EDMUND F. BRENNAN, Magistrate Judge.
Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C § 1983. The court previously granted plaintiff summary judgment as to liability. ECF No. 74. The question of damages remains to be determined, both as to causation and the amount of damages. Additionally, plaintiff has requested appointment of counsel. Id.; ECF No. 150. The motion for appointment of counsel will be granted. Further, it is recommended that the court proceed as provided below as to the determination of the damages issues.
Plaintiff initiated this action by filing a verified complaint on July 23, 2002. ECF No. 1. The complaint alleged that in November and December of 1999, defendants violated his First Amendment right of access to the courts by denying him photocopies of documents he sought to attach as exhibits to a habeas petition he filed in state superior court. Id.
The parties filed cross-motions for summary judgment (ECF Nos. 55, 64), and on August 20, 2007, the undersigned recommended that defendants' motion for summary judgment be denied and plaintiff's motion for summary judgment be granted as to liability. ECF No. 71. The assigned district judge adopted that recommendation on September 26, 2007. ECF No. 74. In so doing, the court found the following facts relevant here:
ECF No. 71 at 4-6. The court concluded that, as a consequence of defendant Robinson's refusal to copy plaintiff's exhibits, the state superior court denied the petition in part due to lack of supporting documentation and because plaintiff "made no offer of proof by way of additional evidence." Id. at 11-12.
After a trial confirmation hearing, the district judge remanded the case back to the undersigned to set a schedule for briefing as to damages, including whether the inclusion of plaintiff's exhibits with his state habeas petition would have altered the result of that petition, and how that issue impacts plaintiff's claim for damages. ECF Nos. 119, 120. The parties have submitted their damages briefs (ECF Nos. 129, 133, 143), which are addressed below.
The parties agree that plaintiff's damages will be much greater if it is determined that his state habeas petition would have been granted had the exhibits been included. ECF No. 133 at 35; ECF No. 129 at 37. However, it is not clear whether that determination should be made by a jury or judge. The parties also agree that, regardless of whether the state petition would have succeeded, plaintiff is owed nominal damages, some amount of compensatory damages, and potentially punitive damages. ECF No. 129 at 37-44; ECF No. 133 at 29-30. Thus, the remaining issues are: (1) whether plaintiff's state habeas petition would likely have succeeded with the exhibits attached; (2) whether that issue may be decided by the court rather than the jury; (3) whether plaintiff sustained any compensatory damages, and the amount thereof, from the deprivation of his right of access to the courts; and (4) the availability and amount of punitive damages. The undersigned concludes that the remaining substantive issues must be determined either through a motion for summary judgment or jury trial. Accordingly, these findings and recommendations will provide only a summary of the remaining issues but express no opinion on their resolution.
Plaintiffs who seek damages under § 1983 for alleged violations of their federal rights are entitled by the Seventh Amendment to the U.S. Constitution to have their claims determined by a jury. City of Monterey v. Del Monte Dunes, 526 U.S. 687, 709-10 (1999). Because plaintiff seeks the legal relief of monetary damages for the violation of a constitutional right, he is entitled to a jury trial, which he has requested. See id.; ECF No. 30 at 1.
Defendants ask that the court, rather than the jury, determine one major issue impacting the amount of plaintiff's damages—whether plaintiff's state habeas petition would have been successful if the exhibits had been attached. Defendants cite Smith v. Superior Court of San Luis Obispo County, 234 Cal.App.2d 1, 5 (1965), in which the court noted that there is no right to have a jury determine the merits of California state habeas petitions. While it is true that plaintiff had no right to have a jury determine the merits of his underlying habeas petition when it was filed in state court, and certainly no right to have a jury grant habeas relief, this does not mean that he has no right to have a jury consider the relative strength or weakness of that petition in order to determine the amount of compensatory damages, if any, plaintiff is owed in this § 1983 action. Defendants have cited no authority for so holding.
In arguing for a bench trial on this question, defendants characterize this § 1983 damages claim as presenting entirely legal, rather than factual, issues. Defendants are mistaken. There are plainly several factual issues which must be addressed in deciding damages, and the underlying causation question is merely one. Moreover, defendants' focus is misplaced. There is no right to jury trial in California state habeas actions not because they raise solely legal issues, but rather because such actions have traditionally been heard by the court without a jury and their governing statutes (in California as well as in federal court) do not provide for trial by jury. In re Hawthorne, 35 Cal.4th 40, 50 (2005) (noting that the state habeas statutes, particularly California Penal Code § 1484, provide for a judge or court to hear a habeas claim); Sigler v. Parker, 396 U.S. 482, 487 & fn. (1970) (Douglas, J., dissenting) (noting that the tradition that no jury sits in habeas actions has been codified in the federal habeas statutes at 28 U.S.C. § 2243). This tradition appears grounded in the historical division between judge and jury of legal and equitable remedies and the principle that the Seventh Amendment to the Constitution preserves the right to trial by jury in a civil matter only to the extent that it existed at common law or by statute prior to the adoption of the Constitution. U.S. Const., amend. VII; see Barry v. White, 64 F.2d 707 (1933). The grant of habeas relief involves the exercise of equitable remedies in the form of an order to compel the release of a petitioner, a remedy beyond the traditional purview of a jury.
Here, the question is one of monetary damages, not whether to order the plaintiff's release. The trier of fact must determine whether plaintiff can show by a preponderance of the evidence that he was actually injured (i.e., sustained damages) by the interference with his right of access to the courts when he was prevented from filing the papers required to support his petition. In so deciding, the trier of fact can consider whether the habeas claim appears to have been so weak that it would not likely have been granted even if his supporting exhibits had been timely filed. Likewise, it can consider whether that claim appears to have been strong enough that it likely would have been granted, and if so, award compensatory damages for the deprivation. Neither of these considerations requires the trier of fact to actually grant or deny habeas relief. Any consideration of the merits of the underlying state habeas petition is merely incidental to the determination of damages. In the analogous situation of a legal malpractice trial-within-a-trial, courts have found plaintiffs entitled to a jury on the question of damages, including whether the underlying trial would have succeeded, regardless of whether that underlying case would have been tried to a jury or other factfinder. Salisbury v. County of Orange, 131 Cal.App.4th 756, 764 (2005) ("Even where the underlying action is equitable, the right to jury trial in the legal malpractice case prevails."); Piscitelli v. Friedenburg, 87 Cal.App.4th 953, 970 (2001) (same).
Thus, whether plaintiff has suffered damages from the deprivation of a federally protected right appears to be factual question appropriate for the jury to consider and decide. Not unlike claims involving both equitable and damages remedies, in which the court decides issues material to the grant of injunctive or other equitable relief and a jury decides the damages issues, there is no reason why the jury cannot resolve the damages questions here.
In the damages brief, defendants are in essence arguing that there is no triable issue of material fact that plaintiff's state habeas petition would have failed. If defendants wish to expressly make that argument, they should seek to modify the scheduling order and file a motion for summary judgment of the issues they believe are appropriate for such disposition, providing the appropriate notice to plaintiff under Woods v. Carey, 684 F.3d 934 (9th Cir. 2012) and Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998).
Plaintiff's habeas petition raised six enumerated grounds for relief. ECF No. 153-2 at 7. In ground one, he actually articulated two distinct claims. First, he claimed that he was actually innocent of the charges, as shown by the fact that his victims "all recanted parts of their testimony and statements at various times during interviews and hearings." Id. at 28. Second, plaintiff claimed that his federal constitutional rights to a fair and impartial jury were violated by the misconduct of the foreperson. Id. at 33. The superior court denied relief on ground one because
ECF No. 59-4 at 13.
In ground two, plaintiff argued that the trial court violated his federal constitutional rights by denying access to some confidential records associated with the victims. ECF No. 59-3 at 3. The superior court denied relief on ground two because
ECF No. 59-4 at 13.
In ground three, plaintiff argued his federal constitutional rights were violated due to bias by the trial judge. ECF No. 59-3 at 11. The superior court denied relief on ground three because, "Petitioner makes reference to a sworn affidavit of George Hoffman which is not included as part of his petition, nor can it be found in the court file." ECF No. 59-4 at 13.
In ground four, plaintiff argued that his federal constitutional right to a jury chosen from a representative cross-section of the community had been violated. ECF No. 59-3 at 15. The superior court denied relief on this ground because
ECF No. 59-4 at 13.
In ground five, plaintiff argued that his trial counsel had rendered ineffective assistance by failing to properly investigate the veracity of a tape played at trial. ECF No. 153-2 at 65. Plaintiff listed many further alleged deficiencies of counsel, but did not provide any supporting explanation or argument. Specifically, plaintiff claimed that counsel should have: (1) asked "relevant questions [plaintiff] posed to him that could have strong bearing on the truth seeking process"; (2) communicated more with plaintiff; (3) considered strategy suggested by plaintiff; (4) called 33 unidentified defense witnesses; (5) presented school and CPS records pertaining to two of the victims; (6) subpoenaed "relevant police reports and transcripts of hearings pertinent to this case"; (7) had an investigator interview the victims and witnesses; (8) filed a demurrer regarding a crime "charged to have occurred [sic] in Colusa County"; (9) presented "a relevant defense" at the preliminary hearing; (10) hired several expert witnesses "to prove critical issues favorable to [the] defense"; (11) filed motions to dismiss for prosecutorial misconduct, "to have Attorney General prosecute case," for change of venue, to disqualify the judge, to view the crime scene, and "for vindictive prosecution;" and (12) impeached key witnesses, including McCormick, Fullmer, and Officer Rick Wagner. Id. at 65-67. In denying relief on ground five, the superior court stated,
ECF No. 59-4 at 14.
In ground six, plaintiff argued that the introduction of a tape recording at trial violated his federal constitutional and state statutory rights. ECF No. 153-2 at 75. In denying relief on this ground, the superior court stated, "This issue was addressed in petitioner's appeal. The court has reviewed the appellate decision and finds no basis conclude [sic] that it is not legally sound." ECF No. 59-4 at 14.
Relevant here, the superior court denied relief on grounds three and five with specific reference to a missing exhibit. The court additionally cited plaintiff's failure to offer proof in denying relief on grounds one and two. Thus, the focus here must be on whether the specifically cited exhibits or other documents plaintiff had asked defendants to copy would have changed the state court's decision on grounds one, two, three, or five. As the superior court did not rely on a failure of proof in denying relief on grounds four or six, the jury need not revisit those issues here (that is, there is no indication that any additional documentation would have altered the outcome on those particular grounds).
In his petition to the superior court, plaintiff argued that his conviction should be reversed because the inconsistent statements of the victims showed that he was innocent. ECF No. 153-2 at 28-33. Plaintiff argued that the victims had been coerced to fabricate their trial testimony. Id.
Defendants argue that the state court would have denied plaintiff's petition on this issue because it either was or could have been raised in plaintiff's direct appeal of his conviction. This argument is based on a state procedural rule summarized by the California Supreme Court in In re Harris, 5 Cal.4th 813 (1993). Under that rule, issues that could have been raised on appeal, as well as issues that actually were raised on appeal, cannot be argued in a state habeas petition. Id. at 829. This rule exempts issues that raise a fundamental constitutional defect, id. at 829-34, and claims that the trial court lacked personal or subject matter jurisdiction, id. at 836. As the court explained in Harris, constitutional defects that may be heard on habeas are those that are "both clear and fundamental, and strike[] at the heart of the trial process" as well as claims of ineffective assistance of counsel. Id. at 831-34. "Fundamental" constitutional defects are those that "so fatally infected the regularity of the trial and conviction as to violate the fundamental aspects of fairness and result in a miscarriage of justice." Id. at 831.
Plaintiff contends that the issue of inconsistent victim statements does allege a fundamental constitutional defect. Plaintiff also argues that, because the superior court did not cite the Harris rule in denying relief, but rather considered the merits of ground one, this court should not rely on the rule in determining whether the state court would have granted relief on ground one if the supporting exhibits had been attached. Rather, petitioner argues, this court should consider the merits as the state court did.
Plaintiff argued in his superior court habeas petition that the jury foreperson committed misconduct by illegally terminating deliberations by sending verdicts in to the court without consulting the other jurors. ECF No. 153-2 at 33-41. Plaintiff also argued that the trial court erroneously entered the verdicts before answering a question the jury had asked. Id. Plaintiff tried to support these arguments with declarations from Jurors Thornton and Phillips, but defendants refused to copy them. The superior court's denial of the petition is silent as to this claim for relief, so it is unclear whether plaintiff's inability to append the juror declarations impacted the decision.
Plaintiff raised the issue of jury misconduct in the direct appeal of his conviction. ECF No. 133-8 at 45-57. The appellate court provided the following useful background:
Id. at 52-54. In denying relief, the appellate court stated:
Id. at 55-56. In his superior court petition, plaintiff argued that the appellate court got it wrong because the juror declarations show that Thornton and Phillips were resolved to voting not guilty on count three when court resumed on August 30th. ECF No. 153-2 at 40. The declarations indicate that, as of the morning of August 30th, Thornton and Phillips did not wish to vote guilty on counts two
Defendants argue for the application of the Harris rule to this claim and further assert that the superior court would have denied relief on the claim even with the juror declarations, because the record shows no jury misconduct and, if there was any irregularity, it was made harmless when the trial court dismissed count two.
In ground two of his superior court habeas, plaintiff argued that the prosecutor illegally withheld certain confidential records regarding the alleged victims and that the trial court erred by not ordering the records entirely disclosed to the defense. ECF No. 153-2 at 45-52. The state court denied the claim, citing, in part, plaintiff's failure to provide supporting proof. Defendants argue that the state court would have denied this claim under the Harris rule, discussed above, because it could have been raised on plaintiff's direct appeal. Defendants also argue that the claim would have been denied because it is substantively meritless, as the trial court complied with the relevant Supreme Court precedent in conducting an in camera review of the records and disclosing those that were relevant. See Pa. v. Ritchie, 480 U.S. 39, 58-60 (1987) (holding that a defendant accused of child abuse has the constitutional right to have the trial court review confidential records pertaining to the alleged victim to determine whether they contain information that may affect the trial's outcome, but does not have the right to review the files himself).
In ground three, plaintiff argued to the superior court that he had been denied a fair trial because the trial judge was a personal friend of the mother of one of the victims. The court denied the claim because plaintiff had not attached the supporting declaration of George Hoffman, due to defendants' refusal to copy it. In that declaration, Hoffman attests that he was formerly married to Christine Fullmer, mother of victim Natasha Bailey. ECF No. 133-2 at 62-63. Hoffman declares that the trial judge, Judge Luther, was a "long-time friend and employer" of Fullmer and her mother Maryanne Gump, who were "domestic workers at his personal residence." Id. Hoffman claims that Fullmer and her mother "used their influence with Judge Luther to gain my release from jail." Id.
Defendants concede for the purposes of their damages brief that, if Judge Luther had the relationship with Fullmer and Gump described by Hoffman, that relationship mandated his disqualification as trial judge. However, defendants argue that inclusion of the Hoffman declaration would not have caused the superior court to grant plaintiff relief on ground three, "because Judge Luther did not have the relationship described in Hoffman's declaration." ECF No. 133 at 28. Defendants have produced a declaration from Judge Luther in which he attests that he does not know Fullmer or Gump and did not employ them. ECF No. 133-8 at 79-81. Judge Luther does not recall whether he ever ordered Hoffman released from custody, but if he did, he did so "based on information presented in court and not as a personal favor to Maryann Gump or anyone else." Id.
Plaintiff responds that, had defendants copied the Hoffman declaration, the state court would have held an evidentiary hearing and appointed counsel for plaintiff, which would have allowed him to further investigate and present testimony from Fullmer, Gump, and "other people" showing that Judge Luther knew Fullmer and Gump. Plaintiff states that Gump has since died and that he does not have the resources to obtain supporting declarations from Fullmer or others because he is incarcerated.
Defendants contend that the Hoffman declaration is hearsay, but concede that the superior court may have ordered an evidentiary hearing to determine the issue had they been provided with the declaration. Defendants argue that, once the state court heard testimony from Judge Luther that he did not know and never employed Fullmer or Gump, the claim would have been denied.
In ground five, plaintiff argued that his trial counsel had rendered ineffective assistance primarily by failing to properly investigate a tape played at trial, in which plaintiff made incriminating statements to his ex-girlfriend (the mother of one of the victims).
The letter from trial counsel David Nelson to plaintiff's post-trial counsel provides useful background on ground five:
ECF No. 133-4 at 20-21.
Plaintiff argued in the superior court petition that Nelson's failure to have the tape analyzed until the eve of trial was deficient. ECF No. 153-2 at 69-72. He vaguely argued that an audio forensic expert needed "sufficient time" to analyze the tape and that Mr. Wenner's analysis was too cursory because of the short amount of time he was given to look at the tape. Id. at 70.
In a declaration with an attached report, Gregg Stutchman, owner of Stutchman Audio Laboratory, attests that he was hired by plaintiff's post-trial counsel to analyze the tape of the phone call between plaintiff and Ms. Fullmer. ECF No. 144 at 4-6. Mr. Stutchman declares, "Based on my analysis it is my opinion that the Exhibit 6, the tape received into evidence [of plaintiff's conversation with Ms. Fullmer] is not an original recording, but one that an original tape or tapes were selectively copied onto, to include or exclude content desired by the person doing the copying." Id. at 5. Mr. Stutchman also concluded that beeps on the recording did not originate at the jail in which plaintiff was incarcerated when the recording was made. Id. Plaintiff's superior court petition implied that, with enough time, Mr. Wenner would have reached the same conclusion and the tape would have been excluded from the trial. ECF No. 153-2 at 70-71.
Defendants argue that the Nelson letter shows that trial counsel appropriately had the tape analyzed and thus would not have changed the outcome of the superior court petition. Defendants do not address the Stutchman declaration.
Even if the jury concludes that plaintiff could not have prevailed in his state habeas by filing the documents that defendants unlawfully refused to copy, "the opportunity to press even unsuccessful suits has a value in itself[.]" Phillips v. Hust, 477 F.3d 1070, 1081 (9th Cir. 2007), vacated on other grounds, 555 U.S. 1150 (2009). That value may be measured, at least in part, by a plaintiff's costs expended in pursuing the litigation with which the defendant wrongfully interfered. Id. Plaintiff, who was incarcerated, estimates his costs at "no more than $100.00." ECF No. 129 at 39. Such a request does not appear to cross the line between the compensation for "value" permitted by Phillips and attorney's fees, which are not permitted.
477 F.3d at 1081. The court then suggests as least one measure of damage for Sprinkle's lost opportunity here. After acknowledging that "the opportunity to press even unsuccessful suits has a value in itself, and is constitutionally protected," id., the court concluded that awarding the costs of the underlying suit recognizes that the plaintiff incurred those costs "in the expectation that he would be able to exercise those rights and press his legal contentions to the full extent permitted by the law, and even if he was ultimately unsuccessful." Id. The same can be said as to Sprinkle's costs incurred in his underlying action.
Plaintiff also intends to argue that he should be granted damages for emotional distress regardless of whether the court concludes that his state petition would have been successful. Defendants argue that plaintiff could not have suffered much emotional distress because he knew that most of the issues he raised in the superior court habeas had been rejected by other state courts (and thus presumably could not have been holding out much hope that the result would have been different in the superior court). The parties can present their respective arguments to the jury, but it is for the jury to decide whether to award any such damages after it has heard the evidence.
To obtain punitive damages, plaintiff must establish that defendants' conduct was driven by evil motive or intent or involved a reckless or callous indifference to the constitutional rights of others." Dang v. Cross, 422 F.3d 800, 807 (9th Cir. 2005). Plaintiff argues that defendants acted maliciously in denying his request for copies. Defendants claim that the jury will likely award little or no punitive damages because they will likely consider defendants' misconduct to be "at most, a mistake arising from their good-faith attempt to apply prison procedures and regulations, and complex court rules, to Sprinkle's request for copies." ECF No. 133 at 35-36. The question is appropriate for the jury to resolve.
Plaintiff requests appointment of counsel. District courts lack authority to require counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney to voluntarily to represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether "exceptional circumstances" exist, the court must consider the likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009). Having considered those factors, the undersigned concludes that the calculation of damages in this action presents unusually complex issues and that counsel should be provided. Accordingly, the court will grant plaintiff's motion and refer this case to Sujean Park, the court's ADR & Pro Bono Coordinator to attempt to locate pro bono counsel to represent plaintiff in these proceedings, as directed below.
It is hereby ORDERED that:
1. Plaintiff's motion for appointment of counsel (ECF No. 150) is granted. This case is referred to Sujean Park, the court's ADR & Pro Bono Coordinator to attempt to locate pro bono counsel to represent plaintiff in these proceedings.
2. If an attorney can be found to represent plaintiff, that attorney shall be appointed as counsel for plaintiff in this matter until further order of the Court.
3. All proceedings in this action are STAYED until four (4) weeks from the date an attorney is appointed to represent plaintiff in this action or until the Court otherwise lifts the stay.
It is further RECOMMENDED that the court conduct a jury trial to determine the amount of damages due to plaintiff.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
