John Farrow v. Contra Costa County ( 2020 )

FILED
NOT FOR PUBLICATION
MAR 30 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN FARROW, on his behalf, and on No. 19-15152
behalf of all others similarly situated;
JEROME WADE, on their behalf, and on D.C. No. 3:12-cv-06495-JCS
behalf of others similarly situated,
Plaintiffs-Appellants, MEMORANDUM*
v.
CONTRA COSTA COUNTY,
Defendant-Appellee,
and
ROBIN LIPETZKY, Contra Costa County
Public Defender,
Defendant.
Appeal from the United States District Court
for the Northern District of California
Joseph C. Spero, Magistrate Judge, Presiding
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Submitted March 26, 2020**
San Francisco, California
Before: GOULD, CHRISTEN, and BRESS, Circuit Judges.
Appellants John Farrow and Jerome Wade appeal from the district court’s
order granting Contra Costa County’s motion for summary judgment in a § 1983
action alleging Sixth Amendment violations based on the failure to provide
counsel. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.1
1. The district court dismissed the plaintiffs’ § 1983 claim premised on a
Sixth Amendment violation for failure to provide counsel at a critical stage because
the court determined it was barred by Heck v. Humphrey, 512 U.S. 477 (1994).
The plaintiffs waive their challenge to this ruling by not arguing this issue in their
opening brief. See Austin v. Univ. of Oregon, 925 F.3d 1133, 1138-39 (9th Cir.
2019).
2. Whether framed as a policy or practice, the plaintiffs do not establish the
district court erred by ruling that there was insufficient evidence the County
violated the Sixth Amendment rights of criminal defendants by failing to provide
counsel “within a ‘reasonable time after attachment to allow for adequate
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
1
Because the parties are familiar with the facts and procedural history of
this case, we do not recite them here.
2
representation at any critical stage before trial.’” Farrow v. Lipetzky, 637 F. App’x
986, 988 (9th Cir. 2016) (quoting Rothgery v. Gillespie County, 554 U.S. 191, 212
(2008)). The plaintiffs also do not challenge the district court’s ruling that they did
not show they suffered a Sixth Amendment violation based on their own
experiences with delayed provision of counsel. See generally Bucklew v. Precythe,
139 S. Ct. 1112, 1127 (2019).
3. The plaintiffs separately challenge the district court’s exclusion of expert
evidence at summary judgment pursuant to Federal Rule of Evidence 702, but they
do not establish that the court abused its discretion. See Gen. Elec. Co. v. Joiner,
522 U.S. 136, 143 (1997).
AFFIRMED.
3