regulation under
the Health Insurance Portability and Accountability Act
(HIPAA) that permits disclosure without the consent or
notification of the subject of the subpoena. The subpoena
commanded Kaiser to produce the documents in its custody
"described in the copy of the application for subpoena
duces tecum attached hereto which is incorporated herein by
reference." The application attached to the subpoena
requested "[a]ny and all medical records for DETRICE
GARMON, " and explained that the "medical records
will indicate the character and extent of the injuries
inflicted upon DETRICE GARMON and are necessary to establish
the elements of the charged crime." The application
provided that the ...