United States District Court, N.D. California
ORDER REGARDING MOTION TO DISMISS THIRD AMENDED
COMPLAINT RE: DKT. NO. 93
C. SPERO Chief Magistrate Judge.
putative class action under 42 U.S.C. § 1983, Plaintiffs
John Farrow and Jerome Wade allege that Defendant Robin
Lipetzky, in her official capacity as the Contra Costa County
Public Defender, violated Plaintiffs' Sixth Amendment
right to counsel by implementing a policy of delaying
appointment of counsel until several days after a criminal
defendant's first appearance in court. Plaintiffs also
bring related claims under California law. The Court twice
previously dismissed Plaintiffs' claims. After the second
dismissal, Plaintiffs appealed to the Ninth Circuit, which
reversed this Court's holding as to certain aspects of
Plaintiffs' claim under the Sixth Amendment, and remanded
for this Court to consider whether Plaintiffs have adequately
alleged that Lipetzky failed to provide counsel within a
reasonable time after attachment of the right.
moves to dismiss once again. Among other arguments, she
raises for the first time the question of whether
Plaintiffs' claims are barred by the doctrine of Heck
v. Humphrey, 512 U.S. 477 (1994). The Court held a
hearing on January 20, 2017. For the reasons discussed below,
Lipetzky's motion is GRANTED in part and DENIED in
Plaintiffs' Allegations and Facts Subject to Judicial
allege that Lipetzky implemented a written policy that
''arbitrarily withheld legal representation to
indigent, in-custody criminal defendants for a period of 5 to
13 days after their initial Court appearance.'' 3d
Am. Compl. (''TAC, '' dkt. 91) ¶ 1.
Under that policy, a defendant would not receive counsel at
his or her first court appearance, but if a defendant
requested counsel at that appearance and could not afford to
pay, the court would set bail, refer the defendant to the
public defender, and continue the case for a
''further arraignment'' several days later.
See Id. ¶¶ 1-2, 4, 21, 27, 36.
Farrow was arrested on August 30, 2011, based on allegations
that he had assaulted his domestic partner. Id.
¶¶ 25, 31. He first appeared in court on September
2, 2011, at which time the judge asked if he could afford
counsel and would like the court to appoint counsel.
Id. ¶¶ 26-27. Farrow replied that he could
not afford counsel and would like appointed counsel, and the
judge ''set bail, 'referred the matter to the
Public Defender, ' and continued the matter to September
15, 2011 for 'further arraignment.'''
Id. ¶ 27. The judge also asked the probation
department to prepare a bail study, which was prepared during
the period between the two court appearances and included
only information unfavorable to Farrow because, without
counsel, there was no way for him to provide mitigating
information such as his ties to the community or employment
status. Id. ¶ 28. The judge did not advise
Farrow of his right to enter a plea at the first appearance,
and Farrow remained in jail for the next thirteen days.
Id. ¶ 27.
was appointed counsel and entered a plea at his second
appearance on September 15, 2011, which was sixteen days
after his arrest and thirteen days after his first
appearance. Id. ¶ 29. According to Plaintiffs,
the delay in Farrow obtaining counsel ''might
have'' contributed to his investigator's failure
to locate witnesses whose testimony could have implicated the
credibility of the complaining witness (Farrow's domestic
partner) and thus ''would have had an enormous impact
on plea negotiations and may have resulted in acquittal had
the matter gone to trial.'' Id. ¶ 31.
Farrow pled guilty to one count against him on December 1,
2011. Def.'s Req. for Judicial Notice (''RJN,
'' dkt. 94) Ex. A.
Wade, then seventeen years old, was arrested at his high
school on November 8, 2011 for his alleged involvement in a
convenience store robbery. TAC ¶¶ 32, 43. Wade
first appeared without counsel on November 14, 2011.
Id. ¶ 33. A country prosecutor also appeared in
court that day, which Plaintiffs contend made the appearance
''an adversarial encounter.'' Id.
¶ 35. The judge set bail and asked Wade whether he could
afford counsel and whether he would like counsel appointed.
Id. ¶ 36. Wade responded that he could not
afford counsel and would like appointed counsel, and the
judge '''referred the matter to the Public
Defender, ' and continued the matter to November 21 for
'further arraignment.''' Id. The
judge did not advise Wade of ''his right to enter a
plea, his right to bail, his right to prompt arraignment or
his right to a speedy preliminary hearing and
trial.'' Id. As in the case of Farrow, the
judge also referred the matter to the probation department
for a bail study, which did not include information favorable
to Wade because he did not have counsel. Id. ¶
37. Wade remained in jail for seven days. Id. ¶
the period between Wade's first and second court
appearances, the police and district attorney continued their
investigation of his case. Id. ¶ 39. On
November 18, 2011, the district attorney filed an amended
complaint adding new charges and significantly increasing
Wade's exposure. Id. ¶ 40. The district
attorney was able to do so without leave of the court because
Wade had not yet entered a plea. Id.
was appointed counsel at his second court appearance on
November 21, 2011. Id. ¶ 41. Later, his
investigator interviewed his high school principal, who had
been present when the police interrogated Wade. Id.
¶ 42. The principal could not remember when Wade was
given Miranda warnings or whether he had been
wearing a sweatshirt that connected him to the robbery.
Id. ¶¶ 42, 43. Plaintiffs allege that the
principal ''likely'' would have remembered
what Wade was wearing if she had been interviewed sooner, and
suggest (but do not specifically allege) that her memory of
the Miranda warnings would have been clearer as
well. See Id. Wade pled guilty to three counts on
December 6, 2012. RJN Ex. B.
characterize their claims as ''a facial challenge to
the constitutionality of Defendant's written policy of
arbitrarily withholding counsel for an unreasonable period of
time, '' and seek to represent a class consisting of
all persons who ''were subjected to the deprivation
of counsel at their first court appearance and were forced to
continue their cases for 5 days or more for appointment of
counsel, pursuant to the Public Defender's written
Policy, '' from December 21, 2010 through the
resolution of this action. TAC ¶¶ 45-48.
Third Amended Complaint includes three claims: (1) a claim
under 42 U.S.C. § 1983 for violation of Plaintiffs'
Sixth Amendment right to counsel, TAC ¶¶ 56-58; (2)
a claim under the Bane Act, sections 52 and 52.1 of the
California Civil Code, for violation of Plaintiffs' civil
rights, TAC ¶¶ 59-60; and (3) and a claim under
sections 1085 and 1086 of the California Code of Civil
Procedure for a writ of mandate to enforce section 27706 of
the California Government Code, which requires public
defenders to represent criminal defendants ''at all
stages of the proceedings, '' TAC ¶¶ 61-63.
the Third Amended Complaint includes allegations that
Lipetzky's policy sometimes resulted in delays in
appointing counsel longer than thirteen days, Plaintiffs have
stipulated that the Court may disregard that allegation for
the purpose of Lipetzky's motion to dismiss. See
Case Mgmt. Statement (dkt. 87) at 4.
May 2013 Order
original complaint included six claims: (1) violation of
Plaintiffs' right to counsel under the Sixth Amendment;
(2) violation of Plaintiffs' right to a speedy trial
under substantive due process protections of the Fourteenth
Amendment; (3) violation of Plaintiffs' right to a speedy
trial under procedural due process protections of the
Fourteenth Amendment; (4) violation of Plaintiffs'
procedural due process rights under the Fourteenth Amendment
with respect to the timing of Plaintiffs' bail hearings;
(5) violation of California Civil Code sections 52 and 52.1;
and (6) a claim for a writ of mandate to enforce California
Government Code section 27706. See Order Granting
Def.'s Mot. to Dismiss Compl. (''May 2013 Order,
'' dkt. 47) at 5-6.
Court held that Plaintiffs' right to counsel attached at
their first court appearances, but that neither that
appearance nor the waiting period before the second
appearance was a ''critical stage'' at which
counsel was required. Id. at 14-20. The Court also
held that the delay in appointing counsel between the time of
attachment and the second appearance-which, unlike the first,
was a critical stage-did not violate the Supreme Court's
instruction that counsel must be provided within a reasonable
time after attachment, because the delay was shorter than in
other district court cases that found no violation, and
because Plaintiffs did not adequately allege that they were
prejudiced by the delay. Id. at 20-22 (citing
Rothgery v. Gillespie County, 554 U.S. 191 (2008)).
The Court therefore dismissed Plaintiffs' Sixth Amendment
claim with leave to amend. Id. The Court also
dismissed Plaintiffs' other federal claims with leave to
amend, for reasons that are not relevant to the present
motion because Plaintiffs have not renewed those claims.
Id. at 23-31. With no federal claims remaining, the
Court declined to exercise supplemental jurisdiction over
Plaintiffs' state law claims. Id. at 31-32.
August 2013 Order
the Court dismissed the initial complaint, Plaintiffs amended
their complaint twice, and Lipetzky moved to dismiss the
second amended complaint. See generally Order
Granting Def.'s Mot. to Dismiss 2d Am. Compl.
(''Aug. 2013 Order, '' dkt.
The Court granted that motion and dismissed all claims,
although it allowed Wade leave to amend his Sixth Amendment
claim. Id. at 1-2.
respect to the Sixth Amendment claim, the Court reaffirmed
its previous holdings that neither the first appearance nor
the waiting period before the second appearance was a
critical stage at which Plaintiffs were entitled to counsel,
but the second appearance was. Id. at 22-26 (citing
Lopez-Valenzuela v. County of Maricopa, 719 F.3d
1054 (9th Cir. 2013), subsequently superseded sub nom.
Lopez-Valenzuela v. Arpaio, 770 F.3d 772 (9th Cir. 2014)
(en banc)). Turning to the question of whether the
challenged policy failed to provide counsel within a
reasonable time after attachment of the right, the Court held
that although Plaintiffs added allegations regarding the
effect of the delay, the allegations did not sufficiently
identify any actual prejudice that Plaintiffs suffered as a
result. Id. at 26-27. Because Plaintiffs came closer
to plausibly alleging prejudice to Wade than to Farrow, the
Court dismissed Wade's Sixth Amendment claim with leave
to further amend but dismissed Farrow's claim with
Court dismissed Plaintiffs' remaining federal claims with
prejudice, for reasons that are not relevant to the present
motion, and again declined to exercise supplemental
jurisdiction over Plaintiffs' state law claims.
Id. at 28-35. Wade declined to further amend his
Sixth Amendment claim, and Plaintiffs instead appealed to the
Ninth Circuit Decision and Subsequent Proceedings
Ninth Circuit affirmed this Court's dismissal of
Plaintiffs' due process and equal protection claims.
Farrow v. Lipetzky, 637 F.App'x 986, 987-88 (9th
Cir. 2016) (dkt. 81), cert. denied, 137 S.Ct. 82
(2016). As for Plaintiffs' Sixth Amendment claims, the
panel affirmed this Court's conclusion that, on the facts
alleged, Plaintiffs' first court appearance was not a
critical stage that required the presence of counsel.
Id. at 988. The panel held that this Court erred,
however, in its analysis of whether counsel was appointed
within a reasonable time after attachment of the right, and
remanded for consideration of that issue under the correct
The remaining question is whether Lipetzky appointed counsel
within a ''reasonable time after attachment to allow
for adequate representation at any critical stage before
trial, as well as at trial itself.''
Rothgery, 554 U.S. at 212. In other words, how soon
after the Sixth Amendment right attaches must counsel be
appointed, and at what point does delay become
constitutionally significant? Instead of addressing whether
the delay in appointing counsel was unreasonable, the
district court considered only whether the delay
''impacted [plaintiff's] representation at
subsequent critical stages of his proceedings.'' By
framing the question in that way, the district court
erroneously required the plaintiffs to allege actual
prejudice. See United States v. Wade, 388 U.S. 218,
225, 236-37 (1967) (finding a Sixth Amendment violation based
on the ''grave potential for prejudice'');
Hamilton v. Alabama, 368 U.S. 52, 54 (1961) (finding
a Sixth Amendment violation where the absence of counsel
''may affect the whole trial''). We therefore
remand for the district court to consider whether appointing
counsel five to thirteen days and ''sometimes
longer'' after the right attaches complies with the
''reasonable time'' requirement articulated
Id. at 988-89. The panel also directed this Court to
reconsider whether supplemental jurisdiction over
Plaintiffs' state law claims is appropriate in light of
the Court's reconsideration of the Sixth Amendment claim.
Id. at 989.
Supreme Court denied Plaintiffs' petition for certiorari
on October 3, 2016. See dkt. 102. Following remand
to this Court, Plaintiffs filed their operative third amended
complaint, and Lipetzky again moves to dismiss.
Motion to Dismiss
to Lipetzky, the Ninth Circuit's decision in this case
requires this Court to consider both whether the delay in
appointing counsel created ''grave potential for
prejudice, '' and whether it resulted in actual
prejudice. Mot. (dkt. 93) at 6. Lipetzky argues that
Plaintiffs do not meet the standard to show the former,
because the Supreme Court cases on which the Ninth Circuit
relied for the ''potential for prejudice''
standard involved denial of counsel at critical
stages, and the Ninth Circuit's decision did not
reverse this Court's holdings that neither the first
appearance nor the waiting period between appearances was a
critical stage. Id. at 6-8 (discussing
Wade, 388 U.S. 218; Hamilton, 368 U.S. 52).
Lipetzky contends that those prior holdings are therefore the
law of the case, and that Plaintiffs have not given the Court
a sufficient reason to depart from those holdings.
Id. at 8-9. To the extent Plaintiffs' present
complaint could be construed as bringing an as-applied,
rather than facial, challenge to the policy at issue,
Lipetzky argues that actual prejudice is required for such a
challenge, and Plaintiffs have not adequately alleged that
they suffered actual prejudice as a result of the policy.
Id. at 9-12.
also contends that Plaintiffs' Sixth Amendment claim is
barred by the doctrine of Heck v. Humphrey, 512 U.S.
477 (1994), because success on that claim would necessarily
imply the invalidity of their convictions. Mot. at 12-13
(citing, e.g., Trimble v. City of Santa
Rosa, 49 F.3d 583 (9th Cir. 1995)). Lipetzky further
challenges the Sixth Amendment claim on the basis that the
state court, not Lipetzky, set the length of the delay.
Id. at 13-14.
motion concludes by briefly arguing that Plaintiffs'
state law claims should be once again dismissed for lack of
jurisdiction if she succeeds in dismissing the Sixth
Amendment claim, and that if the Court reaches those claims,
the Third Amended Complaint does not plausibly allege a
violation of Plaintiffs' rights under state law.
Id. at 14-15.
argue that their Sixth Amendment claim should not be
dismissed for several reasons. First, they contend that new
allegations in the Third Amended Complaint-specifically, that
Plaintiffs had a right to enter a plea at the first
appearance-distinguish the case in its present form from what
this Court and the Ninth Circuit previously considered, and
render the first appearance a critical stage requiring
counsel. Opp'n (dkt. 98) at 5-6. Next, they argue that
the Ninth Circuit's instruction to consider whether
counsel was appointed within a reasonable time after
attachment, a mandate that Plaintiffs believe contemplates a
facial challenge to the policy, requires examination of
factual issues inappropriate for resolution at the pleading
stage. Id. at 6-11. Plaintiffs also contend that
they have adequately alleged facts supporting an as-applied
challenged, because they allege that the delay in receiving
counsel affected both Wade's and Farrow's ability to
gather evidence. Id. at 11-12. As for Lipetzky's
law of the case argument, Plaintiffs respond that the Ninth
Circuit did not address whether the waiting period between
appearances was a critical stage, and that this Court has not
yet considered whether counsel was appointed within a
reasonable time under the standard stated in the Ninth
Circuit's decision. Id. at 13-15. Plaintiffs
argue that the law of the case doctrine does not apply
because the Ninth Circuit's decision constitutes
intervening controlling authority, and because new
allegations in the Third Amended Complaint require new
analysis. Id. at 15.
to the Heck doctrine, Plaintiffs argue that their
claims should proceed because Heck ''does
not apply to civil matters involving criminal defendants
whose convictions and sentences rest upon guilty pleas-as
they do in this case.'' Id. (citing,
e.g., Lockett v. Ericson, 656 F.3d 892
(2011)). Plaintiffs also argue that their claims do not
implicate Heck because ''this Court has
twice determined that there was no actual prejudice''
to either Farrow or Wade, and the error was therefore
harmless. Id. at 16. According to Plaintiffs, the
cases that Lipetzky cites are not analogous because each
involved a conviction at trial rather than a guilty plea.
Id. at 16-17.
to Lipetzky's argument that the court, rather than
Lipetzky, determined the length of the delay, Plaintiffs
contend that they have adequately alleged that the delay was
caused by Lipetzky's policy, and that it is reasonable to
infer that ''the continuance between arraignment
proceedings that Plaintiffs suffered could only occur upon
agreement between the Public Defender and the Superior
Court.'' Id. at 17-21.
Plaintiffs believe that the Sixth Amendment claim should go
forward, they contend that the Court has supplemental
jurisdiction over their state law claims. Id. at 21.
Addressing the merits of those claims, Plaintiffs argue that
they should be allowed to proceed on a claim under section
52.1 of the California Civil Code for interference with their
speedy trial rights under section 859(b) of the California
Penal Code, because although the policy did not actually
violate those rights, it prevented Plaintiffs from exercising
their rights to enter a plea at the first appearance, which
would have started the clock on their speedy trial rights
under section 859(b). Id. at 22. Plaintiffs also
argue that Lipetzky's policy violated section 27706 of
the California Government Code because that statute requires
public defenders to represent indigent defendants
''upon request . . . at all stages of the
proceedings, '' Cal. Gov't Code § 27706, and
Plaintiffs requested counsel at their first appearances-a