U.S. 9th Circuit Court of Appeals

FRANKLIN v TERR
9816843

GEORGE FRANKLIN,
Plaintiff-Appellant,

v.
No. 98-16843
LENORE TERR, JIM FOX, ELAINE
D.C. No.
TIPTON, MARTIN MURRAY, ROBERT
CV-97-02443-CRB
MORSE, BRYAN CASSANDRO, SGT.
JOHN CUNEO, KIRK BARRETT, EILEEN                      OPINION
FRANKLIN-LIPSKER, SAN MATEO
COUNTY, and DOES 1-100,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Charles R. Breyer, District Judge, Presiding

Argued and Submitted
December 9, 1999--San Francisco, California

Filed February 2, 2000

Before: Joseph T. Sneed, Harry Pregerson and
William A. Fletcher, Circuit Judges.

Opinion by Judge Pregerson

_________________________________________________________________

COUNSEL

Andrew C. Schwartz, Casper, Meadows, & Schwartz, Walnut
Creek, California; Dennis P. Riordan and Dylan L. Schaffer,
Riordan & Rosenthal, San Francisco, California, for the
plaintiff-appellant.

Peter J. Zomber and David J. Ozeran, La Follette, Johnson,
De Haas, Fesler & Ames, Los Angeles, California, for
defendant-appellee Kirk Barrett.

Donald J. Putterman, Rachel Wagner, and Barry W. Strike,
Sideman & Bancroft; San Francisco, California, and Jon B.
Eisenberg, Horvitz & Levy, Encino, California, for defendant-
appellee Lenore Terr.

_________________________________________________________________
OPINION

PREGERSON, Circuit Judge:

A witness has absolute immunity from liability for civil
damages under S 1983 for giving perjured testimony at trial.
See Briscoe v. LaHue, 460 U.S. 325, 326  (1983). In this case
of first impression, we must decide whether a witness also has
absolute immunity from liability for civil damages under
S 1983 for conspiring to present her own and another wit-
ness's perjured testimony at trial. The district court held that
a witness has such immunity. See Franklin v. Terr, No. 97-
2443, 1998 WL 230983, at *1 (N.D. Cal. Apr. 30, 1998). We
agree and affirm.

I.

In 1989, Eileen Franklin-Lipsker ("Franklin-Lipsker")
accused her father, George Franklin ("Franklin"), of murder-
ing her childhood friend Susan Nason twenty years earlier.
Franklin-Lipsker based her accusation on a memory that she
claimed was previously repressed but recently recovered.
Franklin was tried and convicted of first degree murder by a
jury in California state court.

In 1995, the federal district court granted Franklin's peti-
tion for habeas corpus because it concluded that several con-
stitutional errors had occurred during his trial. 1 See Franklin
v. Duncan, 884 F. Supp. 1435, 1448 (N.D. Cal. 1995), aff'd,
70 F.3d 75 (9th Cir. 1995). The following year, the San Mateo
District Attorney's office dismissed the charges against
Franklin because it determined that there was insufficient evi-
dence to retry him. Franklin then filed suit under 42 U.S.C.
S 1983 against a number of defendants, alleging violations of
his civil rights in connection with his murder trial and convic-
tion. Only the allegations in the amended complaint involving
Kirk Barrett and Lenore Terr are before us in this appeal.

Kirk Barrett was Franklin-Lipsker's therapist. Franklin-
Lipsker first disclosed her recovered memory of the Nason
murder to Barrett during her third therapy session. At Frank-
lin's trial, the defense subpoenaed Barrett to testify about the
therapy he provided to Franklin-Lipsker. Franklin's amended
complaint alleges that Barrett conspired with several other
witnesses to testify falsely that he did not hypnotize Franklin-
Lipsker during her therapy.

Lenore Terr is a psychiatrist who practices in general and
child psychiatry. The prosecution called Lenore Terr to testify
as an expert witness on childhood trauma and its effect on
memory. Franklin's amended complaint alleges that (1) Terr
conspired with others, including the prosecutor, to testify
falsely at trial, and (2) Terr conspired with Franklin-Lipsker
to have Franklin-Lipsker testify falsely at trial.

Terr and Barrett filed motions to dismiss, asserting that
they were absolutely immune from civil suit underS 1983 for
perjury or conspiring to commit perjury in Franklin's criminal
trial. Barrett also asserted that Franklin's allegations against
him were insufficient to state a S 1983 claim.

The district court held that Barrett and Terr were absolutely
immune from suit and granted their motions to dismiss with-
out leave to amend. In so ruling, the court relied on decisions
of the Sixth, Seventh, Eighth, and Tenth Circuits that held that
a plaintiff cannot defeat a testifying witness's absolute immu-
nity for perjured testimony by alleging that the witness also
engaged in a conspiracy to present perjured testimony. See
Franklin v. Terr at *1 (citing Miller v. Glanz, 948 F.2d 1562,
1570-71 (10th Cir. 1991); Wilkins v. May, 872 F.2d 190, 192
(7th Cir. 1989); Alioto v. City of Shively, Kentucky, 835 F.2d
1173, 1174 (6th Cir. 1987); Moses v. Parwatikar , 813 F.2d
891, 892-93 (8th Cir. 1987)). Because it dismissed the claims
against both defendants on immunity grounds, the district
court did not decide whether the allegations against Barrett
were sufficient to state a claim under S 1983. Franklin timely
appeals.

We granted Franklin's application to proceed with this
interlocutory appeal pursuant to 28 U.S.C. S 1292(b). A dis-
missal without leave to amend is reviewed de novo. See San
Pedro Hotel Co. v. City of Los Angeles, 159 F.3d 470, 477
(9th Cir. 1998). We affirm the district court's dismissal of the
S 1983 claim against Barrett, but on different grounds.2 We
hold that Franklin failed to state a S 1983 claim against Bar-
rett. We also affirm the district court's dismissal of the S 1983
claim against Terr on the same grounds as the district court
and we hold that Terr has absolute immunity from damages
liability in a S 1983 action for conspiring to present false testi-
mony at a criminal trial.

II.

A. Kirk Barrett's Motion to Dismiss

[1] To state a claim under 42 U.S.C.S 1983, a plaintiff
must allege that (1) he or she was deprived of a right secured
by the Constitution or federal law; and (2) the defendant acted
"under color of state authority" in depriving the plaintiff of
this right. See Hafer v. Melo, 502 U.S. 21, 25  (1991). An alle-
gation that a private person conspired with a state official sat-
isfies the requirement that a defendant act under color of state
authority. See Adickes v. S. H. Kress & Co., 398 U.S. 144,
152 (1970) (holding that a conspiracy with a state official is
sufficient to satisfy the state action requirement of S 1983);
United Steelworkers of America v. Phelps Dodge Corp. , 865
F.2d 1539, 1540 (9th Cir. 1989) (holding that "[p]rivate par-
ties act under color of state law if they willfully participate in
joint action with state officials to deprive others of constitu-
tional rights").

[2] Here, Franklin failed to allege that Barrett acted under
color of state authority. Franklin's amended complaint states,
"Defendant Franklin-Lipsker, her husband Barry Lipsker,
Janice Franklin and defendant Barrett agreed to deny that
Eileen [Franklin-Lipsker] and [her sister ] Janice had been
hypnotized by Barrett, and if necessary, to lie under oath to
the same effect," and "in order to assist the prosecution,
defendant Barrett falsely testified that he had not hypnotized
defendant Franklin-Lipsker." These allegations are insuffi-
cient to state a claim against Barrett because Franklin failed
to allege that Barrett conspired with a state official or acted
under color of state authority in any way. Thus, we dismiss
Franklin's complaint against Barrett for failure to state a
S 1983 claim.

B. Lenore Terr's Motion to Dismiss

Terr argues that she is immune from liability for damages
under S 1983 for testimony given at Franklin's trial, under the
rule articulated in Briscoe. We agree that the rationale of
Briscoe applies to this case.

The specific question before the court in Briscoe was
"whether a police officer who commits perjury during a state
court criminal trial should be granted absolute immunity from
civil liability under 42 U.S.C. S 1983." Briscoe, 460 U.S. at
328 n.5. The Court in Briscoe decided appeals of two separate
cases. In the first case, petitioner Briscoe was convicted of
burglary and subsequently filed a S 1983 complaint against a
police officer who testified against him at trial. See id. at 326-
27. Briscoe alleged the officer had violated his constitutional
right to due process by committing perjury in the criminal
proceedings leading to his conviction. See id . at 326. In the
second case, two petitioners who were jointly tried and con-
victed of sexual assault subsequently brought S 1983 actions
against a police officer who testified against them. See id.
They alleged that the officer's false testimony deprived them
of their constitutional rights to due process and a fair trial. See
id. The Court held that "witnesses are absolutely immune
from damages liability based on their testimony. " Id. at 326.
The Court stated "[a]t least with respect to private witnesses,
it is clear that S 1983 did not abrogate the absolute immunity
existing at common law . . . ." See id. at 334.

[3] In the instant case, Franklin is attempting to circumvent
Terr's absolute witness immunity by alleging that Terr con-
spired with others to present false testimony. We are per-
suaded that allowing a plaintiff to circumvent the Briscoe rule
by alleging a conspiracy to present false testimony would
undermine the purposes served by granting witnesses absolute
immunity from damages liability under S 1983. Absolute wit-
ness immunity is based on the policy of protecting the judicial
process and is "necessary to assure that judges, advocates, and
witnesses can perform their respective functions without
harassment or intimidation." See id. at 334-35 (citing Butz v.
Economou, 438 U.S. 478, 512  (1978)). As the Court stated in
Briscoe, "[a] witness's apprehension of subsequent damages
liability might induce two forms of self censorship. First, wit-
nesses might be reluctant to come forward to testify. And
once a witness is on the stand, his testimony might be dis-
torted by the fear of subsequent liability." See Briscoe, 460
U.S. at 333 (internal citations omitted). Moreover, as the dis-
trict court correctly observed, "[a]ny other holding would
eviscerate absolute immunity since a witness rarely prepares
her testimony on her own." Franklin, 1998 WL 230983, at *1.

[4] Franklin alleges that Terr conspired with Franklin-
Lipsker by interviewing her before Franklin's trial and by
then incorporating information obtained from those interviews
into her own testimony. Franklin also alleges that Terr pro-
vided Franklin-Lipsker "with a description of the sort of
details that would make her testimony more persuasive, which
Franklin-Lipsker then incorporated into her continually evolv-
ing `recollection' of the Nason murder." The ostensible pur-
pose of this conspiracy was to ensure that one person's
testimony did not contradict the other's testimony. But
because Terr's alleged conspiratorial behavior is inextricably
tied to her testimony, we find that she is immune from dam-
ages. We are not presented with, and do not decide, the ques-
tion whether S 1983 provides a cause of action against a
defendant who conspired to present the perjured testimony of
another but who did not testify as a witness herself.

In concluding that the rule of Briscoe applies to allegations
of conspiracy to commit perjury by someone who has testified
as a witness in the proceeding where the perjury took place,
or was to take place, we join six circuits that have reached the
same conclusion. See Jones v. Cannon, 174 F.3d 1271, 1289
(11th Cir. 1999) (holding that "[t]o allow aS 1983 claim on
subornation of perjured testimony where the allegedly per-
jured testimony itself is cloaked in absolute immunity would
be to permit through the back door what is prohibited through
the front"); Watterson v. Page, 987 F.2d 1, 9 (1st Cir. 1993)
(holding that an allegation that a psychologist and a state
social worker conspired to present false testimony and with-
hold material evidence from the court failed because all wit-
nesses at judicial proceedings have an absolute immunity
from damages liability based on their testimony); Miller, 948
F.2d at 1562 (10th Cir.) (holding that the safeguards of judi-
cial process discussed in Briscoe, which decrease the likeli-
hood that perjured testimony will significantly harm or alter
a just outcome at trial, also apply to attempted conspiracies to
give perjured testimony); Wilkins, 872 F.2d at 192 (7th Cir.)
(holding that S 1983 plaintiff's attempt to circumvent wit-
nesses' absolute immunity by charging them with conspiracy
to convict him of a crime by giving perjured testimony is fac-
ile and must fail); Moses, 813 F.2d at 893 (8th Cir.) (holding
that a court-appointed psychiatrist was entitled to absolute
immunity because allowing a plaintiff to defeat the doctrine
of absolute immunity by pleading a conspiracy would create
an exception where none was intended); Alioto, 835 F.2d at
1174 (6th Cir.) (holding that the witness immunity doctrine of
Briscoe also shields from liability alleged conspiracies to give
false and incomplete testimony in judicial proceedings). Only
the Second Circuit has reached a contrary conclusion. See
Dory v. Ryan, 25 F.3d 81, 84 (2d Cir. 1994) (declining to give
witness absolute immunity for extra-judicial action of con-
spiring to convict Dory on the basis of perjured testimony);
San Filippo v. U.S. Trust Co., 737 F.2d 246, 255 (2d Cir.
1984) (holding that Briscoe was expressly limited to immu-
nity for testimony given in judicial proceedings, and that its
rationale, to encourage witnesses to come forward with all
they know, did not justify extending immunity to cover extra-
judicial conspiracies between witnesses and the prosecutor to
give false testimony).

III.

We affirm the district court's decision granting Terr and
Barrett's motions to dismiss. We hold that Franklin failed to
state a claim against Barrett. We also hold that Terr is abso-
lutely immune from S 1983 liability for civil damages based
on the allegation that she conspired to present her own and
another witness's perjured testimony at Franklin's criminal
trial.

AFFIRMED.
_______________________________________________________________

FOOTNOTES

1 The district court held that: (1) Franklin's Sixth Amendment right to
counsel was violated when Franklin-Lipsker visited Franklin in jail with
the approval and practical support of the prosecutor; (2) Franklin's Fifth
Amendment privilege against self-incrimination was violated when the
state trial court admitted evidence that Franklin, who had been given his
Miranda rights, remained silent when Franklin-Lipsker accused him of the
murder during a visit in jail; and (3) Franklin's due process rights were
violated when the trial court failed to admit into evidence newspaper arti-
cles written after the murder in 1969 that were offered to show that
Franklin-Lipsker could have learned of the facts about which she testified
by reading the old articles and not from witnessing the murder.
2 The Court of Appeals can affirm on any grounds supported by the
record. See Recording Industry Ass'n of America v. Diamond Multimedia
Sys., Inc., 180 F.3d 1072, 1077 (9th Cir. 1999).