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Farrow v. Lipetzky

United States District Court, N.D. California

April 28, 2017

JOHN FARROW, et al., Plaintiffs,
v.
ROBIN LIPETZKY, Defendant.

          ORDER REGARDING MOTION TO DISMISS THIRD AMENDED COMPLAINT RE: DKT. NO. 93

          JOSEPH C. SPERO Chief Magistrate Judge.

         I. INTRODUCTION

         In this 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.

         Lipetzky 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 part.[1]

         II. BACKGROUND

         A. Plaintiffs' Allegations and Facts Subject to Judicial Notice

         Plaintiffs 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.

         Plaintiff 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.

         Farrow 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.

         Plaintiff 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.[2] 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. ¶ 36.

         During 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.

         Wade 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.

         Plaintiffs 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.

         The 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.

         Although 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.

         B. Procedural History

         1. May 2013 Order

         Plaintiffs' 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.[3]

         The 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.

         2. August 2013 Order

         After 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. 69).[4] The Court granted that motion and dismissed all claims, although it allowed Wade leave to amend his Sixth Amendment claim. Id. at 1-2.

         With 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)[5]). 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 prejudice.

         The 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.

         3. Ninth Circuit Decision and Subsequent Proceedings

         The 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 legal standard:

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 in Rothgery.

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.

         The 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.

         C. Parties' Arguments

         1. Motion to Dismiss

         According 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.

         Lipetzky 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.

         Lipetzky's 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.

         2. Opposition

         Plaintiffs 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.

         Turning 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.

         Responding 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.

         Because 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 ยง 27706, and Plaintiffs requested counsel at their first appearances-a ...


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