FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM HENRY COUSINS,
Plaintiff-Appellant,
v.
BILL LOCKYER, (former) Attorney
General of California, in his
official capacity; RICHARD RIMMER, No. 07-17216
(former) Director of the California
Department of Corrections and D.C. No.
CV-07-01165-SBA
Rehabilitation (CDCR), in his
OPINION
individual capacity; ROSEANNE
CAMPBELL, (former) Warden of
Mule Creek State Prison, in her
individual capacity; and JOHN/JANE
DOES 1 through x,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Saundra B. Armstrong, District Judge, Presiding
Argued and Submitted
April 13, 2009—San Francisco, California
Filed June 15, 2009
Before: Thomas G. Nelson, Andrew J. Kleinfeld, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
7139
COUSINS v. LOCKYER 7143
COUNSEL
Dennis Cunningham & William Gordon Kaupp, Law Offices
of Dennis Cunningham, San Francisco, California, for the
plaintiff-appellant.
Wilfred T. Fong, Office of the California Attorney General,
Oakland, California, for the defendants-appellees.
OPINION
MILAN D. SMITH, JR., Circuit Judge:
William Henry Cousins (Cousins) appeals from the dis-
missal of his 42 U.S.C. § 1983 complaint against several Cali-
fornia state officials, in which he alleges that he was
wrongfully imprisoned for an additional nineteen months after
a California appellate court overturned the statute under
7144 COUSINS v. LOCKYER
which he was incarcerated. He argues that the officials
breached their alleged duties to monitor whether his sentence
was void under the invalidated statute and to take steps to
effectuate his release. He also asserts that the district court
erred in determining that the former Attorney General is enti-
tled to absolute prosecutorial immunity, and that the remain-
ing defendants are entitled to qualified immunity.
We affirm the district court’s judgment regarding Cousins’
federal claims because they fall within the scope of the former
Attorney General’s duties as a criminal prosecutor, and
because Cousins cannot show that any federal constitutional
right that may have been violated by the remaining defendants
was clearly established in law. However, we reverse and
remand Cousins’ state causes of action. His state false impris-
onment claim is not subject to any state statutory immunity;
his remaining state claims are all derivative of that claim; and
none of his state claims is subject to the federal common law
doctrine of qualified immunity.
FACTUAL AND PROCEDURAL BACKGROUND
Cousins, a former California prison inmate, filed this
§ 1983 action against several state officials, alleging that he
was wrongfully incarcerated beyond the time he should have
been released. The defendants are Bill Lockyer, the former
state Attorney General (AG), Richard Rimmer, the former
director of the California Department of Corrections and
Rehabilitation (CDCR director), and Roseanne Campbell, the
former warden of Mule Creek State Prison (MCSP warden),
all of whom are being sued in their individual capacities.
Cousins also names various John/Jane Doe employees of the
Attorney General’s Office “who had the knowledge and/or
responsibility to ensure [his] incarceration was ended by tak-
ing steps to cause [his] release.”
Cousins was arrested in June 1999, in San Jose, California,
and charged under California Penal Code § 290(g)(2) with
COUSINS v. LOCKYER 7145
failure to register with the police department within five days
of entering the city. In October 1999, the Santa Clara District
Attorney filed a two-count information against Cousins, alleg-
ing that (1) he failed to register as a sex offender with a felony
conviction, as required by California Penal Code
§ 290(a)(1)(A); and (2) he failed to inform law enforcement
of his new address, as required by California Penal Code
§ 290(f)(1).
In January 2000, a jury convicted Cousins on Count Two,
and he received a sentence of twenty-five years to life in
prison under California’s “three strikes” law. His conviction
was affirmed on appeal in November 2002, and a petition for
rehearing by the California Court of Appeal, Sixth Appellate
District, was denied later that month. The California Supreme
Court denied Cousins’ petition for review in February 2003.
In October 2003, the California Court of Appeal, First
Appellate District, decided People v. North, 5 Cal. Rptr. 3d
337 (Cal. Ct. App. 2003), in which the court declared Califor-
nia Penal Code § 290(f)(1), the statute under which Cousins
had been incarcerated, unconstitutionally vague. The state did
not seek review of the North decision.
In January 2004, Cousins filed a writ of habeas corpus in
the California Supreme Court, arguing that he was entitled to
release because the statute under which he was imprisoned
had been declared unconstitutional. More than a year later, the
state responded to Cousins’ petition, and argued that even
though California Penal Code § 290(f)(1) had been declared
unconstitutionally vague, it was still valid in his case. The
California Supreme Court issued an order to show cause upon
the CDCR director, and the Attorney General’s Office subse-
quently agreed that Cousins’ writ should issue. Cousins was
released from prison in June 2005, approximately one year
and seven months after the North court overturned California
Penal Code § 290(f)(1).
7146 COUSINS v. LOCKYER
In February 2007, Cousins filed a complaint in federal dis-
trict court, alleging that his extended incarceration violated
several state laws and his civil rights under § 1983. His com-
plaint named as defendants the AG, the CDCR director, and
the MCSP warden, as well as the State of California, the Cali-
fornia Department of Corrections, and the California Depart-
ment of Justice. Cousins amended his complaint in August
2007, dropping the state entities as defendants.
Cousins’ first amended complaint alleges that the AG, the
CDCR director, and the MCSP warden, in their individual
capacities, breached specific duties owed to him. Cousins
asserts that the AG “had a duty to inform the trial court in . . .
Cousin[s’] conviction and various officials in the CDCR
including, but not limited to, the Director of the CDCR, as
well as the Warden of Mule Creek.” Cousins further alleges
that the CDCR director and the MCSP warden had:
a duty to discover when statutes in the Penal Code
are invalidated, . . . a duty to discover who was
incarcerated under the invalid statute, as well as a
duty to determine the effect on all sentences affected
by the change in law, . . . [and] to inform the trial
court that Plaintiff[’s] sentence was no longer autho-
rized by law.
Cousins states that in breaching these duties, the defendants
violated his federal and state constitutional rights to due pro-
cess, his federal and state constitutional rights to freedom
from unreasonable seizure, and his federal constitutional right
to freedom from cruel and unusual punishment. He also
alleges state claims of negligence, negligent infliction of emo-
tional distress, false arrest and imprisonment, and violation of
the Bane Act.
The defendants filed a motion to dismiss pursuant to Fed-
eral Rule of Civil Procedure 12(b)(6) in September 2007. In
November 2007, the district court issued a written order
COUSINS v. LOCKYER 7147
granting the defendants’ motion on the grounds that the AG
is entitled to absolute prosecutorial immunity, and that the
remaining defendants are entitled to qualified immunity.
Cousins timely appealed.
JURISDICTION AND STANDARD OF REVIEW
We have jurisdiction pursuant to 28 U.S.C. § 1291. We
review a district court’s grant of a motion to dismiss under
Federal Rule of Civil Procedure 12(b)(6), as well as questions
of statutory interpretation, de novo. Silvas v. E*Trade Mort-
gage Corp., 514 F.3d 1001, 1003-04 (9th Cir. 2008). “All
allegations of material fact are taken as true and construed in
the light most favorable to the nonmoving party.” Id. at 1003.
Although “conclusory allegations of law and unwarranted
inferences are insufficient” to avoid a Rule 12(b)(6) dismissal,
Fields v. Legacy Health Sys., 413 F.3d 943, 950 n.5 (9th Cir.
2005) (citation, quotation marks, and alteration omitted), “a
complaint need not contain detailed factual allegations; rather,
it must plead ‘enough facts to state a claim to relief that is
plausible on its face,’ ” Weber v. Dep’t of Veterans Affairs,
521 F.3d 1061, 1065 (9th Cir. 2008) (quoting Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 570 (2007)).
DISCUSSION
Cousins asserts that the district court erred in dismissing his
first amended complaint based on its determinations that the
AG is entitled to absolute prosecutorial immunity, and that the
remaining defendants are entitled to qualified immunity.
A. Federal Claims
1. Federal Prosecutorial Immunity for the AG
[1] Cousins first argues that the district court erred in con-
cluding that the AG is entitled to absolute prosecutorial
immunity from the federal claims on the ground that he was
7148 COUSINS v. LOCKYER
acting within the scope of his duties as a criminal prosecutor.
A state prosecuting attorney enjoys absolute immunity from
liability under § 1983 for his conduct in “pursuing a criminal
prosecution” insofar as he acts within his role as an “advocate
for the State” and his actions are “intimately associated with
the judicial phase of the criminal process.” Imbler v. Pacht-
man, 424 U.S. 409, 410, 430-31 (1976). However, “absolute
immunity may not apply when a prosecutor is not acting as
‘an officer of the court,’ but is instead engaged in . . . investi-
gative or administrative tasks.” Van De Kamp v. Goldstein,
129 S. Ct. 855, 861 (2009) (quoting Imbler, 424 U.S. at 431
n.33). In those instances, only qualified immunity is available.
See Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). To
determine whether an action is judicial, investigative, or
administrative, we look at “ ‘the nature of the function per-
formed, not the identity of the actor who performed it.’ ”
Kalina v. Fletcher, 522 U.S. 118, 127 (1997) (quoting For-
rester v. White, 484 U.S. 219, 229 (1988)).
Here, Cousins alleges that because the California Attorney
General’s Office handled the North appeal that resulted in the
invalidation of California Penal Code § 290(f)(1), the AG is
civilly liable for his failure to notify the trial court and CDCR
officials of the change in the law “so that [Cousins’] sentence
could be changed accordingly.” He also alleges that the AG,
along with the other defendants, “failed to maintain an institu-
tionalized practice that follows changes in the law that
directly affect the incarceration of persons in their custody
and to address those changes . . . by informing the trial court.”
These asserted duties are not “investigative” in nature, as they
do not involve the AG performing the evidence gathering and
witness interviewing functions “normally performed by a
detective or police officer.” See Buckley, 509 U.S. at 273.
Nor, contrary to Cousins’ argument, are they “strictly admin-
istrative and ministerial,” such that the AG may avail himself
only of a qualified immunity defense.
COUSINS v. LOCKYER 7149
[2] First, regardless of whether the AG “knew or should
have known” about the North decision and its impact on
Cousins’ individual conviction, the AG could not have effec-
tuated Cousins’ post-conviction release merely by notifying or
informing the sentencing court or CDCR officials of that
information. Rather, the AG would have had to petition the
court for an order directing such a release—an action entirely
dependent upon his role as an advocate for the State.1 See
Guzman-Rivera v. Rivera-Cruz, 55 F.3d 26, 29-31 (1st Cir.
1995) (holding that “the [state official] defendants[’] fail[ure]
to go to court as prosecutors to undo [the plaintiff ’s] convic-
tion” after a post-conviction investigation established his
innocence did not strip them of prosecutorial immunity,
because such a decision was “at the heart of the prosecutorial
function”); see also Demery v. Kupperman, 735 F.2d 1139,
1144 (9th Cir. 1984) (holding that “prosecutors are absolutely
immune from civil suits alleging wrongdoing with regard to
post-litigation . . . handling of a case”); In re Sandel, 412 P.2d
806, 810 (Cal. 1966) (“The correction of an act of sentencing
in excess of jurisdiction of the court is just as much of a judi-
cial function as the act of sentencing itself, and is likewise
beyond the authority of . . . any other administrative body.”).
[3] Second, to the extent Cousins faults the AG for failing
to maintain an institutionalized information system for track-
ing all California appellate decisions with a direct bearing on
individual prisoners’ convictions (an obligation for which
Cousins cites no legal authority), the Supreme Court has indi-
cated that, even if properly characterized as an attack on an
office’s administrative procedures, such a challenge does not
strip a supervising prosecutor of absolute immunity. See Van
De Kamp, 129 S. Ct. at 861-64. Rather, supervising prosecu-
1
This conclusion is buttressed by the Imbler Court’s observation that the
potential for § 1983 liability could also undermine a prosecutor’s exercise
of his post-conviction ethical duty “to inform the appropriate authority of
after-acquired or other information that casts doubt upon the correctness
of the conviction.” 424 U.S. at 427 n.25.
7150 COUSINS v. LOCKYER
tors retain absolute immunity regarding decisions to create
information management systems where, as here, “determin-
ing the criteria for inclusion or exclusion requires knowledge
of the law,” and where, as here, the information is relevant
only insofar as it relates to the prosecution of a particular case
—in this instance, the AG’s distinctly prosecutorial function
of going to the sentencing court to undo Cousins’ conviction.
See id. at 862-64. As a result, we hold that the district court
properly granted the AG prosecutorial immunity from Cous-
ins’ § 1983 claims.
2. Qualified Immunity for the Remaining
Defendants
[4] Cousins next argues that the district court erred in deter-
mining that the remaining defendants are entitled to qualified
immunity from the federal claims on the ground that he can-
not show that any constitutional right that may have been vio-
lated was clearly established in law. Qualified immunity
protects government officials from civil liability if “their con-
duct does not violate clearly established statutory or constitu-
tional rights of which a reasonable person would have
known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). We
consider qualified immunity using the two-step inquiry set
forth in Saucier v. Katz, 533 U.S. 194 (2001).2 First, we
decide whether the alleged facts make out a violation of a
constitutional right. Id. at 201. If so, we then decide whether
the right at issue was “clearly established” at the time of the
alleged misconduct. Id. The inquiry into whether a right is
clearly established “must be undertaken in light of the specific
context of the case.” Id. In addition, for a right to be clearly
established, its contours “ ‘must be sufficiently clear that a
reasonable official would understand that what he is doing
2
The Supreme Court recently revisited Saucier and concluded that
“while the sequence set forth there is often appropriate, it should no longer
be regarded as mandatory.” Pearson v. Callahan, 129 S. Ct. 808, 818
(2009).
COUSINS v. LOCKYER 7151
violates that right.’ ” Id. at 202 (quoting Anderson v. Creigh-
ton, 483 U.S. 635, 640 (1987)).
[5] In this case, the remaining defendants fully agree with
Cousins that he has a broad federal constitutional right to be
free from wrongful incarceration.3 See, e.g., McNeil v. Dir.,
Patuxtent Inst., 407 U.S. 245, 246 (1972) (holding that contin-
ued incarceration after the lawful basis for custody expires
violates due process under the Fourteenth Amendment); Hay-
good v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (hold-
ing that deliberately indifferent detention of a person beyond
the term permissible by law constitutes cruel and unusual
punishment proscribed under the Eighth Amendment). How-
ever, as the Supreme Court has explained:
[I]f the test of “clearly established law” were to be
applied at this level of generality, it would bear no
relationship to the “objective legal reasonableness”
that is the touchstone of [the Harlow decision].
Plaintiffs would be able to convert the rule of quali-
fied immunity that our cases plainly establish into a
rule of virtually unqualified liability simply by alleg-
ing violation of extremely abstract rights . . . . It
should not be surprising, therefore, that our cases
establish that the right the official is alleged to have
violated must have been “clearly established” in a
more particularized, and hence more relevant, sense.
Anderson, 483 U.S. at 639-40 (citations omitted). In other
words, “the right allegedly violated must be defined at the
appropriate level of specificity before a court can determine
3
Although Cousins’ first amended complaint asserts unreasonable sei-
zure allegations under the Fourth Amendment, he fails to discuss or even
identify that constitutional claim in his brief. As a result, he has waived
that argument on appeal. See Collins v. City of San Diego, 841 F.2d 337,
339 (9th Cir. 1988) (noting that “[i]t is well established in this Circuit that
claims which are not addressed in the appellant’s brief are deemed aban-
doned”).
7152 COUSINS v. LOCKYER
if it was clearly established.” Wilson v. Layne, 526 U.S. 603,
615 (1999). Here, Cousins offers no decisional, statutory, or
other legal basis to suggest that a reasonable official standing
in the defendants’ shoes would have any way of knowing that
by failing to personally check all California appellate court
decisions for changes in the law, failing to apply these
changes to individual inmates statewide, and then failing to
contact the appropriate sentencing courts, he or she was vio-
lating Cousins’ constitutional rights.
[6] Although Cousins argues that “[t]he CDCR operations
manual is replete with references which make clear that the
duties and procedures it prescribes encompass the activities
which are necessary to avoid the deprivation of liberty [he]
suffered,” the remaining defendants are entitled to qualified
immunity from the federal claims because state departmental
regulations do not establish a federal constitutional violation.
See Case v. Kitsap County Sheriff’s Dep’t, 249 F.3d 921, 930
(9th Cir. 2001) (quoting Gardner v. Howard, 109 F.3d 427,
430 (8th Cir. 1997) (“[T]here is no § 1983 liability for violat-
ing prison policy. [Plaintiff] must prove that [the official] vio-
lated his constitutional right . . . .”)); see also Gagne v. City
of Galveston, 805 F.2d 558, 560 (5th Cir. 1986)
(“[A]llegations about the breach of a . . . regulation are simply
irrelevant to the question of an official’s eligibility for quali-
fied immunity in a suit over the deprivation of a constitutional
right.”).
Finally, Cousins’ argument that the district court erred in
dismissing the federal claims against the remaining John/Jane
Doe defendants before they could be identified and impleaded
through the discovery process is misplaced. Since Cousins has
failed to identify, at the appropriate level of specificity, any
clearly established constitutional right that has been violated,
discovery would be futile. Accordingly, we conclude that the
district court properly granted the remaining defendants quali-
fied immunity from Cousins’ § 1983 claims.
COUSINS v. LOCKYER 7153
B. State Claims
1. State Prosecutorial Immunity for the AG
[7] Cousins also contends that the district court erred in
granting the AG state prosecutorial immunity from the state
claims. In determining that the AG enjoyed such immunity,
the district court relied on California Government Code
§ 821.6, which states that “[a] public employee is not liable
for injury caused by his . . . prosecuting any judicial . . . pro-
ceeding within the scope of his employment, even if he acts
maliciously and without probable cause.” However, the Cali-
fornia Supreme Court has expressly held that neither the
immunity afforded by California Government Code § 821.6,
nor that provided by any other state governmental immunity
provision, applies to a false imprisonment claim brought pur-
suant to California Government Code § 815.6. Sullivan v.
County of L.A., 527 P.2d 865, 867-72 (Cal. 1974). We there-
fore hold that the district court erred in applying California
Government Code § 821.6 to Cousins’ state false imprison-
ment claim against the AG.
[8] In such instances, both our precedent and that of the
California Supreme Court require reversal not only of the
state false imprisonment claim, but also of the other, related
state causes of action. In Martinez v. City of Los Angeles, we
reversed in part summary judgment against a plaintiff who
had been detained in Mexico for fifty-nine days after “the
LAPD falsely had him arrested by knowingly or recklessly
providing false information to the Mexican authorities . . .
[and] allowed him to remain in jail in Mexico after they knew
or should have known that he was the wrong man.” 141 F.3d
1373, 1379 (9th Cir. 1998). We held that the LAPD could not
be liable for providing false information, because such a claim
is akin to malicious prosecution, a claim for which govern-
ment officers are immune under California Government Code
§ 821.6. Id. at 1379-80. But we also held that § 821.6 immu-
nity did not apply to the prolonged detention claim, which
7154 COUSINS v. LOCKYER
was akin to a false imprisonment claim. Id. at 1380-81. We
also reversed summary judgment on the state law negligence
and negligent infliction of emotional distress claims to the
extent they were “base[d] . . . on the same facts as his false
imprisonment claim” and “[we]re derivative of the false arrest
and false imprisonment claims.” Id. at 1381-82. We stated
that “[b]ecause the false imprisonment claim grounded on
prolonged detention survives summary judgment, these
claims survive as well.” Id. at 1382.
Similarly, in Asgari v. City of Los Angeles, the California
Supreme Court affirmed a judgment finding state police offi-
cers liable for “false arrest and related causes of action.” 937
P.2d 273, 275 (Cal. 1997) (emphasis added). Specifically, the
court affirmed a finding of liability for both false arrest and
intentional infliction of emotional distress incident to that
false arrest, but reversed the amount of damages because the
court had instructed the jury to consider the period of time
after the false arrest had ended. Id. at 284.
[9] The same logic applies to this case. To the extent Cous-
ins’ negligence and negligent infliction of emotional distress
claims are “based . . . on the same facts,” “are derivative of,”
and are “related” to his false imprisonment claim, both Marti-
nez and Asgari require that we reverse their dismissal as to the
AG because California’s statutory immunities do not apply.
The state constitutional and Bane Act claims against the AG
also survive because they are likewise “based on” and “deriv-
ative of” the state false imprisonment claim.
2. State Immunities for the Remaining Defendants
[10] Finally, Cousins asserts that the district court erred in
summarily dismissing his state claims against the remaining
defendants pursuant to its qualified immunity analysis. We
agree. California law is clear that “ ‘[t]he doctrine of qualified
governmental immunity is a federal doctrine that does not
extend to state tort claims against government employees.’ ”
COUSINS v. LOCKYER 7155
Venegas v. County of L.A., 63 Cal. Rptr. 3d 741, 751 (Cal. Ct.
App. 2007) (quoting Ogborn v. City of Lancaster, 124 Cal.
Rptr. 2d 238, 246 (Cal. Ct. App. 2002)). California law is also
clear that qualified immunity does not apply to state civil
rights claims. See id. at 753 (holding that “qualified immunity
of the kind applied to actions brought under 42 [U.S.C. § ]
1983 does not apply to actions brought under [the Bane
Act]”). In other words, qualified immunity is a doctrine of
federal common law and, as such, has no application to Cous-
ins’ state claims, which are subject only to state statutory
immunities. See Asgari, 937 P.2d at 280 (noting that
“[g]overnmental immunity for claims of violation of civil
rights under section 1983 is not conferred expressly by stat-
ute, but is based upon a judicial gloss on section 1983,”
whereas “governmental immunity under California law is
governed by statute”).
As discussed above, Cousins’ state false imprisonment
claim and related state causes of action are not subject to any
state statutory immunity. As with Cousins’ state claims
against the AG, therefore, we also reverse and remand his
state claims against the remaining defendants for consider-
ation on the merits.
CONCLUSION
[11] We affirm the district court’s judgment regarding
Cousins’ § 1983 claims because they fall within the scope of
the AG’s duties as an advocate for the State, and because
Cousins has failed to show that any federal constitutional
right that may have been violated by the remaining defendants
was clearly established in law at the time of the alleged mis-
conduct. However, we reverse and remand regarding Cousins’
state causes of action. His state false imprisonment claim is
not subject to any state statutory immunity; his remaining
state claims are all based on that claim; and none of his state
claims is subject to the federal common law doctrine of quali-
fied immunity.
7156 COUSINS v. LOCKYER
AFFIRMED in part; REVERSED and REMANDED in
part.
Each party shall bear its own costs on appeal.