Edward A. Russell, Plaintiff-appellant, v. Allister F. Macleod, et al., Defendant-appellee, 39 F.3d 1188 (9th Cir. 1994)

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US Court of Appeals for the Ninth Circuit - 39 F.3d 1188 (9th Cir. 1994)

Submitted Aug. 16, 1994. *Decided Oct. 26, 1994

Before: CHOY, SKOPIL, and FERGUSON, Circuit Judges.


Edward A. Russell appeals pro se the district court's dismissal of his 42 U.S.C. § 1983 civil rights action. We agree with the district court that Russell's claims against a police officer and two prosecuting attorneys are barred by absolute immunity. See Briscoe v. LaHue, 460 U.S. 325, 345 (1983) (testifying police officer is immune); Imbler v. Pachtman, 424 U.S. 409, 430 (1976) (prosecutors are immune for claims involving conduct "intimately associated with the judicial phase of the criminal process").

We also agree that Russell's claim against the police department does not allege the necessary existence of a particular official policy or established custom which deprived him of a constitutional right. See Monell v. New York City Dept. of Social Servs., 436 U.S. 658, 694 (1978). Government policy cannot be inferred from a single incidence of alleged unconstitutional activity where the actor is not a policy maker. See Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985).

The district court properly dismissed Russell's complaint. Remand to allow an amended complaint is not necessary in this instance because it is "absolutely clear that the deficiencies of the complaint could not be cured by amendment." Sands v. Lewis, 886 F.2d 1166, 1168 (9th Cir. 1989).



The panel unanimously finds this case suitable for submission on the record and briefs and without oral argument. Fed. R. App. P. 34(a), Ninth Circuit Rule 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3