L.R. Bretz v. Zollie Kelman, Jack R. Lande, Eugene R. Welborn, Donald Zeman, James Cook, and the City of Great Falls, Montana, a Municipal Corporation

722 F.2d 503, 1983 U.S. App. LEXIS 14322
CourtCourt of Appeals for the Ninth Circuit
DecidedDecember 20, 1983
DocketCA 82-3111
StatusPublished
Cited by28 cases

This text of 722 F.2d 503 (L.R. Bretz v. Zollie Kelman, Jack R. Lande, Eugene R. Welborn, Donald Zeman, James Cook, and the City of Great Falls, Montana, a Municipal Corporation) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
L.R. Bretz v. Zollie Kelman, Jack R. Lande, Eugene R. Welborn, Donald Zeman, James Cook, and the City of Great Falls, Montana, a Municipal Corporation, 722 F.2d 503, 1983 U.S. App. LEXIS 14322 (9th Cir. 1983).

Opinions

J. BLAINE ANDERSON, Circuit Judge:

In this case we must determine whether an alleged plan to prosecute Bretz, including a scheme to coerce witnesses and falsify evidence, states an actionable wrong under 42 U.S.C. § 1983. Because we agree with the district court that Bretz’ amended complaint fails to allege the violation of a constitutionally protected interest, we affirm.

On October 24,1976, Jack Lande, Eugene Welborn, and a third man were arrested for burglarizing the residence of Zollie Kelman. On January 26, 1977, Bretz, who had been in prison since December 1, 1976 on an unrelated felony conviction, was charged with conspiracy to commit the burglary of Kelman’s residence. The conspiracy charges against Bretz were dismissed at trial for lack of credible evidence. He then applied for bail pending appeal of his other felony conviction. The application was denied. Bretz alleges the denial was caused by the prosecution of the conspiracy charge.

Bretz contends that the conspiracy charge was a scheme on the part of Kelman, the two burglars, two Great Falls policemen, and the City of Great Falls to prevent him from being granted bail. According to Bretz, Kelman, Lande, and Welborn staged the entire burglary in a scheme to implicate Bretz. They then convinced the two city police officers to threaten witnesses into giving false testimony. All five defendants allegedly committed perjury, threatened and coerced witnesses, and concealed and falsified evidence.

Bretz filed this action seeking damages under § 1983.1 Defendants moved to dismiss on a number of grounds, including failure to state a claim under Fed.R.Civ.P. 12(b)(6). Concluding that Bretz’ amended complaint stated only a state claim for malicious prosecution or defamation, the district court dismissed.

I.

A ruling on a motion to dismiss for failure to state a claim upon which relief can be granted is a ruling on a question of law. Alonzo v. ACF Property Management, Inc., 643 F.2d 578, 579 (9th Cir.1981). As a question of law, the district court’s decision is freely reviewable by the court of appeals. Id. Under Fed.R.Civ.P. 12(b)(6), a motion to dismiss for failure to state a claim should not be granted unless it appears to a certainty that plaintiff can prove no set of facts in support of his claim that would entitle him to relief. SEC v. Seaboard Corp., 677 F.2d 1315, 1316 (9th Cir.1982).

As a matter of pleading a § 1983 action, plaintiff must allege facts establishing a deprivation of rights secured by the Constitution or laws of the United States. Havas v. Thornton, 609 F.2d 372, 374 (9th [505]*505Cir.1979). In this circuit, facts alleging the common law tort of malicious prosecution alone are insufficient to state a deprivation of constitutional rights. Cline v. Brasett, 661 F.2d 108, 112 (9th Cir.1981); Paskaly v. Seale, 506 F.2d 1209, 1212 (9th Cir.1974). In Cline, however, this court recognized an exception “for malicious prosecutions conducted with the intent of denying a person equal protection or which otherwise subject a person to a denial of constitutional rights.” Cline, 661 F.2d at 112. The issue is, therefore, whether Bretz’ complaint can be construed to implicate any interests apart from those for which he has a remedy under the common law of malicious prosecution. If there are such additional interests, we must then inquire whether they are constitutionally protected. Cf. Parratt v. Taylor, 451 U.S. 527, 535-37, 101 S.Ct. 1908, 1913-14, 68 L.Ed.2d 420, 429-30 (1981) (emphasizing distinction between life, liberty, or property interest and the deprivation of that interest without due process).

Beyond the bare and wholly eon-clusory allegation that defendants’ conduct deprived him of due process and equal protection, Bretz specifically alleges three injuries: denial of bail pending appeal, damage to his reputation, and invasion of his privacy. None of the injuries alleged in this case infringes a constitutionally protected interest. There is no constitutional right to bail — pending appeal or otherwise — and the grant or denial of bail was within the sound discretion of the state trial court. Kelly v. Springett, 527 F.2d 1090, 1093 (9th Cir.1975); Wagner v. United States, 250 F.2d 804, 805 (9th Cir.1957). Nor has Bretz a constitutionally protected interest in his reputation. Paul v. Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976); Havas v. Thornton, 609 F.2d 372 (9th Cir.1979). As to Bretz’ privacy interest, the Supreme Court in Paul rejected the assertion that a right to be free from false accusation is included in the right of personal autonomy recognized in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). Paul, 424 U.S. at 713, 96 S.Ct. at 1166, 47 L.Ed.2d at 420-21. See also Havas v. Thornton, 609 F.2d at 375-76.

II.

The amended complaint vaguely implies that a liberty interest was implicated because Bretz was arrested, booked, fingerprinted, assigned a criminal identification number and charged with a criminal offense. Even assuming these minimal intrusions amount to a deprivation of liberty, we do not believe the deprivation was accomplished without due process.

The Supreme Court has decided that in a situation where there is no practical way to provide a pre-deprivation hearing, a post-deprivation hearing provided at a meaningful time and in a meaningful manner will suffice to satisfy the requirements of due process. Parratt v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981); Rutledge v. Arizona Bd. of Regents, 660 F.2d 1345 (9th Cir.1981). The very nature of the alleged deprivation to Bretz’ liberty interest precludes the possibility of a pre-deprivation hearing. Therefore, we must examine this case in light of the Supreme Court’s decision in Parratt.

In Cline v. Brussett, 661 F.2d 108

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Bluebook (online)
722 F.2d 503, 1983 U.S. App. LEXIS 14322, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lr-bretz-v-zollie-kelman-jack-r-lande-eugene-r-welborn-donald-ca9-1983.