Farrow v. Lipetzky

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

Case No. 12-cv-06495-JCS

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

April 28, 2017

ORDER REGARDING MOTION TO DISMISS THIRD AMENDED COMPLAINT

Re: Dkt. No. 93

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 ofDefendant'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 ...