Detrice Garmon v. County of Los Angeles

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DETRICE GARMON, No. 12-55109
Plaintiff-Appellant,
D.C. No.
v. 2:10-cv-06609-SJO-PJW
COUNTY OF LOS ANGELES;
STEVE COOLEY, individually OPINION
and in his official capacity;
DEPUTY DA MICHELLE
HANISEE, individually and
in her official capacity;
KAISER PERMANENTE,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted May 2, 2016
Pasadena, California
Filed July 5, 2016
2 GARMON V. COUNTY OF LOS ANGELES
Before: Milan D. Smith, Jr. and Jacqueline H. Nguyen,
Circuit Judges, and Claudia Wilken,* Senior District Judge.
Opinion by Judge Wilken
SUMMARY**
Civil Rights
The panel reversed in part the district court’s dismissal of
a civil rights action brought by a plaintiff who was an alibi
witness in her son’s murder trial.
Because the plaintiff was scheduled to undergo brain
surgery with an uncertain outcome, her deposition was taken.
She authorized her medical provider to disclose to the
prosecution medical records related to her brain tumor. The
lead prosecutor instead subpoenaed all of her medical
records, erroneously representing that the plaintiff was the
murder victim. The plaintiff ultimately testified at her son’s
trial, and the prosecutor used her medical records to
undermine her credibility.
The panel held that the prosecutor and her supervisor, the
Los Angeles County District Attorney, were not entitled to
*
The Honorable Claudia Wilken, Senior District Judge for the U.S.
District Court for the Northern District of California, sitting by
designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
GARMON V. COUNTY OF LOS ANGELES 3
absolute immunity for the prosecutor’s misrepresentations
in her declaration supporting the subpoena application.
Following other circuits, the panel declined to adopt a rule
that absolute prosecutorial immunity is unavailable against
claims of unindicted third-party witnesses. The panel held
that the prosecutor was absolutely immune for issuing the
subpoena and for using the plaintiff’s medical information at
trial. She was entitled to qualified immunity, at most, for her
declaration. The supervising attorney was immune to the
same extent as the prosecutor.
The panel held that the district court abused its discretion
by denying the plaintiff leave to amend her claim under 42
U.S.C. § 1983 against the County of Los Angeles to allege
that actions pursuant to the County’s policy or custom caused
her injuries.
The panel held that the county, the district attorney, and
the prosecutor were not entitled to state statutory immunity
because the claims against them were not malicious
prosecution claims.
The panel also reversed the dismissal of state law claims
against the medical provider. It remanded the case to the
district court.
COUNSEL
Brian K. Morris (argued) and Julia A. Vogelzang, Duane
Morris LLP, San Diego, California, for Plaintiff-Appellant.
Millicent L. Rolon (argued), Principal Deputy County
Counsel; Roger H. Granbo and Jennifer A.D. Lehman,
4 GARMON V. COUNTY OF LOS ANGELES
Assistant County Counsel; John F. Krattli, County Counsel;
Mary C. Wickham, Interim County Counsel; Los Angeles
County Counsel, Los Angeles, California; for Defendants-
Appellees County of Los Angeles, Steve Cooley and Michele
Hanisee.
David P. Pruett (argued), Brenda M. Ligorsky, and Michael
J. Trotter; Carroll, Kelly, Trotter, Franzen, McKenna &
Peabody, Long Beach, California; for Defendant-Appellee
Southern California Permanente Medical Group.
OPINION
WILKEN, Senior District Judge:
Plaintiff-Appellant Detrice Garmon was an alibi witness
in her son’s murder trial.1 Because she was scheduled to
undergo brain surgery with an uncertain outcome, her
deposition was taken pursuant to state court procedure. She
authorized Defendant-Appellee Southern California
Permanente Medical Group (“Kaiser”) to disclose to the
prosecution medical records related to her brain tumor. The
next day, Defendant-Appellee Los Angeles County Deputy
District Attorney Michele Hanisee, the lead prosecutor,
issued a subpoena duces tecum to Kaiser instead requesting
all of Garmon’s medical records. Hanisee provided a
declaration in support of the application for the subpoena
duces tecum, erroneously representing that Garmon was the
murder victim in her son’s trial. Garmon ultimately testified
1
All facts are taken from the underlying complaint and from documents
which are attached to the briefs on the underlying motion to dismiss.
GARMON V. COUNTY OF LOS ANGELES 5
at her son’s trial, and Hanisee used Garmon’s medical records
from Kaiser to undermine Garmon’s credibility.
Garmon, acting pro se, filed a complaint in district court
for monetary damages under 42 U.S.C. § 1983 and several
state law causes of action against Hanisee and Kaiser, and
against Defendants-Appellees Steve Cooley, the Los Angeles
County District Attorney at the time of the trial, and the
County of Los Angeles. Hanisee, Cooley and the County are
referred to as the “County Defendants.” Garmon later filed
a First Amended Complaint, which is the operative
complaint. The court dismissed all causes of action against
the County Defendants with prejudice and against Kaiser
without prejudice.
We reverse in part and remand for further proceedings.
Hanisee and Cooley are not entitled to absolute immunity for
Hanisee’s misrepresentations in her declaration supporting
the application for the subpoena duces tecum. Further, the
court abused its discretion by denying Garmon leave to
amend her § 1983 claim against the County. The County
Defendants are not entitled to the claimed state statutory
immunity because the claims against them are not malicious
prosecution claims. Finally, because we reverse the dismissal
of certain federal claims, we reverse the district court’s
dismissal of state law claims against Kaiser.
I. Background
A. Underlying Facts
The release Garmon signed encompassed “Information
Regarding Specific Injury or Treatment (from 1/08 to
6 GARMON V. COUNTY OF LOS ANGELES
Present),” x-ray reports and “only information regarding
tumor in pituitary gland.”
Hanisee mailed a subpoena duces tecum to Kaiser with a
cover letter, which erroneously stated that Garmon was the
victim in a murder prosecution. Hanisee evoked a federal
regulation under the Health Insurance Portability and
Accountability Act (HIPAA) that permits disclosure without
the consent or notification of the subject of the subpoena.
The subpoena commanded Kaiser to produce the documents
in its custody “described in the copy of the application for
subpoena duces tecum attached hereto which is incorporated
herein by reference.” The application attached to the
subpoena requested “[a]ny and all medical records for
DETRICE GARMON,” and explained that the “medical
records will indicate the character and extent of the injuries
inflicted upon DETRICE GARMON and are necessary to
establish the elements of the charged crime.” The application
provided that the statements contained therein were true and
correct under penalty of perjury. Accordingly, Kaiser
produced all of Garmon’s medical records, not just those
subject to Garmon’s consent, and did not notify Garmon.
When Garmon testified at her son’s trial, Hanisee
“published all of [Garmon’s] medical records that she had
subpoenaed from Kaiser Permanente,” without redacting
them, “for the sole purpose of discrediting [Garmon’s]
testimony.” Garmon’s son was ultimately convicted of
murder.
B. Procedural History
A magistrate judge issued a Report and Recommendation
(R&R) on County Defendants’ motion to dismiss; the court
GARMON V. COUNTY OF LOS ANGELES 7
adopted it in full. The R&R concluded that, under Imbler v.
Pachtman, 424 U.S. 409 (1976), Hanisee and Cooley were
absolutely immune from suit in their personal capacities.
Further, because they were representatives of the State, they
could not be sued in their official capacities. With regard to
the claim against the County, the R&R explained that
Garmon alleged that Hanisee’s improper conduct violated
county policy; a § 1983 claim against a municipality such as
a county requires that the misconduct be pursuant to county
policy. The R&R recommended that, because amending her
complaint to state the latter would necessarily contradict the
operative complaint, leave to amend be denied.
Next, the R&R concluded that County Defendants were
immune under California Government Code sections 821.6
and 815.2 from suit for Garmon’s state law claims.
Finally, the R&R proposed the dismissal of the claims
against Kaiser. It explained that there is no private cause of
action under HIPAA, and that Kaiser was not amenable to
suit under § 1983 for producing Garmon’s records. Because
Garmon alleged no federal cause of action against Kaiser, and
because the R&R recommended dismissing the federal claims
against County Defendants, the R&R recommended declining
to exercise supplemental jurisdiction over Garmon’s state law
claims against Kaiser.
Garmon timely appealed.2 We have jurisdiction under
28 U.S.C. §§ 1331, 1367(a) and 1291.
2
Garmon sued Hanisee and Cooley in their official and personal
capacities. She does not appeal the dismissal of the official-capacity
claims.
8 GARMON V. COUNTY OF LOS ANGELES
II. Standards of Review
We review de novo a district court’s dismissal of a
complaint for absolute immunity. Olsen v. Idaho State Bd. of
Med., 363 F.3d 916, 922 (9th Cir. 2004). In conducting the
review, we accept the factual allegations of the operative
complaint, as well as the documents to which it refers, as true
and construe them in the light most favorable to the plaintiff.
See AE v. Cty. of Tulare, 666 F.3d 631, 636 (9th Cir. 2012);
Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006).
We review for abuse of discretion the district court’s
denial of leave to amend. AE, 666 F.3d at 636. “A district
court abuses its discretion by denying leave to amend unless
amendment would be futile or the plaintiff has failed to cure
the complaint’s deficiencies despite repeated opportunities.”
Id.We review de novo a district court’s interpretation of state
law. See JustMed, Inc. v. Byce, 600 F.3d 1118, 1125 (9th Cir.
2010).
III. Discussion
A. Federal Prosecutorial Immunity
1. Absolute Immunity
Prosecutorial immunity applies to § 1983 claims. Imbler,
424 U.S. at 427. State prosecutors are absolutely immune
from § 1983 actions when performing functions “intimately
associated with the judicial phase of the criminal process,” id.
at 430, or, phrased differently, “when performing the
traditional functions of an advocate.” Kalina v. Fletcher,
GARMON V. COUNTY OF LOS ANGELES 9
522 U.S. 118, 131 (1997). “Prosecutors are entitled to
qualified immunity, rather than absolute immunity, when they
perform administrative functions, or ‘investigative functions
normally performed by a detective or police officer.’”
Genzler v. Longanbach, 410 F.3d 630, 636 (9th Cir. 2005)
(quoting Kalina, 522 U.S. at 126).
In determining whether actions of government officials
are entitled to absolute immunity, or only subject to qualified
immunity, we focus on “the nature of the function
performed.” Buckley v. Fitzsimmons, 509 U.S. 259, 269
(1993) (quoting Forrester v. White, 484 U.S. 219, 229
(1988)). Absolute immunity applies when “initiating a
prosecution” and “presenting the State’s case,” Imbler,
424 U.S. at 431, and during “professional evaluation of the
evidence assembled by the police and appropriate preparation
for its presentation at trial . . . after a decision to seek an
indictment has been made,” Buckley, 509 U.S. at 273. By
contrast, absolute immunity does not apply when a prosecutor
“gives advice to police during a criminal investigation,”
“makes statements to the press,” or “acts as a complaining
witness in support of a[n arrest] warrant application.” Van de
Kamp v. Goldstein, 555 U.S. 335, 343 (2009) (citations
omitted). When considering acts of obtaining evidence, we
look to the goal of the action to determine its function. See
Torres v. Goddard, 793 F.3d 1046, 1053 (9th Cir. 2015)
(distinguishing seeking a warrant to obtain evidence to
prosecute an indictment, which is protected by absolute
immunity, from seeking a warrant to obtain evidence as
“collateral investigation into new crimes,” which is not
protected by absolute immunity).
Absolute immunity “is an extreme remedy, and it is
justified only where ‘any lesser degree of immunity could
10 GARMON V. COUNTY OF LOS ANGELES
impair the judicial process itself.’” Lacey v. Maricopa Cty.,
693 F.3d 896, 912 (9th Cir. 2012) (en banc) (quoting Kalina,
522 U.S. at 127). The “official seeking absolute immunity
bears the burden of showing that such immunity is justified
for the function in question.” Burns v. Reed, 500 U.S. 478,
486 (1991) (citing Forrester, 484 U.S. at 224).
2. Third-Party Witness Plaintiffs
Garmon argues that we should adopt a rule that absolute
prosecutorial immunity is unavailable against claims of
unindicted third-party witnesses.3 She cites no circuit court
opinion adopting such a rule and we decline to do so here.
The Seventh Circuit declined to adopt such a rule
because, in Imbler, the Court “at least implied that
prosecutorial immunity also applies to suits by witnesses . . .
by focusing on whether the acts complained of were within
the scope of the prosecutorial function rather than on the
identity of the plaintiff.” Daniels v. Kieser, 586 F.2d 64, 69
(7th Cir. 1978). The Second Circuit also declined to adopt
such a distinction, quoting the reasoning in Daniels and
emphasizing that in either case the “fundamental question” of
whether the activity occurred while “acting as an advocate in
a judicial proceeding” remains the same. Betts v. Richard,
726 F.2d 79, 81 (2d Cir. 1984) (citation omitted). See also
3
In al-Kidd v. Ashcroft, 580 F.3d 949 (9th Cir. 2009), rev’d on other
grounds, 563 U.S. 731 (2011), we held that “when a prosecutor seeks a
material witness warrant in order to investigate or preemptively detain a
suspect, rather than to secure his testimony at another’s trial, the
prosecutor is entitled at most to qualified, rather than absolute, immunity.”
Id. at 963. However, our inquiry focused on whether the action was
investigative or prosecutorial, rather than on the plaintiff’s role. Id. at
958–64.
GARMON V. COUNTY OF LOS ANGELES 11
Adams v. Hanson, 656 F.3d 397, 403–04 (6th Cir. 2011)
(granting absolute immunity where plaintiff was a third-party
witness and amicus had argued that absolute immunity
therefore should not apply).4
We are persuaded by the reasoning of the Seventh,
Second and Sixth Circuits.
3. Hanisee’s Immunity
Construed in the light most favorable to Garmon, the
operative complaint alleges three acts performed by Hanisee:
issuing the subpoena duces tecum, drafting its supporting
declaration and publicizing Garmon’s medical records at trial
to discredit her testimony. Garmon does not dispute that
Hanisee is entitled to absolute immunity for performing the
“traditional functions of an advocate” when using Garmon’s
medical information at trial. See Kalina, 522 U.S. at 131.
We conclude that Hanisee is absolutely immune for issuing
the subpoena duces tecum, but that the district court erred in
granting absolute immunity to Hanisee for the accompanying
declaration.
Hanisee is entitled to absolute immunity for issuing the
subpoena duces tecum to Kaiser because a “prosecutor
gathering evidence is more likely to be performing a quasi-
judicial advocacy function when the prosecutor is
‘organiz[ing], evaluat[ing], and marshaling [that] evidence’
4
Adams distinguished Odd v. Malone, 538 F.3d 202 (3d Cir. 2008), a
Third Circuit case in which the court concluded that a prosecutor was not
entitled to absolute immunity in a third-party-witness-plaintiff case,
because the offending actions were “administrative tasks,” rather than
prosecutorial tasks. Adams, 656 F.3d at 403, 406.
12 GARMON V. COUNTY OF LOS ANGELES
in preparation for a pending trial, in contrast to the police-like
activity of ‘acquiring evidence which might be used in a
prosecution.’” Genzler, 410 F.3d at 639 (quoting Barbera v.
Smith, 836 F.2d 96, 100 (2d Cir. 1987)) (alterations in
original). Although issuing a subpoena is necessarily an
evidence-gathering action, here it was issued in preparation
for evaluating and countering a defense witness’s testimony.
In light of the timing and context, it is clear that Hanisee’s
subpoena was directed at obtaining evidence in preparation
for trial. Thus, absolute immunity properly applies to this
act.5
However, the district court erred in concluding that
Hanisee is entitled to absolute immunity for presenting a false
statement in a declaration supporting her application for the
subpoena duces tecum.
In Kalina, the Supreme Court distinguished the
preparation and filing of charging documents from the
execution of a supporting certification “under penalty of
perjury,” holding that the latter is not protected by absolute
5
Appellant also argues that, as in Lacey, Hanisee evaded the judicial
process in issuing the subpoena. That case concerned a prosecutor who
neither obtained the grand jury’s prior consent before issuing a subpoena
nor notified both the grand jury’s foreperson and the presiding judge
within ten days of issuing the subpoena, as Arizona law required. The
Ninth Circuit concluded that absolute immunity was inappropriate because
the prosecutor “side-stepped the judicial process.” Lacey, 693 F.3d at 914.
However, this case is distinguishable because, unlike Arizona law,
California criminal subpoena law does not require judicial oversight
before issuance. Rather, judicial oversight does not occur until after the
sealed documents are delivered or opened in court. See People v. Blair,
25 Cal. 3d 640, 651 (1979). Further, although Hanisee may have misled
Kaiser with regard to HIPAA requirements, she did not side-step the
judicial process by issuing the subpoena.
GARMON V. COUNTY OF LOS ANGELES 13
immunity. 522 U.S. at 128–29. There, the prosecutor was
acting under Washington state law, which required that an
arrest warrant be supported by an affidavit or sworn
testimony. Id. at 129. However, the Court explained, it was
not necessary for the prosecutor to provide that testimony;
rather, the prosecutor “performed an act that any competent
witness might have performed.” Id. at 129–30. No
prosecutorial judgment could “affect the truth or falsity of the
factual statements themselves. Testifying about facts is the
function of the witness, not of the lawyer.” Id. at 130. Thus,
when executing the affidavit, the prosecutor in Kalina was
not performing the traditional function of an advocate. Id. at
131. Following Kalina, we explained that “a prosecutor
sheds absolute immunity when she acts as a ‘complaining
witness’ by certifying that the facts alleged within an affidavit
are true.” Waggy v. Spokane Cty., 594 F.3d 707, 711 (9th Cir.
2010); see also Cruz v. Kauai Cty., 279 F.3d 1064, 1067–68
(9th Cir. 2002) (holding that a prosecutor was not entitled to
absolute immunity for swearing to facts in support of a bail
revocation motion).
The circumstances here are similar to those in Kalina.
Under California law, like Washington law as described in
Kalina, the party filling out and issuing the subpoena need
not be an attorney. People v. Blair, 25 Cal. 3d 640, 648 n.6
(1979) (noting that, under California Penal Code section
1326, a subpoena duces tecum to a third party in a criminal
proceeding may be issued by the “clerk of the court in which
the action is to be tried, the district attorney, or his
investigator, among others”). Further, like the prosecutor in
Kalina, Hanisee’s declaration states particular facts under
penalty of perjury, making her more akin to a witness than a
prosecutor in this function. Thus, following Kalina, Hanisee
14 GARMON V. COUNTY OF LOS ANGELES
is not entitled to absolute immunity for her declaration in
support of the subpoena.
In sum, the district court erred in concluding that Hanisee
is absolutely immune from suit here. We conclude that she
is entitled to absolute immunity for issuing the subpoena and
using the medical records at trial, but to qualified immunity,
at most, for her declaration.
4. Cooley
An attorney supervising a trial prosecutor who is
absolutely immune is also absolutely immune. Van de Kamp,
555 U.S. at 345–46. So are prosecutors who conducted
“general office supervision or office training.” Id. at 346–48.
“But nothing in Van de Kamp permits us to grant a
supervising prosecutor absolute immunity for supervising an
activity that’s not protected by absolute immunity under
Imbler and its progeny.” Torres, 793 F.3d at 1058. Thus,
Cooley is immune to the same extent as Hanisee.
B. Federal Claim Against County
The district court was correct that the allegations in the
operative complaint are insufficient to state a § 1983 claim
against the County, but it abused its discretion in denying
leave to amend.
Section 1983 applies to the County of Los Angeles. See
Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 690 (1978).
However, plaintiffs “who seek to impose liability on local
governments under § 1983 must prove that ‘action pursuant
to official municipal policy’ caused their injury.” Connick v.
GARMON V. COUNTY OF LOS ANGELES 15
Thompson, 563 U.S. 51, 60–61 (2011) (quoting Monell,
436 U.S. at 691).
Appellant’s operative complaint does not sufficiently
allege that actions pursuant to the County’s policy or custom
caused her injuries. Appellant does not dispute this
determination. Instead, she argues that she should have been
granted leave to amend.
A district court does not abuse its discretion in denying
leave to amend where it would have been impossible for the
plaintiff to amend the complaint to state a viable claim
“without contradicting any of the allegations of his original
complaint.” Reddy v. Litton Indus., Inc., 912 F.2d 291,
296–97 (9th Cir. 1990). Here, the district court abused its
discretion because the operative complaint could be construed
to encompass multiple theories of § 1983 municipal liability,
some of which would not necessarily be contradicted in an
amended complaint.
A local government may be liable under § 1983 for an
official’s conduct where the official had final policymaking
authority concerning the action at issue, and where the
official was the policymaker for the local governing body for
the purposes of the particular act. Goldstein v. City of Long
Beach, 715 F.3d 750, 753 (9th Cir. 2013). In fact, a
municipality may be liable for an “isolated constitutional
violation when the person causing the violation has final
policymaking authority.” Lytle v. Carl, 382 F.3d 978, 983
(9th Cir. 2004) (citation omitted). A municipality’s failure to
train its employees may also constitute an actionable policy
or custom under § 1983 if it amounts to deliberate
indifference to the rights of persons with whom the untrained
employees come into contact. Connick, 563 U.S. at 61.
16 GARMON V. COUNTY OF LOS ANGELES
A pro se complaint must be held to less stringent
standards than formal pleadings drafted by an attorney.
Estelle v. Gamble, 429 U.S. 97, 106 (1976). “This rule is
particularly important in civil rights cases.” Ferdik v.
Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). Because
Garmon filed her operative complaint pro se, we “construe
the pleadings liberally” and afford her “the benefit of any
doubt.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010)
(quoting Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir.
1985) (en banc)). Although the operative complaint states
that Garmon is suing the County Defendants for violating a
county policy, it includes other allegations that might support
viable theories for county liability. For example, the
operative complaint states that “Steve Cooley . . . is [a] policy
maker for the District Attorney’s office.” An amended
complaint could add allegations to bolster a claim that the
facts alleged constitute an isolated constitutional violation
stemming from Cooley’s actions as a final policymaker. See
Lytle, 382 F.3d at 983. The operative complaint also states
that Hanisee, “acting on behalf of the County of Los Angeles
. . . acted negligently . . . by misusing the power of her
office.” Garmon might be able to allege more facts that
would support a claim that Hanisee’s actions were performed
as a final policymaker. Likewise, the operative complaint
alleges claims for “Negligent training” and “Negligent
supervision.” Garmon could allege additional facts relating
to the County’s failure to train and supervise. See Connick,
563 U.S. at 61.
Allegations based on these theories could be consistent
with the operative complaint, rather than necessarily
inconsistent with it as the district court concluded. Thus, it
was an abuse of discretion to deny leave to amend. The court
shall grant Garmon leave to amend on remand.
GARMON V. COUNTY OF LOS ANGELES 17
C. State Immunity for County Defendants
Next, we turn to Garmon’s state law claims, which the
district court dismissed based on state statutory immunity.
California Government Code section 821.6 states: “A public
employee is not liable for injury caused by his instituting or
prosecuting any judicial or administrative proceeding within
the scope of his employment, even if he acts maliciously and
without probable cause.” The County’s immunity would
follow from Hanisee’s and Cooley’s immunity. See Cal.
Gov’t Code § 815.2.
“When interpreting state law, a federal court is bound by
the decision of the highest state court.” Hewitt v. Joyner,
940 F.2d 1561, 1565 (9th Cir. 1991) (citation omitted). In
Sullivan v. County of Los Angeles, 527 P.2d 865, 871 (Cal.
1974), the California Supreme Court interpreted section 821.6
as “confining its reach to malicious prosecution actions.” It
is true that, since Sullivan, California Courts of Appeal have
interpreted section 821.6 more expansively. See, e.g., Kayfetz
v. State, 156 Cal. App. 3d 491, 497 (1984) (“section 821.6 is
not limited to suits for damages for malicious prosecution,
although that is a principal use of the statute”); Amylou R. v.
Cty. of Riverside, 28 Cal. App. 4th 1205, 1211 (1994)
(explaining that “the section clearly extends to proceedings
which were not initiated out of a malicious intent, and thus
would not constitute malicious prosecution”). Nonetheless,
several district courts within this circuit have read Sullivan to
mean that section 821.6 applies only to malicious prosecution
claims, in spite of the California Courts of Appeal decisions.
See, e.g., Dinius v. Perdock, 2012 WL 1925666, at *8–*9
(N.D. Cal. May 24, 2012) (agreeing “with the California
Supreme Court’s decision in Sullivan and find[ing] that
Section 821.6 only applies to claims for malicious
18 GARMON V. COUNTY OF LOS ANGELES
prosecution” after noting that Sullivan’s holding “has been
distinguished by numerous California Court of Appeal
decisions”); Williams v. City of Merced, 2013 WL 498854, at
*17 (E.D. Cal. Feb. 7, 2013) (same).
The court “must determine what meaning the state’s
highest court would give the statute in question.” Goldman
v. Standard Ins. Co., 341 F.3d 1023, 1026 (9th Cir. 2003).
We think the California Supreme Court would adhere to
Sullivan even though California Courts of Appeal have
strayed from it. Sullivan explained that section 821.6
expressly continued the existing immunity of public
employees against malicious prosecution claims and noted
that “no statute impose[d] liability on public entities for
malicious prosecution.” Sullivan, 527 P.2d at 871. Further,
the cases the legislative history cited focused on malicious
prosecution claims. Id.Because the California Supreme Court has already spoken
on this issue, we follow Sullivan and we reverse and hold that
the district court erred in dismissing the state law claims
against County Defendants because the claims against them
are not malicious prosecution claims.
D. Kaiser
We agree with the district court that the operative
complaint stated no federal claims against Kaiser. Appellant
does not challenge this ruling. The operative complaint also
mentions a violation of HIPAA. However, “HIPAA itself
provides no private right of action.” Webb v. Smart
Document Sols., LLC, 499 F.3d 1078, 1081 (9th Cir. 2007).
GARMON V. COUNTY OF LOS ANGELES 19
The district court dismissed all claims against Kaiser
based on lack of supplemental jurisdiction, because it had
dismissed all of the federal claims in the operative complaint.
Kaiser does not dispute that supplemental jurisdiction is
appropriate if any federal claim against County Defendants
survives. Because we reverse the dismissal of certain federal
claims against County Defendants, we reverse the district
court’s dismissal of claims against Kaiser.
IV. Conclusion
The district court erred by granting Hanisee and Cooley
absolute immunity for Hanisee’s declaration, dismissing
Garmon’s federal claim against the County without leave to
amend, dismissing the state claims against County
Defendants under California Government Code section 821.6,
and dismissing the state law claims against Kaiser. For all
the foregoing reasons, we REVERSE in part and REMAND.