Devereaux v. Abbey

263 F.3d 1070, 2001 Daily Journal DAR 9669, 2001 Cal. Daily Op. Serv. 7797, 2001 U.S. App. LEXIS 19674, 2001 WL 1008128
Court of Appeals for the Ninth Circuit·Decided September 5, 2001·No. No. 97-35781·Published·Cited by 1,226 cases

Opinions

Opinion by Judge TASHIMA; Concurrence by Judge FERNANDEZ; Partial Concurrence and Partial Dissent by Judge KLEINFELD.

TASHIMA, Circuit Judge:

Plaintiff Robert Devereaux brought suit in federal district court for alleged violations of his federal civil rights, and also on various state law grounds. The district [1073]*1073court granted summary judgment in favor of all defendants as to the federal claims and then declined to exercise supplemental jurisdiction over the state law claims, dismissing them without prejudice. This timely appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

I. BACKGROUND

This case arises out of the investigation and prosecution of Devereaux for alleged sexual abuse of foster children living in his home, an investigation that mushroomed into a sexual abuse “witch hunt” in which 43 adults were charged with over 29,000 counts of sexual molestation. We summarize the pertinent facts only briefly. The facts are set forth in detail in the three-judge panel opinion. See Devereaux v. Perez, 218 F.3d 1045, 1047-51 (9th Cir.), reh’g en banc granted, 235 F.3d 1206 (9th Cir.2000) (“Devereaux I ”).

On August 3, 1994, Detective Robert Ricardo Perez of the Wenatchee, Washington, Police Department interviewed A.R., a foster child of Devereaux’s, to determine whether A.R. was being sexually abused by Devereaux. A.R. initially denied that she was being abused but, upon further questioning, went on to tell Perez that she had been both a victim of and a witness to sexual abuse by Devereaux. On this basis, Perez brought Devereaux to the police station for questioning. Perez interviewed Devereaux about the alleged abuse, and Devereaux denied that he had sexually abused any of his foster children.

While Perez was interviewing Dever-eaux, Defendant-Appellee Linda Wood, an employee of the Washington Department of Social and Health Services (“DSHS”), arrived at the police station with A.S., another of Devereaux’s foster children. Perez briefly interrupted his interview with Devereaux to talk to A.S., who denied that there was any sexual abuse taking place in the Devereaux home. Perez then finished his interview with Devereaux and had him booked on one count of rape of a child in the third degree, on the basis of the alleged abuse of A.R.

Later on the same day, Perez also interviewed two more of Devereaux’s foster children and, with Wood, conducted a lengthy second interview of A.S. This interview lasted from 5:00 p.m. to 11 p.m. In it, A.S. repeatedly denied having been sexually abused by Devereaux. After six hours of questioning, however, she finally changed her story and said that he had abused her. Perez then had Devereaux booked for the rape and molestation of A.S.

From there the investigation grew and the accusations spread. Roughly one year later, the felony charges against Dever-eaux were dropped in exchange for his plea of guilty to two misdemeanor counts — one count of rendering criminal assistance and one count of fourth-degree assault (for having spanked one of his foster children). The conditions of his sentence prohibited him from having contact with certain children, from being a foster parent for two years, and from being employed in a field that caters to or has regular contact with minor children.

Devereaux then commenced this action under 42 U.S.C. § 1983, naming the following parties as defendants: Perez; Wood; DSHS; the City of Wenatchee; Timothy David Abbey, Laurie Alexander, and Kate Carrow, all of whom were employees of DSHS; Kenneth Badgley, in his official capacity as police chief for the Wenatchee Police Department; and Earl Tilly, the Wenatchee Public Safety Commissioner. Devereaux alleged violations of his federal rights and also brought several state law claims.

The defendants moved for summary judgment on the § 1983 claim, and the [1074]*1074district court granted their motions. It declined to exercise supplemental jurisdiction over the state law claims, dismissing them without prejudice to their being prosecuted in state court. See 28 U.S.C. § 1367(c). This timely appeal followed. A divided panel of this court affirmed the district court. See Devereaux I, 218 F.3d at 1045. We subsequently granted rehearing en banc. 235 F.3d at 1206.

Pursuant to a settlement agreement, Devereaux’s appeal with respect to Perez and Badgley was dismissed with prejudice. In addition, Devereaux has not challenged the dismissal of the state law claims or the grant of summary judgment in favor of the City of Wenatchee, DSHS, or Tilly.

Consequently, the only matter now before this court is Devereaux’s challenge to the grant of summary judgment in favor of Abbey, Alexander, Carrow, and Wood (hereinafter “Defendants”) on the § 1983 claim. The district court granted summary judgment to Defendants on that claim on the basis of qualified immunity, stating that Devereaux has “not cite[d], nor has this Court’s research revealed, case law to suggest that any of the State Defendants violated Plaintiffs clearly established rights based upon the evidence in the record.”

II. STANDARD OF REVIEW

We review a grant of summary judgment de novo. Werner v. San Diego County, 210 F.3d 1025, 1028 (9th Cir.2000). Viewing the evidence in the light most favorable to the nonmoving party, we must determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir.2000) (en banc).

III. DISCUSSION

Section 1983 creates a private right of action against individuals who, acting under color of state law, violate federal constitutional or statutory rights. 42 U.S.C. § 1983. Qualified immunity, however, shields § 1983 defendants “[f]rom liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982).

In Saucier v. Katz, 533 U.S. 194, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001), the Supreme Court clarified the two-step qualified immunity inquiry. To decide whether a defendant is protected by qualified immunity, a court must first determine whether, “[tjaken in the light most favorable to the party asserting injury, ... the facts alleged show the officer’s conduct violated a constitutional right.” Id. at 2156. If the plaintiffs factual allegations do add up to a violation of the plaintiffs federal rights, then the court must proceed to determine whether the right was “clearly established,” i.e.,

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Devereaux v. Abbey, 263 F.3d 1070, 2001 Daily Journal DAR 9669, 2001 Cal. Daily Op. Serv. 7797, 2001 U.S. App. LEXIS 19674, 2001 WL 1008128 (9th Cir. 2001).

263 F.3d 1070 (Devereaux v. Abbey) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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