and Submitted August 15, 2018 San Francisco, California
from the United States District Court for the District of
Arizona D.C. No. 4:15-cv-00152-RM Rosemary Márquez,
District Judge, Presiding
J. Davis (argued), Deputy County Attorney, Civil Division,
Pima County Attorney's Office, Tucson, Arizona, for
P. Leader (argued), Leader Law Firm, Tucson, Arizona; Timothy
P. Stackhouse, Peter Timoleon Limperis, and Lindsay E. Brew,
Miller Pitt Feldman & McAnally P.C., Tucson, Arizona; for
Before: Mary M. Schroeder, Eugene E. Siler, [*] and Susan P.
Graber, Circuit Judges.
panel dismissed, in part, an interlocutory appeal and
affirmed, in part, the district court's order granting a
motion to dismiss in an action brought pursuant to 42 U.S.C.
§ 1983 alleging violations of plaintiff's
constitutional rights to due process and a fair trial.
1972, a jury convicted plaintiff in state court of 28 counts
of felony murder on the theory that he had started a deadly
fire at a Tucson hotel. In 2012, while still in prison,
plaintiff filed a state post-conviction petition advancing
newly discovered evidence that arson did not cause
the hotel fire. The government and plaintiff entered into a
plea agreement in 2013 under which the original convictions
were vacated and, in their place, plaintiff pleaded no
contest to the same counts, was resentenced to time served,
and was released from prison. Plaintiff then brought his 42
U.S.C. § 1983 action against Pima County and the City of
Tucson. The district court held that the County of Pima was
not entitled to Eleventh Amendment immunity, but that
plaintiff could not recover damages for wrongful
panel first gave deference to this court's previous
order, issued by a motions panel, which denied the
County's application for permission to appeal the denial
of immunity pursuant to 28 U.S.C. § 1292(b). The panel
further concluded that it lacked jurisdiction over the
County's appeal under § 1291's collateral-order
doctrine because the County appealed only from a denial of
immunity from liability, as opposed to immunity from suit.
panel exercised its discretion under 28 U.S.C. § 1292(b)
to review the issue of whether plaintiff could recover
compensatory damages for wrongful incarceration. The panel
noted that a plaintiff in a § 1983 action may not
recover incarceration-related damages for any period of
incarceration supported by a valid, unchallenged conviction
and sentence. The panel held that because plaintiff's
valid 2013 conviction and sentence were the sole legal causes
of his incarceration, he could not recover damages.
Judge Graber wrote separately to explain that in Cortez
v. County of Los Angeles, 294 F.3d 1186 (9th Cir. 2002),
this court wrongly exercised jurisdiction over an
interlocutory appeal in similar circumstances, and that, in
an appropriate case, the court should overrule
Cortez in its en banc capacity.
in part, Judge Schroeder wrote that the panel's decision
that plaintiff could not recover compensatory damages
magnified an already tragic injustice. Judge Schroeder stated
that plaintiff accepted the 2013 plea offer because his only
alternative was to stay in prison and wait for his petition
for collateral relief to wend its way through the courts, a
process that could take years.
GRABER, CIRCUIT JUDGE.
1972, a jury convicted Louis Taylor in Arizona state court of
28 counts of felony murder, on the theory that he had started
a deadly fire at a Tucson hotel. In 2012, while still in
prison, Taylor filed a state post-conviction petition
advancing newly discovered evidence: an expert, using new and
more sophisticated investigative techniques, determined that
arson did not cause the hotel fire. The government
disputed Taylor's new theory but nevertheless agreed to
the following procedure. The government and Taylor entered
into a plea agreement in 2013 under which the original
convictions were vacated and, in their place, Taylor pleaded
no contest to the same counts, was resentenced to time
served, and was released from prison.
then sued Pima County and the City of Tucson in state court,
under 42 U.S.C. § 1983, alleging violations of his
constitutional rights to due process and a fair trial. With
respect to the County, Taylor alleged unconstitutional
practices, policies, and customs regarding criminal
prosecutions, including racially motivated prosecutions of
African-Americans and a failure to train and supervise deputy
prosecutors. The City removed the case to federal court, and
the County consented to removal.
County then moved to dismiss Taylor's operative
complaint. Two of the County's arguments are relevant on
appeal. First, the County argued that the relevant government
officials acted on behalf of the State, not the County; the
County asserted that, accordingly, it was entitled to
"Eleventh Amendment immunity." Second, the County
argued that, because all of Taylor's time in prison was
supported by the valid 2013 criminal judgment, Taylor could
not recover damages for wrongful incarceration.
district court granted in part and denied in part the motion
to dismiss. The court held that the County was not entitled
to Eleventh Amendment immunity. But the court agreed with the
County that Taylor could not recover damages for wrongful
incarceration. The district court then certified its order
for interlocutory appeal pursuant to 28 U.S.C. §
1292(b), concluding that resolution of several legal issues
"may materially advance the ultimate termination of the
parties applied to this court for permission to appeal.
See 28 U.S.C. § 1292(b) (permitting an
"application for an appeal hereunder"). The County
sought permission to appeal the district court's denial
of immunity, and Taylor sought permission to appeal the
district court's ruling that he may not recover damages
for wrongful incarceration.
motions panel of this court denied both applications to
appeal pursuant to § 1292(b). But the motions panel
construed the County's application, in part, as a timely
notice of appeal from the denial of Eleventh Amendment
immunity from suit. See Cortez v. County of Los
Angeles, 294 F.3d 1186, 1188 (9th Cir. 2002) (holding
that we have appellate jurisdiction under the
collateral-order doctrine over a denial of Eleventh Amendment
immunity from suit (citing Puerto Rico Aqueduct &
Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139,
147 (1993))). The motions panel therefore ordered that the
appeal proceed under the collateral-order doctrine of 28
U.S.C. § 1291.
accordance with that order, the parties then filed briefs
addressing the issue of the County's asserted immunity
under the Eleventh Amendment. At our request, the parties
also filed supplemental briefs addressing whether Taylor may
recover damages for wrongful incarceration.