Rutledge v. County of Sonoma et al, No. 4:2007cv04274 - Document 239 (N.D. Cal. 2009)
Court Description: ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT, DOCKET NOS. 159, 171, 182 AND 183 by Judge Claudia Wilken; re granting 171 Motion for Summary Judgment; granting 182 Motion to Amend/Correct. (ls, COURT STAFF) (Filed on 9/22/2009)
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Rutledge v. County of Sonoma et al Doc. 239 1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 FOR THE NORTHERN DISTRICT OF CALIFORNIA 6 7 8 No. C 07-4274 CW ZACHARIAH JUDSON RUTLEDGE, Plaintiff, 9 United States District Court For the Northern District of California 10 11 ORDER GRANTING DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT (Docket Nos. 159, 171, 182 & 183) v. COUNTY OF SONOMA, et al., Defendants. 12 / 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Defendant Michael Potts and Defendants County of Sonoma, Sonoma County Sheriff’s Department, Sonoma County District Attorney’s Office, Stephan Passalacqua, J. Michael Mullins, Greg Jacobs, Christine M. Cook, Russell L. Davidson and James Patrick Casey (collectively, the County Defendants) separately move for summary judgment or, in the alternative, for partial summary judgment. motions. Plaintiff Zachariah Judson Rutledge opposes both The matter was heard on August 6, 2009. Having considered oral argument and all of the papers submitted by the parties, the Court grants County Defendants’ motion and Defendant Potts’ motion. BACKGROUND This case arises out of Plaintiff’s prosecution for two murders that occurred in 1998. Plaintiff was acquitted of these Dockets.Justia.com 1 crimes after a jury trial. 2 of the individuals who were involved in his prosecution. 3 Plaintiff claims that in August, 2000, Defendant Potts, a 4 criminalist for the California Department of Justice, authored a 5 forensic laboratory report containing false statements. 6 Specifically, Plaintiff alleges the report stated that a paint 7 sample found on a knife at the crime scene visually had the same 8 sequence of colored layers as a paint sample collected from 9 Plaintiff’s residence, but did not disclose that the paints may 10 United States District Court For the Northern District of California He now charges malfeasance by a number 11 have been chemically different. Mr. Potts allegedly colluded with Defendant Casey, a deputy 12 district attorney, and Defendant Davidson, a detective with the 13 Sonoma County Sheriff’s Department, to present a declaration 14 containing the false evidence described above to a magistrate in 15 May, 2002 to secure a warrant for Plaintiff’s arrest. 16 claims that Mr. Casey and Mr. Davidson omitted exculpatory evidence 17 from the declaration, and included fabricated evidence. 18 was arraigned in mid-May, 2002. 19 Notice (RJN), Ex. B at 3.1 20 Plaintiff Plaintiff County Defs.’ Req. for Judicial On October 30, 2002, the superior court ordered the 21 prosecution to produce "any and all notes pertaining to forensic 22 tests or analyses performed in this case" to Plaintiff’s attorney. 23 See Pl.’s Opp’n Ex. 39 at 9; Third Am. Compl. ¶¶ 46-47; County 24 Defs.’ RJN, Ex. B at 3. 25 Potts to notify him that Plaintiff’s attorney would be requesting 26 Mr. Potts’ bench notes, which contained Mr. Potts’ raw observations On the same day, Mr. Casey telephoned Mr. 27 1 28 The Court grants the Requests for Judicial Notice by County Defendants and Mr. Potts (Docket Nos. 168 & 172). 2 United States District Court For the Northern District of California 1 and data. 2 Mr. Potts, however, produced only approximately one-third of his 3 bench notes to Plaintiff's attorney. 4 18; Jacobs Decl. Ex. B (Potts’ memorandum to Casey). 5 claimed that he believed the public defender’s office did not 6 request his entire set of notes. 7 a memorandum written by Mr. Potts at the same time he sent his 8 bench notes to the public defender’s office, Mr. Potts informed Mr. 9 Casey that he needed to perform additional tests on the paint in 10 order to confirm the match between the paint on the knife and the 11 paint retrieved from Plaintiff’s residence. 12 at 6; Jacobs Decl. Ex. B. 13 show that Mr. Casey and Mr. Potts concealed the infirmity in the 14 forensic report. 15 18. 16 See Pl.’s Opp’n Ex. 33 at 3; Pl.’s Opp’n Ex. 36 at 77. See Pl.’s Opp’n Ex. 39 at 4Mr. Potts See Pl.’s Opp’n Ex. 39 at 10. In See Pl.’s Opp’n Ex. 36 Plaintiff alleges that these actions See Pl.’s Opp’n at 9-11; Pl.’s Opp’n Ex. 39 at 4- On November 15, 2002, Mr. Potts provided the following 17 testimony at Plaintiff’s first preliminary hearing, which Plaintiff 18 alleges was false: 19 20 21 22 23 24 25 26 [T]he paint on the knife matches the paint on the other two items [from Plaintiff’s residence], not only in color, but also layer sequence and type of paint. . . . [W]e’re talking about separate layers and four different colored layers as well. And also the paint on this is the architectural type paint in that it’s different in chemical composition from paint that you would find like, for instance, on automobiles and things of that nature. . . . It not only matches in color, in other words, the color of the paint on People’s 13 and 12 is the same as the paint on the knife, but also it’s the layer sequence, and the colors of each of those layers is the same that appears on the knife [and] matches the same chemical composition of each one of those layers that you can see on People’s 12 and 13. 27 Pl.’s Opp’n Ex. 69 at 172. 28 that the odds were at least “a million to one” that the paint would Mr. Potts also testified at the hearing 3 1 2 Id. at 173-74. Plaintiff was held to answer the charges. Plaintiff claims that Mr. Potts’ testimony was based on an 3 obsolete and inapplicable article on paint comparison (the Wales 4 study), and that Mr. Potts was aware of this fact and the 5 consequent weakness in his testimony. 6 bench notes been provided, Plaintiff claims, he would have been 7 able to demonstrate the unreliability of Mr. Potts’ testimony. 8 United States District Court For the Northern District of California match. Had Mr. Potts’ undisclosed On January 27, 2004, Mr. Potts sent Defendant Jacobs, who by 9 that time had taken over the prosecution of the case from Mr. 10 Casey, a letter in which he admitted to “over-simplifying” his 11 testimony regarding the examination he had performed on the paint 12 samples. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 In particular, the letter stated: My response [at the preliminary hearing] implies that I conducted a chemical analysis of the paint on the molding. In fact, I had only performed a microscopical computation of the paint on the knife with the paint on the molding. Furthermore, in reviewing the transcript, it could be interpreted that I performed an analysis on each individual colored layer of paint on the knife. In fact, because the paint on the knife was in the form of a smear, I was unable to fully separate the paint transfers into distinct individual layers; and therefore, analysis was conducted on more than one layer at the time. Jacobs Decl. Ex. A. On March 8, 2004, Plaintiff moved to dismiss the charges against him based on “recently discovered misrepresentations made by senior criminalist Michael Potts of the California Department of Justice at the preliminary examination.” County Defs.’ RJN Ex. B at 13 (Docket No. 168.) This motion was denied. Plaintiff renewed his motion to dismiss in May, 2004 based on the prosecution’s failure to disclose all of Mr. Potts’ bench notes before the first 4 1 preliminary hearing. 2 110:27-111:8; Jacobs Decl. Ex. B. 3 motion to dismiss, the presiding judge reviewed the entirety of the 4 evidence presented at the preliminary hearing. 5 Potts’ testimony was central to the prosecution’s case: 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 See id. at 30; County Defs.’ RJN Ex. D In ruling on Plaintiff’s renewed She found that Mr. [U]pon weighing all the evidence, the evidence produced at the preliminary hearing and considering the undisclosed evidence and the effect of the undisclosed evidence and the effect of the testimony of Mr. Potts, this Court finds that there is a reasonable probability that the magistrate would not have found probable cause [in the absence of Mr. Potts’ testimony]. The Court finds that the exculpatory value of the suppressed evidence outweighs the possible incriminating evidence presented against the defendant at the preliminary hearing. But during one of the arguments that [Mr. Rutledge’s counsel] made that this Court finds compelling, it’s not only what wasn’t produced, it’s what was produced. I think there’s sufficient reason for this Court to turn over the preliminary hearing based upon what was not produced, but I’m more concerned about what was produced, and the effect of having this marginal testimony remaining and the effect of Mr. Potts’ statement that based upon all of his analysis it was a million to 1 that all of these layers matched. It had to have had an unbelievable -- well, completely believable effect upon the magistrate, and it completely outweighs the rest of this evidence so the Court is granting the motion. Pl.’s Opp’n Ex. 39 at 32-33. Accordingly, the case was dismissed on June 14, 2004. 22 next day, the prosecution filed another complaint against 23 Plaintiff. 24 at which Mr. Potts did not testify. 25 answer. 26 acquitted. The In March, 2006, a second preliminary hearing was held, Plaintiff was again held to The action proceeded to trial, after which Plaintiff was 27 28 5 United States District Court For the Northern District of California 1 PROCEDURAL HISTORY 2 Plaintiff filed a third amended complaint on July 29, 2008 3 alleging twelve causes of action. 4 26, 2008, this Court dismissed with prejudice Plaintiff’s first 5 (state law intentional/negligent infliction of emotional distress), 6 third (state law false arrest), fourth (state law false 7 imprisonment) and ninth (state law violation of constitutional 8 rights) causes of action against Defendant Potts. 9 The September, 2008 order also dismissed with prejudice Plaintiff’s 10 twelfth cause of action for state law malicious prosecution against 11 all Defendants. On September (Docket No. 60.) Id. 12 13 (Docket No. 49.) LEGAL STANDARD Summary judgment is properly granted when no genuine and 14 disputed issues of material fact remain, and when, viewing the 15 evidence most favorably to the non-moving party, the movant is 16 clearly entitled to prevail as a matter of law. 17 P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); 18 Eisenberg v. Ins. Co. of N. Am., 815 F.2d 1285, 1288-89 (9th Cir. 19 1987). 20 Fed. R. Civ. The moving party bears the burden of showing that there is no 21 material factual dispute. 22 the opposing party’s evidence, if supported by affidavits or other 23 evidentiary material. 24 F.2d at 1289. 25 favor of the party against whom summary judgment is sought. 26 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 27 587 (1986); Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 28 1551, 1558 (9th Cir. 1991). Therefore, the court must regard as true Celotex, 477 U.S. at 324; Eisenberg, 815 The court must draw all reasonable inferences in 6 1 Material facts which would preclude entry of summary judgment 2 are those which, under applicable substantive law, may affect the 3 outcome of the case. 4 are material. 5 (1986). 6 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 Where the moving party does not bear the burden of proof on an 7 issue at trial, the moving party may discharge its burden of 8 production by either of two methods. 9 Co., Ltd., v. Fritz Cos., Inc., 210 F.3d 1099, 1106 (9th Cir. 10 United States District Court For the Northern District of California The substantive law will identify which facts 2000). 11 The moving party may produce evidence negating an essential element of the nonmoving party’s case, or, after suitable discovery, the moving party may show that the nonmoving party does not have enough evidence of an essential element of its claim or defense to carry its ultimate burden of persuasion at trial. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Nissan Fire & Marine Ins. Id. If the moving party discharges its burden by showing an absence of evidence to support an essential element of a claim or defense, it is not required to produce evidence showing the absence of a material fact on such issues, or to support its motion with evidence negating the non-moving party’s claim. Id.; see also Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888 (1990); Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991). If the moving party shows an absence of evidence to support the non-moving party’s case, the burden then shifts to the non-moving party to produce “specific evidence, through affidavits or admissible discovery material, to show that the dispute exists.” Bhan, 929 F.2d at 1409. If the moving party discharges its burden by negating an 7 1 essential element of the non-moving party’s claim or defense, it 2 must produce affirmative evidence of such negation. 3 F.3d at 1105. 4 burden then shifts to the non-moving party to produce specific 5 evidence to show that a dispute of material fact exists. 6 1103. United States District Court For the Northern District of California 7 Nissan, 210 If the moving party produces such evidence, the Id. at Where the moving party bears the burden of proof on an issue 8 at trial, it must, in order to discharge its burden of showing that 9 no genuine issue of material fact remains, make a prima facie 10 showing in support of its position on that issue. 11 Nor-Cal Plumbing, Inc., 48 F.3d 1465, 1471 (9th Cir. 1994). 12 is, the moving party must present evidence that, if uncontroverted 13 at trial, would entitle it to prevail on that issue. 14 Int’l Shortstop, Inc. v. Rally’s, Inc., 939 F.2d 1257, 1264-65 (5th 15 Cir. 1991). 16 forth specific facts controverting the moving party’s prima facie 17 case. 18 “burden of contradicting [the moving party’s] evidence is not 19 negligible.” 20 resolution of the relevant issue is “highly fact specific.” See id. 21 DISCUSSION 22 I. UA Local 343 v. That Id.; see also Once it has done so, the non-moving party must set UA Local 343, 48 F.3d at 1471. Id. The non-moving party’s This standard does not change merely because Immunity 23 A. 24 County Defendants assert that the prosecutor Defendants Absolute Immunity for Prosecutor Defendants 25 (Casey, Jacobs, Cook, Passalacqua and Mullins) are absolutely 26 immune from liability for Plaintiff’s claims because their actions 27 28 8 1 related to the criminal prosecution of Plaintiff.2 2 Defendants assert absolute immunity under federal case law and 3 state statutes. 4 not absolutely immune because their conduct was investigative, 5 served a police function or was otherwise non-judicial (e.g., the 6 fabrication of evidence). 7 8 United States District Court For the Northern District of California 9 1. County Plaintiff contends that prosecutor Defendants are Federal and State Prosecutorial Immunities Under federal law, absolute immunity bars claims for damages against prosecutors performing “quasi-judicial” functions. Broam 10 v. Bogan, 320 F.3d 1023, 1029 (9th Cir. 2003). 11 absolute immunity bears the burden of establishing that it is 12 warranted. 13 (1993). 14 immunity only to federal claims. 15 568 F.3d 1063 (9th Cir. 2009); Rosenthal v. Vogt, 229 Cal. App. 3d 16 69 (1991). 17 The party asserting Antoine v. Byers & Anderson, Inc., 508 U.S. 429, 432 Courts generally apply federal absolute prosecutorial See, e.g., Cousins v. Lockyer, “[I]n deciding whether to accord a prosecutor immunity from a 18 civil suit for damages, a court must first determine whether a 19 prosecutor has performed a quasi-judicial function. 20 was part of the judicial process, the prosecutor is entitled to the 21 protection of absolute immunity whether or not he or she violated 22 the civil plaintiff’s constitutional rights.” 23 1029 (internal citation omitted); see Buckley v. Fitzsimmons, 509 24 U.S. 259, 272-73 (1993). 25 immune from liability for filing an information or motion, see 26 Kalina v. Fletcher, 522 U.S. 118, 129 (1997), “for failure to If the action Broam, 320 F.3d at For example, a prosecutor is absolutely 27 2 28 County Defendants do not claim absolute immunity for the state defamation claim against Defendant Cook. 9 1 investigate the accusations against a defendant before filing 2 charges,” “for the knowing use of false testimony at trial,” for 3 his or her decision not to preserve or turn over exculpatory 4 material in violation of Brady v. Maryland, 373 U.S. 83 (1963), and 5 “for gathering additional evidence after probable cause is 6 established or criminal proceedings have begun,” Broam, 320 F.3d at 7 1029-30. 8 United States District Court For the Northern District of California 9 If a prosecutor performs administrative or investigatory functions, however, he or she is entitled to only qualified, not 10 absolute, immunity. 11 129 S. Ct. 855, 861 (2009); Kalina, 522 U.S. at 125-29. 12 Prosecutors are not absolutely immune, for example, when they take 13 part in the preliminary gathering of evidence that may ripen into a 14 potential prosecution, fabricate evidence or make out-of-court 15 statements in a press conference. 16 Nor are prosecutors absolutely immune when they give advice to the 17 police in the investigative phase of a criminal case before trial, 18 see Burns v. Reed, 500 U.S. 478, 495-96 (1991), or act as a 19 complaining witness by preparing a declaration in support of an 20 arrest warrant, see Kalina, 522 U.S. at 129-30; Morley v. Walker, 21 175 F.3d 756, 761 (9th Cir. 1999). 22 See Van de Kamp v. Goldstein, ___ U.S. ___, See Buckley, 509 U.S. at 273-77. California Government Code § 821.6 states, “A public employee 23 is not liable for an injury caused by his instituting or 24 prosecuting any judicial or administrative proceeding within the 25 scope of his employment, even if he acts maliciously and without 26 probable cause.” 27 preparation for formal proceedings, including investigation, which 28 is an essential step toward the institution of formal proceedings.” Immunity under § 821.6 covers “actions taken in 10 United States District Court For the Northern District of California 1 Paterson v. City of Los Angeles, 175 Cal. App. 4th 1393, 1405 2 (2009) (citation omitted). 3 in malicious prosecution cases involving “the government employees’ 4 acts in filing charges or swearing out affidavits of criminal 5 activity against the plaintiff.” 6 Angeles, 12 Cal. 3d 710, 720 (1974). 7 emotional distress claims to the extent that the conduct challenged 8 involves the institution of formal proceedings. 9 County of Riverside, 28 Cal. App. 4th 1205, 1209-10 (1994). It also applies to government employees Sullivan v. County of Los The immunity extends to Amylou R. v. 10 Section 821.6 does not apply, however, to false arrest or 11 false imprisonment claims where the employee “knowingly imprison[s] 12 a person without proper legal authority.” 13 720; see also Asgari v. City of Los Angeles, 15 Cal. 4th 744, 752 14 (1997). 15 “public employee [takes] a very active role in actually securing 16 the arrest warrant and [participates] in having it served by a 17 fellow [public employee] under his own authority.” 18 Bay Area Rapid Transit Dist., 215 Cal. App. 3d 7, 17 (1989). 19 false arrest and imprisonment claims arising out of criminal 20 prosecutions may challenge only conduct preceding the suspect’s 21 arraignment. 22 § 821.6 does not immunize a public employee from false arrest and 23 imprisonment claims for knowing misconduct occurring before a 24 suspect’s arraignment. 25 Superior Court, 78 Cal. App. 4th 212, 221 (2000). 26 immunities do not apply to federal constitutional claims. 27 Asgari, 15 Cal. 4th at 758 n.11. Sullivan, 12 Cal. 3d at A public employee is not shielded from liability where the Asgari, 15 Cal. 4th at 757-58. Harden v. S.F. State In other words, See id.; see also County of Los Angeles v. 28 11 State law See 1 2 Defendant Casey Plaintiff challenges Defendant Casey’s conduct before 3 Plaintiff’s May, 2002 arrest, before the first preliminary hearing 4 in November, 2002 and during the first preliminary hearing. 5 deputy district attorney, Mr. Casey assumed responsibility for the 6 double homicide in the summer of 2001 before Plaintiff was 7 arrested. 8 the prosecution of Plaintiff since “shortly after” the November, 9 2002 preliminary hearing. 10 United States District Court For the Northern District of California 2. Casey Decl. ¶¶ 4-5. As a Mr. Casey has not been involved in Casey Decl. ¶ 5. Plaintiff alleges that Defendant Casey colluded with 11 Defendants Davidson and Potts to present a declaration containing 12 false evidence to a magistrate in order to secure a warrant for 13 Plaintiff’s arrest. 14 omitted exculpatory evidence from the warrant. 15 alleges that Mr. Casey, along with Mr. Potts, withheld exculpatory 16 evidence before the preliminary hearing and conspired to present 17 false testimony from Mr. Potts at the preliminary hearing. 18 19 a. Plaintiff alleges these Defendants also Plaintiff further Before Plaintiff’s May, 2002 Arrest Plaintiff argues that, before Plaintiff’s arrest, Mr. Casey 20 was acting as an investigator, not as a prosecutor, because he had 21 conversations and meetings with Mr. Davidson and then Detective 22 Bradford Burke, asked Mr. Davidson to prepare a synopsis and 23 requested that Mr. Davidson or Mr. Burke conduct interviews with 24 witnesses. 25 that the arrest declaration contained false information and Mr. 26 Casey knew of the falsity when the declaration was presented to the 27 magistrate. 28 fabricated evidence or instructed Mr. Davidson to include witness The pre-arrest conduct that Plaintiff challenges is However, Plaintiff presents no evidence that Mr. Casey 12 1 statements that Mr. Casey knew were false. 2 from which a jury could infer that Mr. Casey had knowledge of any 3 falsity. 4 federal or state immunities apply because Plaintiff has not 5 presented evidence that Mr. Casey had knowledge of any falsity in 6 the arrest warrant declaration. 7 United States District Court For the Northern District of California 8 Nor is there evidence For this conduct, the Court need not determine whether b. Before November, 2002 Preliminary Hearing Plaintiff claims that Mr. Casey acted as an investigator, not 9 a prosecutor, before the November, 2002 preliminary hearing because 10 he participated in an interview of James Larry Lewis Jr. just prior 11 to the preliminary hearing. 12 spoke with other witnesses in preparation for the preliminary 13 hearing. 14 2004). 15 Pl.’s Opp’n Ex. 44 at 122-23. He also See Pl.’s Opp’n Ex. 36 at 90 (Davidson Testimony, May 19, Mr. Casey also had several conversations and meetings with 16 Defendant Potts in the weeks before the preliminary hearing. 17 Opp’n Ex. 36 at 58-64 (Casey Testimony, May 19, 2004). 18 interactions, Mr. Potts only produced approximately one-third of 19 his bench notes to Plaintiff’s attorney, despite the superior 20 court’s order requiring the prosecution to disclose all relevant 21 notes. 22 against Plaintiff was based in part on the prosecution’s failure to 23 disclose exculpatory evidence, including Mr. Potts’ complete bench 24 notes. 25 versions of the circumstances of the withholding of the bench notes 26 are conflicting. 27 versions); see also Pl.’s Opp’n Ex. 36 (Potts testimony, May 19, 28 2004). Pl.’s After these As noted above, the superior court’s dismissal of the case See Pl.’s Opp’n Ex. 39. Mr. Potts’ and Mr. Casey’s See Pl.’s Opp’n Ex. 39 at 9-17 (summary of both 13 United States District Court For the Northern District of California 1 Nonetheless, Mr. Casey’s conduct before the first preliminary 2 hearing was related to the judicial process because it was 3 undertaken in preparation for the preliminary hearing. 4 is therefore entitled under federal law to absolute immunity on the 5 federal claims based on such conduct, including any failure to 6 disclose exculpatory evidence, even if his conduct violated 7 Plaintiff’s rights. 8 F.3d at 1029-30. 9 Government Code § 821.6 to immunity on the state law malicious Mr. Casey See Buckley, 509 U.S. at 272-73; Broam, 320 Moreover, he is also entitled under California 10 prosecution, emotional distress and civil rights claims. 11 cannot be held liable for state law false arrest and imprisonment 12 because these claims do not apply to conduct that followed 13 Plaintiff’s May, 2002 arraignment. 14 (holding that a claim of false arrest and imprisonment applies to 15 conduct before arraignment). 16 17 c. Mr. Casey See Asgari, 15 Cal. 4th at 757 November, 2002 Preliminary Hearing Mr. Casey was the prosecutor who handled the November, 2002 18 preliminary hearing. 19 preliminary hearing, including Mr. Potts, Mr. Davidson and Mr. 20 Lewis Jr. 21 and state law against any claims for his conduct at the preliminary 22 hearing, even if he conspired to elicit and did elicit false 23 testimony, because it was part of the judicial process after 24 criminal proceedings began. 25 Gov. Code § 821.6. He examined multiple witnesses at the Mr. Casey is entitled to absolute immunity under federal See Broam, 320 F.3d at 1029-30; Cal. 26 Accordingly, summary judgment is granted on Plaintiff’s 27 federal and state law claims against Defendant Casey on the basis 28 of federal and state immunities and lack of evidence. 14 1 2 Defendant Jacobs Plaintiff contends that Assistant District Attorney Jacobs’ 3 conduct was investigative when he interviewed new witnesses or 4 directed Mr. Davidson to interview witnesses, and concealed 5 exculpatory evidence. 6 Mr. Jacobs fabricated evidence, concealed exculpatory evidence or 7 presented false testimony. 8 this matter in 2003, after the first preliminary hearing and during 9 pretrial motion practice. 10 United States District Court For the Northern District of California 3. However, Plaintiff presents no evidence that Further, Mr. Jacobs became involved in See Jacobs Decl. ¶ 3. Due to his prosecutorial role, Mr. Jacobs is entitled under 11 federal law to absolute immunity against any federal claims for 12 damages for his conduct, even for any alleged Brady violation, 13 because it was part of the judicial process after criminal 14 proceedings began. 15 also entitled under California Government Code § 821.6 to immunity 16 from state law claims related to this conduct. 17 immune, summary judgment would nonetheless be proper because 18 Plaintiff failed to present evidence of Mr. Jacobs’ wrongdoing. 19 Thus, summary judgment is granted as to all federal and state law 20 claims against Defendant Jacobs. 21 22 4. See Broam, 320 F.3d at 1029-30. Mr. Jacobs is Even if he were not Defendant Cook In the third amended complaint, the only conduct by Defendant 23 Cook that Plaintiff challenges is her out-of-court statements 24 during a radio broadcast. 25 immunity for the state defamation claim against Defendant Cook. 26 County Defendants do not claim absolute In his opposition, however, Plaintiff challenges other conduct 27 by Ms. Cook. 28 Mr. Passalacqua, filed a new complaint against Plaintiff despite Plaintiff asserts that Ms. Cook, with Mr. Jacobs and 15 United States District Court For the Northern District of California 1 knowing that Tyson McLain committed the murders. 2 her conduct was investigatory, not prosecutorial, because she and 3 Kris Allen re-interviewed James Larry Lewis Sr. 4 second complaint and the re-interview of Mr. Lewis Sr. occurred 5 during the criminal proceedings. 6 filing the second complaint and re-interviewing Mr. Lewis Sr. 7 during the proceedings, she is entitled under federal law to 8 absolute immunity against any claims for damages for this conduct 9 because it was part of the judicial process. He claims that The filing of the Even if Ms. Cook were involved in See Kalina, 522 U.S. 10 at 129 (absolute immunity for filing information); Broam, 320 F.3d 11 at 1029-30. 12 state law claims because this conduct involved the prosecution of a 13 criminal case in court. 14 apply, Plaintiff has provided no evidence showing intentional 15 misconduct on the part of Ms. Cook. 16 to all federal and state law claims against Ms. Cook. 17 defamation claim against Ms. Cook is discussed below. 18 19 20 21 22 23 24 25 26 27 28 5. Ms. Cook is entitled under § 821.6 to immunity for Moreover, even if these immunities did not Summary judgment is granted as The Supervisor District Attorney Defendants Passalacqua and Mullins Plaintiff alleges that the District Attorney, Defendant Passalacqua, and the former District Attorney, Defendant Mullins, failed to establish procedures to ensure communication of all relevant information on each case to every lawyer, to supervise or train prosecutors to disclose exculpatory evidence and to supervise or train prosecutors to refrain from using perjured testimony. Third Am. Compl. ¶¶ 78, 80. Plaintiff also claims that these supervisor Defendants enacted and/or maintained policies that established discovery procedures which interfered with the 16 1 2 Id. at ¶¶ 79, 81. County Defendants argue that supervisor Defendants Passalacqua 3 and Mullins are entitled to absolute immunity for any lack of 4 supervision or failure to establish procedures for conduct 5 intimately related to the judicial phase of the criminal process. 6 Plaintiff does not respond to the County Defendants’ argument in 7 his opposition. 8 been dismissed (Docket No. 220). 9 United States District Court For the Northern District of California disclosure of exculpatory evidence. The claims against Defendant Mullins have already The Supreme Court recently held that supervisor prosecutors 10 were entitled to absolute immunity for claims that the prosecution 11 failed to disclose impeachment material due to the supervisors’ 12 failure to train properly, supervise and establish an information 13 system regarding impeachment material. 14 ___ U.S. ___, 129 S. Ct. 855, 861-62 (2009). 15 was challenging the District Attorney’s administrative procedures, 16 the Supreme Court reasoned that absolute immunity extended to 17 “administrative obligation[s]” that are “directly connected with 18 the conduct of a trial.” 19 the challenged acts “necessarily require legal knowledge and the 20 exercise of related discretion.” 21 Id. at 862. Van de Kamp v. Goldstein, Though the plaintiff The Court further noted that Id. Under Van de Kamp, supervisor Defendant Passalacqua is 22 entitled under federal law to absolute immunity for Plaintiff’s 23 federal claims because the disclosure of exculpatory evidence and 24 use of perjured testimony are “directly connected with the conduct 25 of a trial” and “require legal knowledge and the exercise of 26 related discretion.” 27 immunity under California Government Code § 821.6 for Plaintiff’s 28 state law claims because his conduct related to his prosecution of See id. Mr. Passalacqua also is entitled to 17 1 a criminal case in court. 2 federal and state law claims against Defendant Passalacqua. 3 B. 4 County Defendants argue that Defendant Davidson is entitled to Qualified Immunity For Defendant Davidson 5 qualified immunity. 6 entitled to qualified immunity because he ignored exculpatory 7 evidence that would negate a probable cause finding and the arrest 8 warrant was based on false evidence he fabricated. 9 United States District Court For the Northern District of California Summary judgment is granted as to all Plaintiff responds that Mr. Davidson is not The defense of qualified immunity protects government 10 officials “from liability for civil damages insofar as their 11 conduct does not violate clearly established statutory or 12 constitutional rights of which a reasonable person would have 13 known.” 14 of qualified immunity protects “all but the plainly incompetent or 15 those who knowingly violate the law.” 16 194, 202 (2001) (quoting Malley v. Briggs, 475 U.S. 335, 341 17 (1986)). 18 Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The rule Saucier v. Katz, 533 U.S. The Court need not reach the question of qualified immunity 19 because Plaintiff presents no evidence of wrongdoing by Mr. 20 Davidson. 21 arrest, false imprisonment and malicious prosecution by Defendant 22 Davidson in violation of the Fourth Amendment. 23 claims that Mr. Davidson withheld exculpatory evidence during the 24 criminal proceedings in violation of Plaintiff’s due process 25 rights. 26 on allegations that Defendant Davidson submitted a false 27 declaration in support of the arrest warrant, fabricated evidence, 28 and withheld exculpatory evidence. Plaintiff makes § 1983 and state law claims of false Third Am. Compl. ¶¶ 187-93. 18 Plaintiff also Plaintiff’s claims are based There is no evidence from which 1 a jury could reasonably infer that Mr. Davidson’s declaration was 2 false, that he fabricated evidence or that he withheld exculpatory 3 evidence during the criminal proceedings. 4 statements and hypotheses do not constitute evidence. United States District Court For the Northern District of California 5 Plaintiff’s conclusory Plaintiff contends that Mr. Davidson’s declaration was false 6 because it referred to Mr. Potts’ August, 2000 report which was 7 false. 8 including language from the report. 9 Potts’ Decl. Ex. A. Mr. Davidson’s declaration described Mr. Potts’ report, County Defs.’ RJN Ex. A at 20; Plaintiff has not submitted evidence that Mr. 10 Davidson knew of the alleged falsity of Mr. Potts’ report at the 11 time of his May, 2002 declaration. 12 Plaintiff alleges that Mr. Davidson misrepresented Plaintiff’s 13 alibi in the arrest warrant declaration by including statements 14 suggesting that Plaintiff had said that he was with two individuals 15 at the same time on the evening before the discovery of the 16 murders, and that the two individuals said they had not been 17 together. 18 time with these two individuals that evening, not that both 19 individuals were with him together. 20 Davidson did not state that Plaintiff said that he was actually 21 with these two individuals at the same time that evening. 22 Defs.’ RJN Ex. A at 17, 19-20. 23 the two individuals had been asked whether they were with Plaintiff 24 at the same time. 25 warrant declaration was false. 26 Plaintiff claims that he told Mr. Davidson that he spent In his declaration, Mr. County At most, Mr. Davidson reported that This does not amount to evidence that the arrest Plaintiff also asserts that Mr. Davidson fabricated the date 27 of Debbie Becker’s statements in his arrest warrant declaration. 28 Plaintiff argues that Mr. Davidson falsely declared that she made 19 1 certain statements in October, 1998. 2 Department issued a press release announcing a reward in the case. 3 Plaintiff hypothesizes that Mr. Davidson lied about the date of Ms. 4 Becker’s first statements in order to misrepresent that she made 5 them before the reward was announced. 6 unsupported. United States District Court For the Northern District of California 7 In July, 1999, the Sheriff’s This hypothesis is Plaintiff further asserts that statements by Mr. Lewis Sr. 8 described in Mr. Davidson’s declaration were not reliable because 9 Mr. Lewis Sr. later made inconsistent statements in his interview 10 with Ms. Cook. 11 the time his declaration was presented to the magistrate in May, 12 2002 that the statements by Mr. Lewis Sr. were unreliable; Mr. 13 Lewis Sr. made the inconsistent statements after 2002. 14 But there is no evidence that Mr. Davidson knew at Plaintiff has failed to present any evidence that Mr. Davidson 15 engaged in conduct resulting in Plaintiff’s false arrest, false 16 imprisonment or malicious prosecution. 17 which a jury could reasonably infer such misconduct. 18 summary judgment is granted as to all § 1983 and state law claims 19 against Mr. Davidson. 20 misconduct, there is likewise no evidence that Mr. Davidson 21 intentionally or negligently inflicted emotional distress upon 22 Plaintiff or denied Plaintiff a fair trial or due process. 23 summary judgment is granted as to all federal and state law claims 24 against Mr. Davidson.3 Nor is there evidence from Accordingly, Further, without evidence of Mr. Davidson’s Thus, 25 3 26 27 28 County Defendants also assert immunity for Mr. Davidson from state law claims under California Civil Code § 43.55 and California Penal Code § 847(b)(1). California Civil Code § 43.55 provides immunity from liability to “any peace officer who makes an arrest pursuant to a warrant of arrest regular upon its face if the peace officer in making the arrest acts without malice and in the 20 United States District Court For the Northern District of California 1 C. 2 Mr. Potts argues that he is entitled to absolute immunity for Absolute Immunity for Defendant Potts 3 his testimony at the preliminary hearing and his alleged 4 involvement in withholding material evidence. 5 contend that there is no immunity for conspiracies where conduct in 6 addition to the false testimony is challenged. 7 entirely correct. Plaintiff appears to Neither party is 8 A witness has absolute immunity from civil liability for his 9 or her testimony, including false testimony, and from allegations 10 of conspiracy to commit perjury. 11 1099, 1101-02 (9th Cir. 2000); see Briscoe v. LaHue, 460 U.S. 325, 12 329-31 (1983). 13 non-testimonial conduct” or shield conduct not “inextricably tied” 14 to the testimony, such as fabricating or tampering with evidence, 15 or “effort[s] to keep certain witnesses or physical evidence from 16 the opposing party.” 17 (9th Cir. 2001); see Cunningham v. Gates, 229 F.3d 1271, 1291 (9th 18 Cir. 2000). 19 his or her conduct simply because of his or her role as a witness. 20 Paine 265 F.3d at 982. 21 22 Franklin v. Terr, 201 F.3d 1098, But this immunity is limited. It “does not shield Paine v. City of Lompoc, 265 F.3d 975, 981-82 A witness is not “insulated from liability” for all of Therefore, to the extent that Plaintiff’s claims are based on Mr. Potts’ testimony at the preliminary hearing, even if that 23 24 25 26 27 28 reasonable belief that the person arrested is the one referred to in the warrant.” California Penal Code § 847(b)(1) provides peace officers and law enforcement officers with immunity from liability for false arrest or false imprisonment when “[t]he arrest was lawful, or the peace officer, at the time of the arrest, had reasonable cause to believe the arrest was lawful.” There is no evidence showing that Mr. Davidson acted with malice or without a reasonable belief that the arrest was lawful. Thus, Mr. Davidson would also be immune from Plaintiff’s state law claims. 21 1 testimony was false as Plaintiff alleges, Mr. Potts is entitled to 2 absolute immunity. 3 from allegations of a § 1983 conspiracy to commit perjury during 4 his testimony. 5 immunity from Plaintiff’s § 1983 claims for any non-testimonial 6 conduct or conduct not “inextricably tied” to his testimony at the 7 preliminary hearing, including allegations of falsifying his 8 August, 2000 report or withholding potentially exculpatory 9 evidence, or conspiring to falsify or withhold evidence. United States District Court For the Northern District of California 10 Mr. Potts is also entitled to absolute immunity Mr. Potts is not, however, entitled to absolute There may be disputed evidence as to Plaintiff’s § 1983 false 11 arrest and imprisonment, malicious prosecution and conspiracy 12 claims against Mr. Potts based on the allegations that he falsified 13 his report and withheld exculpatory evidence. 14 cannot pursue the § 1983 false arrest and imprisonment and 15 malicious prosecution claims because collateral estoppel applies, 16 as discussed below. 17 Potts’ conversations with Mr. Casey, even viewed in the light most 18 unfavorable to Mr. Potts, is insufficient to surmount summary 19 judgment on the § 1983 conspiracy claim against him. 20 Gray, 707 F.2d 435, 438 (9th Cir. 1983). 21 affirmed a grant of summary judgment on the plaintiff’s § 1983 22 conspiracy claim when the plaintiff failed to provide sufficient 23 evidence showing that the defendants had a “meeting of the minds” 24 to violate her civil rights. 25 insufficient to show the requisite agreement. 26 that Defendants Potts and Casey communicated, without more, is 27 insufficient to amount to evidence that they agreed to violate 28 Plaintiff’s rights. However, Plaintiff Further, any disputed evidence regarding Mr. Id. See Fonda v. There, the Ninth Circuit “Mere acquiescence” is Id. The evidence Accordingly, summary judgment is granted on 22 1 Plaintiff’s § 1983 conspiracy claim against Defendant Potts. 2 II. 3 4 5 6 7 8 9 United States District Court For the Northern District of California 10 11 12 13 14 15 16 17 18 19 20 21 Collateral Estoppel Regarding Probable Cause to Arrest and Probable Cause to Prosecute Plaintiff must establish lack of probable cause to arrest to support his § 1983 claims based on false arrest and imprisonment and a lack of probable cause to prosecute to support his § 1983 malicious prosecution claim. See Cabrera v. City of Huntington Park, 159 F.3d 374, 380 (9th Cir. 1998) (false arrest and imprisonment); Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004) (malicious prosecution). County Defendants contend that collateral estoppel bars Plaintiff from relitigating probable cause to arrest because findings of probable cause were made by the state court judge, at the second preliminary hearing to hold Plaintiff for trial4 and in rulings on various motions in the criminal proceedings. Plaintiff responds that, because a magistrate’s finding of probable cause at a preliminary hearing to hold a defendant for trial is not necessarily a finding that there was probable cause to arrest, litigation of probable cause to arrest is not barred. County Defendants contend that collateral estoppel likewise bars Plaintiff from relitigating probable cause to prosecute. 22 4 23 24 25 26 27 28 The probable cause finding to hold Plaintiff at the first preliminary hearing in November, 2002 is not at issue here. In June, 2004, the trial court granted Plaintiff’s non-statutory motion to dismiss the first complaint. County Defs.’ RJN Ex. G; Pl.’s Opp’n Ex. 39. Based on Mr. Potts’ undisclosed bench notes, the undisclosed memorandum from Mr. Potts to Mr. Casey regarding the bench notes and Mr. Potts’ testimony at the preliminary hearing, the court held that there was a reasonable probability that the magistrate would not have found probable cause to hold Plaintiff to answer at the first preliminary hearing had all of these facts been known. County Defs.’ RJN Ex. G at 32; Pl.’s Opp’n Ex. 39 at 32. 23 1 Plaintiff did not respond to this basis for summary judgment in his 2 reply.5 United States District Court For the Northern District of California 3 “Collateral estoppel precludes relitigation of issues argued 4 and decided in prior proceedings.” 5 323 F.3d 1147, 1152 (9th Cir. 2003) (quoting Lucido v. Superior 6 Court, 51 Cal. 3d 335, 341 (1990)). 7 collateral estoppel (or issue preclusion) is applied if (1) the 8 issue sought to be precluded is identical to that decided in a 9 former proceeding; (2) the issue was actually litigated in the 10 former proceeding; (3) the issue was necessarily decided in the 11 former proceeding; (4) the decision in the former proceeding was 12 final and on the merits; and (5) the party to be estopped was a 13 party to the former proceeding or in privity with a party to the 14 former proceeding. 15 Diruzza v. County of Tehama, Under California law, Id. A probable cause determination at a preliminary hearing is 16 considered a final judgment on the merits because the defendant can 17 immediately appeal the determination. See Haupt v. Dillard, 18 19 5 20 21 22 23 24 25 26 27 28 Mr. Potts did not plead collateral estoppel as an affirmative defense in his answer to Plaintiff’s complaint or in his summary judgment motion. Generally, the failure to plead an affirmative defense in the responsive pleading waives the defense. Fed. R. Civ. P. 8(c)(1). However, County Defendants asserted collateral estoppel in their summary judgment motion. (Docket No. 182.) Plaintiff responded to it and did not claim waiver or prejudice. Pl.’s Opp’n 31-33. Although Mr. Potts did not move for summary judgment based on collateral estoppel or join in County Defendants’ motion, a federal court may dismiss claims as to nonmoving defendants where such defendants are in a position similar to that of moving defendants, or where the claims against all defendants are integrally related. See Abagninin v. AMVAC Chem. Corp., 545 F.3d 733, 742-43 (9th Cir. 2008); Silverton v. Department of the Treasury, 644 F.2d 1341, 1345 (9th Cir. 1981). Thus, the Court may grant summary judgment on the § 1983 false arrest and imprisonment and malicious prosecution claims against Defendant Potts. 24 United States District Court For the Northern District of California 1 17 F.3d 285, 288-89 (9th Cir. 1994);6 McCutchen v. City of 2 Montclair, 73 Cal. App. 4th 1138, 1145-46 (1999). 3 an accused can immediately appeal the determination by filing a 4 motion to set aside the preliminary hearing under California Penal 5 Code § 995 and then obtain review of the decision on this motion by 6 filing a writ of prohibition under California Penal Code § 999a. 7 See McCutchen, 73 Cal. App. 4th at 1146. 8 requires that a determination be immediately appealable for the 9 purposes of finality, Plaintiff actually appealed the determination In California, Though Haupt only 10 through a motion to set aside the preliminary hearing under 11 California Penal Code § 995. 12 34; see also McCutchen, 73 Cal. App. 4th at 1146. 13 denied, thereby affirming the probable cause determination. 14 See County Defs.’ RJN Ex. X, Ex. C at This motion was A determination cannot be considered final when “the decision 15 to hold a defendant to answer was made on the basis of fabricated 16 evidence presented at the preliminary hearing or as the result of 17 other wrongful conduct by state or local officials.” 18 F.3d at 1068. 19 to hold Plaintiff to answer at the second preliminary hearing was 20 not based on fabricated evidence or other wrongful conduct. 21 Potts’ allegedly false and misleading testimony was made during the 22 first preliminary hearing and the prosecution did not offer Mr. 23 Potts as a witness in the second preliminary hearing. 24 of the second preliminary hearing, Plaintiff had the opportunity to 25 review the exculpatory evidence that had been withheld at the time Awabdy, 368 Awabdy is not applicable here because the decision Mr. By the time 26 6 27 28 The Haupt court applied Nevada law of collateral estoppel. 17 F.3d at 288. Nevada’s collateral estoppel law is identical to California’s. See McCutchen v. City of Montclair, 73 Cal. App. 4th 1138, 1145 (1999). 25 1 of the first preliminary hearing: Mr. Potts’ bench notes and the 2 memorandum from Mr. Potts to Mr. Casey. 3 determination at Plaintiff’s second preliminary hearing serves as a 4 final judgment on the issue. Haupt, 17 F.3d at 288-89. 5 A. False Arrest and Imprisonment Claims 6 A finding of probable cause to hold at a preliminary hearing 7 may bar relitigation of probable cause to arrest in a subsequent 8 civil action if the evidence at the time the arrest warrant issued 9 is the same as the evidence presented at the preliminary hearing. 10 United States District Court For the Northern District of California Thus, the probable cause 11 See Haupt, 17 F.3d at 288-89. The plaintiff in Haupt argued that a probable cause finding at 12 a preliminary hearing was different from the probable cause to 13 arrest. 14 not identify any evidence presented at the preliminary hearing that 15 was not available to the officers when they obtained the arrest 16 warrant, the finding of probable cause at the preliminary hearing 17 was identical to the issue of probable cause to arrest. 18 finding of probable cause at a preliminary hearing would not be 19 conclusive as to whether there was probable cause to arrest only if 20 additional evidence, discovered after the arrest, had been 21 presented at the preliminary hearing. 22 Id. The court concluded that, because the plaintiff did Id. A Id. Here, as in Haupt, Plaintiff points to no new inculpatory 23 evidence presented at the second preliminary hearing that was not 24 presented by the County Defendants when they obtained his arrest 25 warrant. 26 warrant declaration was not proffered at the second preliminary 27 hearing and all of the exculpatory information was presented. 28 Further, the allegedly false information in the arrest Citing Schmidlin v. City of Palo Alto, 157 Cal. App. 4th 728 26 1 (2007), Plaintiff urges this Court to not rely on Haupt. 2 Schmidlin, the court stated that the “issue of probable cause to 3 arrest (or sufficient cause to detain) is simply not the same as -- 4 let alone identical to -- that of sufficient cause to hold the 5 defendant for trial.” 6 court stated that “an order . . . denying a motion to suppress 7 evidence on the ground that officers detained the defendant 8 unlawfully” provides a probable cause determination identical to a 9 probable cause determination at arrest. United States District Court For the Northern District of California 10 Id. at 767 (citation omitted). Such an order exists here. In However, the Id. at 768. Before his second preliminary 11 hearing, the state court denied Plaintiff’s motion to suppress 12 evidence obtained pursuant to a May 8, 2002 search warrant. 13 County Defs.’ RJN, Ex. W at 4; County Defs.’ RJN Ex. F 1720:3-17. 14 Probable cause for the search warrant was supported by the training 15 and experience of the detective who applied for the warrant, the 16 incorporation by reference of the declaration in support of the 17 arrest warrant leading to Plaintiff’s initial arrest, and the 18 applying detective’s knowledge that Plaintiff lived at two 19 different addresses. 20 argued that the search warrant was defective because the arrest 21 warrant was not supported by sufficient probable cause given the 22 falsities contained in Mr. Davidson’s declaration in support of the 23 arrest warrant. 24 Plaintiff’s suppression motion after all of the challenged facts 25 were litigated provides a determination of probable cause identical 26 to the determination of probable issue for arrest. County Defs.’ RJN Ex. W at 4. Id. at 19. See Plaintiff Under Schmidlin, the denial of 27 28 27 Even under 1 Schmidlin,7 collateral estoppel would apply. 2 3 evidence at the second preliminary hearing amounted to probable 4 cause to hold for trial, even in the light of the exculpatory 5 evidence, amounts to a determination that the same inculpatory 6 evidence was sufficient to support the arrest warrant. 7 F.3d at 289. 8 relitigating the issue of probable cause to arrest, and summary 9 judgment must be granted on Plaintiff’s § 1983 false arrest and 10 United States District Court For the Northern District of California Thus, the determination that the unchallenged inculpatory Haupt, 17 Collateral estoppel therefore bars Plaintiff from imprisonment claims against Mr. Potts. 11 B. Malicious Prosecution Claim 12 Under the analysis discussed above, because the state court 13 proceedings in the second preliminary hearing provided a final 14 determination that there was probable cause to prosecute, 15 collateral estoppel bars Plaintiff from relitigating this issue in 16 connection with his malicious prosecution claim. 17 provided no argument or evidence disputing County Defendants’ 18 argument on this point. 19 to Plaintiff’s § 1983 claim for malicious prosecution against Mr. 20 Potts. 21 III. 22 Plaintiff Summary judgment is therefore granted as Entity Liability for 42 U.S.C. § 1983 Claims In their reply, the County Defendants assert for the first 23 time that under Monell v. Dep’t of Social Services of City of New 24 York, 436 U.S. 658 (1978), Plaintiff has failed to present evidence 25 7 26 27 28 The Court does not decide whether Schmidlin is controlling California law. Schmidlin conflicts with McCutchen, and the California Supreme Court has not spoken on this issue. Because the McCutchen court primarily relies upon Haupt for its analysis, McCutchen offers no support for Plaintiff’s position. See McCutchen, 73 Cal. App. 4th at 1145-47. 28 1 of liability against the entity County Defendants (the County, 2 Sheriff’s Department and District Attorney’s Office) for his § 1983 3 claims. 4 opportunity to submit a supplemental brief responding to the County 5 Defendants’ Monell argument. 6 do so. United States District Court For the Northern District of California 7 At the hearing, the Court provided Plaintiff with the (Docket No. 220.) Plaintiff did not Local governments are “persons” subject to liability under 8 § 1983 only where an official policy or custom causes a 9 constitutional violation. See Monell, 436 U.S. at 690-91. They 10 may not be held vicariously liable for the unconstitutional acts of 11 their employees under the theory of respondeat superior. 12 of County Comm’rs v. Brown, 520 U.S. 397, 403 (1997); Monell, 436 13 U.S. at 691; Fuller v. City of Oakland, 47 F.3d 1522, 1534 (9th 14 Cir. 1995). 15 policy or custom, whether made by its lawmakers or by those whose 16 edicts or acts may fairly be said to represent official policy, 17 inflicts the injury that the government as an entity is responsible 18 under § 1983.” 19 See Board “Instead, it is when execution of a government’s Monell, 436 U.S. at 694. Plaintiff has not identified or presented evidence of an 20 official policy or custom of any entity Defendant that caused the 21 alleged constitutional violations. 22 to Plaintiff’s § 1983 claims against the entity Defendants. 23 IV. 24 Summary judgment is granted as Claims under 42 U.S.C. § 1985 Plaintiff appears to assert a conspiracy claim under both 25 § 1985(3) for deprivation of Plaintiff’s rights and § 1985(2) for 26 obstruction of justice in state court. 27 ¶¶ 176-79. 28 plead a conspiracy claim under § 1985(3) because Plaintiff does not See Third Am. Compl. Mr. Potts contends that Plaintiff has not sufficiently 29 1 allege or provide evidence that the conspiracy was based on his 2 race or gender. 3 in his opposition. 4 To state a claim under § 1985(3), a plaintiff must allege a 5 conspiracy to deprive him or her of a right, motivated by racial or 6 other class-based discrimination, and the plaintiff must be a 7 member of the protected class. 8 F.2d 1214, 1223 (9th Cir. 1990), amended on denial of rh’g and rh’g 9 en banc (9th Cir. 1992); RK Ventures, Inc. v. City of Seattle, 307 10 United States District Court For the Northern District of California Plaintiff did not respond to Mr. Potts’ argument 11 McCalden v. Cal. Library Ass’n, 955 F.3d 1045, 1056 (9th Cir. 2002). “Section 1985(2) contains two clauses that give rise to 12 separate causes of action.” 13 F.2d 898, 908 (9th Cir. 1993). 14 federal courts and the second clause concerns access to state or 15 territorial courts. 16 based on the alleged obstruction of justice in state court. 17 § 1985(3) claim, a claim under § 1985(2) for obstruction of justice 18 in state court requires allegations of class-based discrimination. 19 See id. 20 Portman v. County of Santa Clara, 995 The first clause concerns access to Id. at 909. Plaintiff’s § 1985(2) claim is Like a Plaintiff’s conspiracy claims under § 1985(3) and § 1985(2) 21 fail as a matter of law because he has not alleged or provided 22 evidence of discrimination based on his membership in a protected 23 class. 24 § 1985 claims against all Defendants.8 The Court grants summary judgment against Plaintiff on his 25 26 27 28 8 Though County Defendants did not move for summary judgment on Plaintiff’s § 1985 claim, summary judgment is nonetheless proper. See n.4 above. 30 1 United States District Court For the Northern District of California 2 V. State Law Defamation Claim After Plaintiff was acquitted, a local radio station 3 interviewed Plaintiff’s counsel and his mother. 4 the radio station during this interview and made statements that 5 were broadcast. 6 Plaintiff challenges two statements by Ms. Cook. 7 stated that Plaintiff was not found innocent and that “finding a 8 person not guilty, does not mean they are innocent.” 9 Compl. ¶ 87 (Docket No. 49.) Cook Decl. ¶¶ 4-8. Ms. Cook called In his defamation claim, First, Ms. Cook Third Am. No defamation claim can be based on 10 this statement because it is true. 11 (slander must be false). 12 was, in fact, found not guilty. See Cal. Civil Code § 46 Plaintiff was not “found innocent”-- he 13 Second, Ms. Cook stated that Plaintiff took a valid polygraph 14 examination and “failed it miserably, the worst results that [the] 15 Department of Justice Examiner had ever seen in her career.” 16 Am. Compl. ¶ 87. 17 Plaintiff had failed a valid exam was false because the polygraph 18 exam administered to Plaintiff was invalid and the polygraph 19 examiner and Ms. Cook knew it. 20 submitted evidence that Ms. Cook had knowledge of the alleged 21 invalidity of the exam. 22 hypotheses are not evidence. Third Plaintiff asserts that Ms. Cook’s statement that Plaintiff has not, however, Plaintiff’s conclusory statements and 23 No defamation claim can be based on Ms. Cook’s statement 24 reporting the examiner’s opinion because there is no evidence that 25 Ms. Cook’s statement was false. 26 examiner did make that statement of opinion to the prosecutors, see 27 Gomez Decl. ¶ 4; Cook Decl. ¶ 8; Allen Decl. ¶ 3, and Plaintiff 28 presents no evidence that she did not. The evidence shows that the 31 Ms. Cook was not providing 1 her own opinion, but describing the examiner’s opinion, as stated 2 to her. 3 4 of Defendant Cook.9 5 VI. 6 United States District Court For the Northern District of California Plaintiff’s defamation claim is summarily adjudicated in favor Entity Liability for State Law Claims Plaintiff asserts various state law claims against the entity 7 County Defendants, apparently under a respondeat superior theory. 8 California Government Code § 815.2(b) states, “Except as 9 otherwise provided by statute, a public entity is not liable for an 10 injury resulting from an act or omission of an employee of the 11 public entity where the employee is immune from liability.” 12 a public employer is immune from liability if its employee is 13 immune under § 821.6. 14 Cal. App. 4th 1033, 1050 (2007). 15 Thus, See, e.g., Gillan v. City of San Marino, 147 To the extent that individual County Defendants Casey, Jacobs, 16 Cook, and Passalacqua are granted immunity under California 17 Government Code § 821.6, the entity County Defendants are also 18 immune from liability for claims based on their conduct. 19 Gov. Code § 815.2(b). 20 liable for Defendants Davidson’s and Casey’s conduct on Plaintiff’s 21 state law civil rights, false arrest and imprisonment and emotional 22 distress claims because Plaintiff failed to show evidence of Mr. 23 Davidson’s and Mr. Casey’s liability. 24 judgment is granted as to all state law claims against the entity 25 County Defendants. See Cal. The entity County Defendants cannot be Accordingly, summary 26 27 28 9 Because the defamation claim is summarily adjudicated in favor of Defendant Cook, the Court does not examine County Defendants’ state law immunity arguments with regard to that claim. 32 1 2 To the extent that the Court relied upon evidence to which 3 Defendants object, those objections are overruled. 4 object to several of Plaintiff’s exhibits on the basis of 5 authentication and foundation. 6 Plaintiff’s exhibits are documents that were produced by Defendants 7 to Plaintiff during discovery. 8 Defendants have not suggested any reason to believe that the 9 documents they produced are not authentic. 10 United States District Court For the Northern District of California VII. Evidentiary Objections 11 Defendants The Court notes that almost all of See Lerman Decl. (Docket No. 211.) To the extent the Court did not rely on evidence to which the parties objected, the objections are overruled as moot. 12 CONCLUSION 13 For the foregoing reasons, Mr. Potts’ motion for summary 14 judgment (Docket Nos. 171 & 183) and the County Defendants’ motion 15 for summary judgment (Docket Nos. 160 & 182) are GRANTED. 16 1. Summary judgment is granted as to all claims against 17 Defendants Jacobs and Passalacqua based on absolute 18 immunity under federal law and immunity under California 19 Government Code § 821.6, as well as lack of evidence. 20 2. Summary judgment is granted as to all claims against 21 Defendant Casey based on absolute immunity under federal 22 law, immunity under California Government Code § 821.6 23 and lack of evidence. 24 3. Summary judgment is granted as to all claims against 25 Defendant Cook. 26 are based on Defendant Cook’s conduct related to the 27 second complaint filed against Plaintiff and witness 28 interviews during the criminal proceedings, summary To the extent that Plaintiff’s claims 33 1 judgment is granted as to those claims based on absolute 2 immunity and lack of evidence. 3 summarily adjudicated in favor of Defendant Cook based on 4 a lack of evidence. 5 4. Summary judgment is granted as to the § 1983 and state 6 law claims against Defendant Davidson because there is no 7 evidence to support them. 8 under both California Civil Code § 43.55 and California 9 Penal Code § 847(b)(1) to immunity from liability for 10 United States District Court For the Northern District of California The defamation claim is 11 Mr. Davidson is also entitled Plaintiff’s state law claims. 5. To the extent that Plaintiff’s § 1983 claims against Mr. 12 Potts are based on Mr. Potts’ testimony at the 13 preliminary hearing, summary judgment is granted as to 14 those claims based on absolute immunity. 15 evidence to support Plaintiff’s § 1983 conspiracy claim 16 against Mr. Potts. 17 from relitigating probable cause to arrest and probable 18 cause to prosecute, which prevents him from pursuing his 19 § 1983 claims for false arrest and imprisonment and 20 malicious prosecution. 21 granted as to Plaintiff’s § 1983 claims against Mr. 22 Potts. 23 6. 24 25 There is no Collateral estoppel bars Plaintiff Summary judgment is therefore Summary judgment is granted as to Plaintiff’s § 1983 claims against the entity County Defendants under Monell. 7. Summary judgment is granted as to Plaintiff’s state law 26 claims against the entity County Defendants under 27 California Government Code § 815.2(b) (for claims based 28 on the conduct of Casey, Jacobs, Cook and Passalacqua) 34 1 2 and for lack of evidence. 8. Summary judgment is granted as to Plaintiff’s §§ 1985(2) 3 and 1985(3) conspiracy claims against all Defendants for 4 failure to provide evidence of class-based 5 discrimination. 6 9. Defendants’ objections to Plaintiff’s evidence (Docket 7 No. 207) are overruled. 8 the summary judgment hearing and reopen discovery (Docket 9 No. 211) is denied as moot. Plaintiff’s motion to reschedule United States District Court For the Northern District of California 10 11 IT IS SO ORDERED. 12 13 Dated: September 22, 2009 CLAUDIA WILKEN United States District Judge 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 35
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