Argued and Submitted December 8, 2015 -Seattle, Washington
Amended April 15, 2016
Appeal from the United States District Court for the District of Oregon Owen M. Panner, Senior District Judge, Presiding D.C. No. 1:11-cv-03025-PA
John T. Drake (argued), Foster Pepper PLLC, Spokane, Washington; Kendra H. Nickel-Nguy, K&L Gates LLP, Seattle, Washington, for Plaintiff-Appellant.
Gerald L. Warren (argued), Law Office of Gerald Warren, Salem, Oregon, for Amicus Curiae Klamath County.
Jeff J. Payne (argued), Senior Assistant Attorney General; Ellen F. Rosenblum, Attorney General; Anna M. Joyce, Solicitor General, Salem, Oregon, for Amicus Curiae State of Oregon.
Before: M. Margaret McKeown and Richard C. Tallman, Circuit Judges and Sharon L. Gleason, [*] District Judge.
The panel reversed the district court's sua sponte dismissal of an in forma pauperis civil rights complaint and remanded in an action brought against a County probation officer and a private therapist, who had contracted with the County to run a sex offender treatment program.
Analyzing 28 U.S.C. § 1915(e)(2)(B)(iii), which requires a court to dismiss an action "at any time" if it determines that the complaint "seeks monetary relief against a defendant who is immune from such relief, " the panel held that the term "immune" as used in the statute includes both absolute and qualified immunity. The panel then held that a district court may dismiss a claim on qualified immunity grounds under 28 U.S.C. § 1915(e)(2)(B)(iii), but only if it is clear from the complaint that the plaintiff can present no evidence that could overcome a defense of qualified immunity.
In this case, the panel determined that plaintiff's complaint did not clearly show that he would be unable to overcome qualified immunity. The panel concluded that further amendment or proceedings would be necessary to clarify, for example, whether the therapist was acting under color of state law in operating the sex offender treatment program and whether the therapist or the probation officer violated any clearly established law. Accordingly, the panel held that the district court erred by dismissing plaintiff's claims sua sponte.
The opinion filed on March 29, 2016, at - F.3d -, 2016 WL 1211844, is amended as follows:
At slip op. page 14 n.5, change "and have been waived." to "and we therefore do not ...