Unpublished Disposition, 886 F.2d 1319 (9th Cir. 1985)

MEMORANDUM^** 

The Plaintiff-Appellant, Jay Joseph BloomBecker, appeals the dismissal of his Second Amended Complaint under Fed. R. Civ. P. 12(b) (6) for failure to state a claim. BloomBecker brought this action under 42 U.S.C. Section 1983, alleging that the actions of the District Attorney of the County of Los Angeles and various other employees of the County violated his Constitutional rights. The dismissal of Plaintiff's claims against the individual defendants in the original complaint was not appealed. The sole issue to be decided is whether the Second Amended Complaint states a cause of action against the County of Los Angeles under section 1983.

BloomBecker's Complaint is based on two distinct sets of events. The first, the "employment events," involve actions allegedly taken against him while he was employed as a deputy district attorney, from late 1978 until his resignation in mid-1980. BloomBecker contends that these actions were improperly motivated by a desire to "punish" him for his association with the Synanon Foundation, an organization then being prosecuted by the District Attorney's office, in violation of his Constitutional rights.

In April 1985, the Supreme Court held in Wilson v. Garcia, 471 U.S. 261 (1985), that state statutes of limitations for personal injury actions should apply to section 1983 actions. While BloomBecker's original complaint was filed on December 27, 1985, after Wilson was decided, the employment events, which he alleges violated his civil rights, occurred before Wilson. In such a situation, the limitation period is "either (1) the pre-Wilson period, commencing at the time the cause of action arises, or (2) the post-Wilson period, commencing with the Wilson decision, whichever expires first." Usher v. City of Los Angeles, 828 F.2d 556 (9th Cir. 1987).

In this case, the first of these limitation periods applies. Prior to Wilson, we held that section 1983 claims were governed by California Code of Civil Procedure Sec. 338(1) which set a three year limitation for actions "upon a liability created by a statute." See Smith v. Cremins, 308 F.2d 187 (9th Cir. 1962). By the time BloomBecker filed his complaint in 1985, any claims arising from the period of his employment, which ended in 1980, were clearly barred by the pre-Wilson three year statute of limitations.

The second set of events BloomBecker complains of involves a grand jury proceeding in 1984, part of the District Attorney's continuing investigation of the Synanon Foundation, which resulted in an indictment charging BloomBecker with perjury. BloomBecker alleges that John Watson, a Los Angeles County deputy district attorney caused his arrest and incarceration, misrepresented certain facts affecting the credibility of other witnesses and suppressed exculpatory evidence before the grand jury. He argues that these actions violated his rights of freedom of speech and assembly, and of privacy, guaranteed by the First and Fourteenth Amendments to the United States Constitution, and that they were taken pursuant to the policies, customs and practices of the County of Los Angeles.

The District Court dismissed BloomBecker's claim against the County based on the grand jury events on the grounds that the pleadings did not allege an official policy or practice with sufficient specificity to state a claim against the County. We review the dismissal of a complaint under Fed. R. Civ. P. 12(b) (6) de novo. Karim-Panahi v. Los Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988). Our review of the district court's dismissal is based upon the complaint. All material allegations are taken as true and construed in the light most favorable to the non-moving party. Sanders v. Kennedy, 794 F.2d 478 (9th Cir. 1986). We may affirm the decision of the district court on any basis supported by the record. Smith v. Block, 784 F.2d 993, 996 n. 4 (9th Cir. 1986).

In order to state a claim under section 1983, a plaintiff must plead that (1) the defendants acted under color of state law and (2) that defendants' conduct deprived the plaintiff of a federally protected right. Karim-Panahi, 839 F.2d at 624; Shah v. County of Los Angeles, 797 F.2d 743 (9th Cir. 1986).

In his complaint, BloomBecker alleges that Watson "call [ed] [him] before the grand jury with the intention of causing him to be indicted for perjury; caus [ed] his arrest; suppress [ed] exculpatory evidence ... and question [ed] other witnesses about [his] actions." Even accepting BloomBecker's version of the facts as true, none of the actions he complains of has deprived him of any federally protected rights. All of these actions were taken pursuant to a legitimate investigation and are the type of actions normally undertaken by a prosecutor in the course of his prosecutorial duties. Moreover, we have held that a prosecutor "has no duty to present to the grand jury all matters bearing on the credibility of witnesses or any exculpatory evidence." United States v. Al Mudarris, 695 F.2d 1182, 1185 (9th Cir. 1983). Even assuming Watson's behavior before the grand jury was in any way improper, any prejudice to BloomBecker's constitutional rights was cured when the District Attorney voluntarily dismissed the indictment. Thus, BloomBecker failed to allege facts sufficient to support a finding that he has been deprived of any right protected by the Constitution or a federal statute. Even taking all of the material allegations as true, the complaint fails to state a claim under section 1983.

Finally, BloomBecker contends that the District Court erred in not holding that the employment events and the grand jury proceedings were parts of the same continuing course of conduct. Assuming that the outcome might be different if BloomBecker's contention were accepted, the trial court's decision to treat the two sets of events separately is justified by the absence of any showing that any events of similar import against BloomBecker occurred during the four year gap between his resignation from the District Attorney's office and the grand jury proceedings.

AFFIRMED.