Opinion by Chief Judge SCHROEDER; Partial Concurrence and Partial Dissent by Judge KLEINFELD; Partial Concurrence and Partial Dissent by Judge SILVERMAN.
SCHROEDER, Chief Judge.
We took this case en banc to consider whether the head of a county public defender's office, as the administrative head of an organization formed to represent criminal defendants, may be held accountable under 42 U.S.C. § 1983 for a policy that leads to a denial of an individual's right to effective representation of counsel. We take principal guidance from the leading Supreme Court decisions on state and municipal liability, Monell v. Department of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) and City of Canton v. Harris, 489 U.S. 378, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989), as well as the leading decision considering § 1983 liability of a public defender, Polk County v. Dodson, 454 U.S. 312, 102 S.Ct. 445, 70 L.Ed.2d 509 (1981).
Polk County held that when an assistant public defender is performing the traditional role of an attorney for a client, the lawyer is not a state actor. Id. at 318-19, 102 S.Ct. 445. The case left open the possibility, however, that there may be liability for "administrative and possibly investigative functions." Id. at 324-25, 102 S.Ct. 445.
The plaintiff in this case is Roberto Hernandez Miranda. He was convicted of capital murder and served fourteen years in prison until a Nevada state court overturned his conviction in collateral-review proceedings. The Nevada court held that he was not provided effective assistance of counsel because the assistant public defender failed to investigate the case. The state declined to reprosecute.
Miranda then filed this action in federal district court against the individual assistant public defender who had represented him, Thomas Rigsby; the head of the Clark County Public Defender's Office, Morgan Harris; and Clark County, Nevada. The district court dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief could be granted.
According to the complaint, Miranda truthfully maintained his innocence, and he provided Rigsby with a list of forty witnesses who could provide information on who actually committed the crime. Rigsby, fresh out of law school and an assistant public defender for a little over a year, had never tried a murder case, much less a capital case. He interviewed only three of the witnesses Miranda had listed and subpoenaed none for trial. Miranda alleges conduct that fell far short of the minimal requirements of effective representation.
In addition, the complaint alleges Rigsby's representation of Miranda was doomed to failure because of two policies promulgated by Harris as the head of the Office of Public Defender. The first was a policy of administering a lie detector test to all defendants and allocating minimal resources for preparation of defense to those clients who appear guilty because they failed the polygraph. The plaintiff claims that this policy violates the basic dictates of Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), to provide all defendants with effective counsel regardless of guilt or innocence. Id. at 344-45, 83 S.Ct. 792. The second policy was to assign the least-experienced lawyers on the staff to capital cases without training or experience in the special demands of such cases. Plaintiff maintains that such a policy constitutes a lack of training so severe as to establish a "deliberate indifference" to a defendant's constitutional rights. City of Canton, 489 U.S. at 388-89, 109 S.Ct. 1197. Plaintiff alleges that Harris, as a policymaker for the county, made a deliberate choice to follow this course of action rather than to implement an alternative policy, and that the county thus violated Miranda's constitutional rights. Id.
Thus, contrary to the suggestions of my dissenting colleagues, the complaint effectively alleges that Harris made no particularized decisions through the exercise of independent professional judgment in the defense of a client. The complaint expressly states that "Harris, as a policy maker for the Clark County Public Defender's Office and Clark County, Nevada, . . . allocate[d] investigative and defense resources based upon a defendant's performance on a polygraph examination" [Complaint ¶ 121] and "assign[ed] inexperienced and untrained attorneys to capital and other felony cases [Complaint ¶ 138]," which policy, custom or practice "was . . . deliberately indifferent to, . . . and in callous disregard for, Mr. Miranda's federal constitutional rights, including, but not limited to, his rights to the effective assistance of counsel." Complaint ¶ 138; see also id. ¶ 121.
The district court dismissed the complaint under Federal Rule of Civil Procedure 12(b)(6) as failing to state a claim upon which relief could be granted against any of the defendants. A three-judge panel of this court affirmed. Miranda v. Clark County, 279 F.3d 1102, 1112 (9th Cir. 2002). We affirm as to Rigsby and reverse as to Harris and Clark County.
Key to our review is the stricture that when reviewing a dismissal of a complaint under Rule 12(b)(6), all allegations are to be considered in a light most favorable to the plaintiff. Gone is any heightened pleading requirement that may have influenced the district court's disposition of the case. Leatherman v. Tarrant County NICU, 507 U.S. 163, 168, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993); Galbraith v. County of Santa Clara, 307 F.3d 1119, 1121(9th Cir. 2002). We therefore consider the allegations of the complaint as they relate first to the conduct of the individual assistant public defender representing Miranda, and then as they relate to the Public Defender, Harris, alleged to be the policy-maker for Clark County in the allocation of public resources for criminal defense.
The Claim Against the Assistant Public Defender
According to the allegations of the complaint, the conduct of Rigsby was well below the accepted standard of representation of a capital defendant. Given a client who had pled innocent and provided the names of dozens of witnesses who could provide information about the client's innocence and the guilt of the actual perpetrator, the lawyer did essentially nothing. He subpoenaed no witnesses and mounted no defense. We assume, for purposes of this case, his conduct was deficient and to the detriment of his client.
The issue before us, however, is whether in providing inadequate representation to this defendant, Rigsby was acting on behalf of the Clark County government, so as to become a state actor within the meaning of § 1983. He was, no doubt, paid by government funds and hired by a government agency. Nevertheless, his function was to represent his client, not the interests of the state or county. The result reached by both the district court and the three-judge panel in this case, in holding he was not a state actor, is required by the Supreme Court's decision in Polk County. Rigsby had assumed his role as counsel and thus had begun to perform a "lawyer's traditional functions." Polk County, 454 U.S. at 325, 102 S.Ct. 445. The Court in Polk County found that a public defender representing a client in the lawyer's traditional adversarial role was not a state actor. Id. The Court did not predicate its holding on whether the lawyer was in fact exercising "independent judgment." Id. at 324-25, 102 S.Ct. 445. Rather, it emphasized that it is the traditional lawyer role that controls. Id. at 322 n. 13, 324 n. 17, 325, 102 S.Ct. 445; Georgia v. McCollum, 505 U.S. 42, 54, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992) (holding that it is the "nature and context of the function" that is determinative).
It does not matter that Rigsby was employed by a public agency. "Except for the source of payment, . . . the duties and obligations are the same whether [Rigsby was] privately retained, appointed, or serving in a legal aid or defender program." Polk County, 454 U.S. at 318, 102 S.Ct. 445(internal quotation marks and citation omitted). In that traditional role, Rigsby was acting under the ethical standards of a lawyer-client relationship. He was "[h]eld to the same standards of competence and integrity as a private lawyer." Id. at 321, 102 S.Ct. 445. We therefore affirm the district court's dismissal of the complaint against the Assistant Public Defender, Rigsby, on the ground that, as a matter of law, he was not a state actor.
The Claim Against Harris, the County Public Defender
The situation with respect to Harris, the administrative head of the County Public Defender's Office, is different. Insofar as this case is concerned, he was not acting under any of the ethical standards of the lawyer-client relationship to which Rigsby was bound. The nature and context of Harris's function was administrative. He was, according to the complaint, acting solely as the administrative head of the agency, responsible for allocating the office's finite resources. Also according to the complaint, he instituted certain policies as part of his administrative functions that resulted in the miscarriage of justice represented by the plaintiff's death sentence and murder conviction. We deal with each of these policies in turn.
The Polygraph Policy
The policy in question, for purposes of this appeal, is an alleged policy that subjected each client to a polygraph test and then allocated the resources of the office according to the result of that test. According to the complaint, "if a client failed a polygraph examination, as determined by the subjective assessment of the polygraph examiner, minimal investigation would be conducted and a limited defense would be provided." Thus, if a client appeared on the basis of a polygraph to be lying about his innocence, he would be provided minimal resources to develop a defense. Construed in a light most favorable to the plaintiff, this allegation means that those clients who claimed innocence, but appeared to be guilty, were provided inadequate resources to mount an effective defense.
In evaluating the viability of the claim, we first must determine whether Harris's implementation of such a standard constitutes state action for purposes of § 1983. As we have seen, Rigsby, in undertaking the actual defense of Miranda, entered into an attorney-client relationship that placed him in a role that exempts him from liability under § 1983 as a state actor. Harris, however, is alleged to have been acting as the administrative head of the office in determining how the resources of Clark County would be distributed.
In allocating the county's funds, Harris was performing essentially an administrative role on behalf of Clark County. It was a function similar to that performed by the head of every government administrative office. See, e.g., Nev.Rev.Stat. chs. 180.080, 260.010,-.040,-.070,-.075 (requiring of state and county public defenders expenditure reports and providing for institution and regulation of public defender offices). It therefore materially differs from the relationship inherent in a public defender's representation of an individual client. Polk County, 454 U.S. at 322 n. 13, 324-25, 102 S.Ct. 445. The conduct alleged falls within the type of administrative action adumbrated by the Supreme Court in Polk County, when it recognized the possibility that a public defender's "administrative and possibly investigative functions" would constitute state action. Id. at 325, 102 S.Ct. 445; see also McCollum, 505 U.S. at 54, 112 S.Ct. 2348 (reaffirming that the Public Defender may be a state actor with respect to administrative or investigatory functions). We thus conclude that Harris was acting on behalf of Clark County in determining how the overall resources of the office were to be spent, and he qualifies as a state actor for purposes of § 1983.
That conclusion also is mandated by principles enunciated in Monell, in which the Court held that counties and municipalities are amenable to § 1983 liability for constitutional deprivations resulting from application of governmental custom or policy. The resource allocation policy alleged in this case constitutes a viable claim and subjects Harris to suit as a policymaker on behalf of Clark County. Monell, 436 U.S. at 690-91, 694, 98 S.Ct. 2018.
The remaining question is whether the alleged policy resulted in deprivation of the plaintiff's constitutional rights to effective representation of counsel. That constitutional guarantee is of effective representation of all defendants, regardless of guilt or innocence. See Gideon, 372 U.S. at 344, 83 S.Ct. 792; see also Holloway v. Arkansas, 435 U.S. 475, 489, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978). Here, according to the plaintiff, if the criminal defendant appeared on the basis of the polygraph test to be guilty, the office sharply curtailed the quality of the representation by limiting the investigatory and legal resources provided. The policy, while falling short of complete denial of counsel, is a policy of deliberate indifference to the requirement that every criminal defendant receive adequate representation, regardless of innocence or guilt. City of Canton, 489 U.S. at 389, 109 S.Ct. 1197. This is a core guarantee of the Sixth Amendment and a right so fundamental that any contrary policy erodes the principles of liberty and justice that underpin our civil rights. Gideon, 372 U.S. at 340-41, 344, 83 S.Ct. 792; Powell v. Alabama, 287 U.S. 45, 67-69, 53 S.Ct. 55, 77 L.Ed. 158 (1932); see also Alabama v. Shelton, 535 U.S. 654, 122 S.Ct. 1764, 1767, 152 L.Ed.2d 888 (2002).
We recognize, of course, that allocation of resources must be made upon some criteria and not all result in denial of effective representation. We hold only that the determination cannot be based solely or even principally on polygraph results. In so holding, we express no opinion on whether the result of a polygraph test may be used as one of a number of factors employed in determining the extent of investigative resources to devote to a particular defendant's case. We hold only that polygraph results cannot be determinative.
The state suggests that there was no actual prejudice to Miranda in the representation because a Nevada court did not overturn the conviction until fourteen years after the conviction. The state further suggests that it was the death of witnesses rather than the weakness of the state's case in the first place that caused it to decline to reprosecute. These are factual issues, however, that are beyond the purview of our review on a Rule 12(b)(6) dismissal, where only the allegations of the complaint are relevant.
We recognize that the result reached by the district court in dismissing the complaint was in part dictated by heightened pleading standards that are no longer applicable. In Branch v. Tunnell, 14 F.3d 449, 455 (9th Cir. 1994), we ruled such standards may apply after the Supreme Court's decision in Leatherman v. Tarrant County NICU, 507 U.S. 163, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). However, we recently held that intervening Supreme Court authority has overruled Branch. See Crawford-El v. Britton, 523 U.S. 574, 595, 118 S.Ct. 1584, 140 L.Ed.2d 759 (1998); see also Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512-14, 122 S.Ct. 992, 152 L.Ed.2d 1 (2002). We have now held that no heightened pleading standard applies unless required by the Federal Rules of Civil Procedure. Galbraith, 307 F.3d at 1124-25.
Under the standard that now applies, the complaint states claims against Harris and the County for the policy of allocating resources on the basis of apparent guilt or innocence. The Rule 12(b)(6) dismissal was inappropriate.
Policy of Assigning Inexperienced Attorneys
The complaint alleges that the County also had a policy of assigning the least-experienced attorneys to capital cases without providing any training, thus demonstrating callous indifference to the defendant's constitutional rights. The County responds that there was no callous disregard of constitutional rights within the meaning of City of Canton, because, as a matter of law, attorneys who have graduated from law school and passed the bar should be considered adequately trained to handle capital murder cases.
In City of Canton, the Supreme Court held that a failure to train subordinates may result in § 1983 liability where the failure amounts to deliberate indifference to the rights of persons with whom the subordinates come into contact. City of Canton, 489 U.S. at 388, 109 S.Ct. 1197. The district court found the allegations of the complaint insufficient under the heightened pleading standard then in effect, relying on Jones v. Community Redevelopment Agency, 733 F.2d 646, 649 (9th Cir. 1984). The panel essentially applied a similar standard by holding that the assignment of Rigsby to this particular case did not evince a policy of deliberate indifference. Miranda, 279 F.3d at 1111. The complaint, however, construed liberally, alleges not merely an isolated assignment of an inexperienced lawyer, but a deliberate pattern and policy of refusing to train lawyers for capital cases known to the county administrators to exert unusual demands on attorneys. Under pleading standards now applicable, see Galbraith, 307 F.3d at 1125, the allegations are sufficient to create a claim of "deliberate indifference to constitutional rights" in the failure to train lawyers to represent clients accused of capital offenses.
The judgment of the district court dismissing the complaint against Rigsby is AFFIRMED. The judgment in favor of defendants Harris and Clark County is REVERSED and the case is REMANDED to the district court for further proceedings. Each party is to bear its own costs.