Sussman et al v. San Diego Police Dept. et al, No. 3:2020cv01085 - Document 139 (S.D. Cal. 2022)

Court Description: ORDER Granting Defendant's Motions To Dismiss [Dkts. 73 , 76 , 78 , 80 - 81 , 83 - 86 , 89 - 90 ]. Signed by Judge Jinsook Ohta on 3/29/2022. (All non-registered users served via U.S. Mail Service)(ddf)

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Sussman et al v. San Diego Police Dept. et al Doc. 139 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 12 13 NANCY SUSSMAN, MICHAEL SUSSMAN ESTATE THEREOF BY AND THRU HIS SPECIAL ADMINISTER FOR THE ESTATE, Plaintiff, 14 15 Case No.: 20cv1085-JO-MDD ORDER GRANTING DEFENDANTS' MOTIONS TO DISMISS V. 16 17 SAN DIEGO POLICE DEPARTMENT, et. al., 18 Defendants. 19 20 21 Defendants Judge Kenneth So; Judge Gregory Pollack; District Attorney Summer 22 Stephan; Assistant District Attorney Wendy Patrick; City Attorney Mara Elliot; former 23 Deputy City Attorney Ryan Scott; the San Diego Police Department; individually named 24 San Diego Police Department Officers; the California Department of Motor Vehicles; the 25 Certified Board of Registered Nursing; Alfonso and Esperanza Martinez; Joel and Mary 26 Johnson; California Highway Patrol Officer Erick Parra; Allstate Northbrook Indemnity 27 Company; Prime Healthcare Paradise Valley, LLC dba Paradise Valley Hospital; and 28 Dr. Prakash Bhatia filed motions to dismiss Plaintiffs Second Amended Complaint on 20cvl085-JO-MDD Dockets.Justia.com 1 vanous grounds, including res judicata; judicial, prosecutorial, and state immunity; 2 improper service of process; and failure to state a claim. Dkts. 73, 76, 78, 80-81, 83-86, 3 89-90. For the reasons stated below, the Court grants Defendants' motions to dismiss. I. BACKGROUND 4 5 Plaintiff Nancy Sussman's son, Michael Sussman, was convicted in San Diego 6 Superior Court for a variety of misdemeanors related to a domestic violence incident and 7 was given a one-year sentence. Shortly after being released from jail, Mr. Sussman died 8 of a drug overdose. In the instant action, the second of two lawsuits she has filed in the 9 Southern District of California, Plaintiff brings fourteen claims based in part on a 10 conspiracy between Judges, attorneys, government organizations, and private parties to 11 harm her and her son and violate their civil rights during the prosecution and conviction of 12 Mr. Sussman. See Dkt. 70 (the "SAC"). Plaintiff also brings claims based on a series of 13 apparently unrelated grievances, including allegedly unlawful arrests, confinement to a 14 psychiatric unit, and revocation of her driver's license and nursing license. 15 A. Plaintiff's Prior Federal Court Action 16 On June 6, 2019, Plaintiff sued in the United States District Court for the Southern 17 District of California, alleging a conspiracy to falsely prosecute and convict Mr. Sussman. 18 Nancy Sussman, et al. v. San Diego Police Dept., et al., Case No. 19cvl 063-DMS-JLB (the 19 "Prior Action"). In the Prior Action, the purported conspirators included Judge Kenneth 20 So, the San Diego Police Department (the "SDPD"), the San Diego City Attorney's Office 21 (the "City Attorney's Office"), City Attorney Mara Elliot, former Deputy City Attorney 22 Ryan Scott, Lieutenant Jeff Jordon, and Alfonso Martinez, among other defendants. See 23 Prior Action Dkt. 9. On November 4, 2019, the District Court dismissed Plaintiffs Second 24 Amended Complaint with prejudice. See Prior Action Dkt. 110. On September 15, 2020, 25 the Ninth Circuit affirmed. See Prior Action Dkt. 128. 26 B. The Instant Action 27 28 After the dismissal of her Prior Action, Plaintiff filed the instant action on June 15, 2020. The Defendants described below have moved to dismiss the claims against them. 2 20cvl085-JO-MDD 1 i. Judicial Defendants 2 In the SAC, Plaintiff claims that Defendants Judge Kenneth So and Judge Gregory 3 Pollack (together, the "Judicial Defendants") illegally acted to harm Plaintiff and 4 Mr. Sussman in violation of their civil rights. Plaintiff contends, as she did in the Prior 5 Action, that Judge So unfairly presided over the criminal trial of Mr. Sussman, which 6 resulted in Mr. Sussman's "fake conviction" and death. SAC at 11-13, 17-18. Unrelated 7 to the criminal prosecution of her son, Plaintiff claims Judge Pollack presided over a civil 8 harassment matter during which he wrongfully issued a "forged" restraining order against 9 Plaintiff and in favor of Plaintiffs neighbors. See Alfonso Martinez v. Nancy Sussman, , 10 Superior Court of California, County of San Diego, Case No. 37-2016-00045136-CU- ll HRCTL; SAC at 6, 9, 16-17. Based on the above, Plaintiff alleges the following claims 12 against the Judicial Defendants: (1) violations of unspecified rights under § 1983 (Count 13 I); (2) abuse of process (Count II); (3) RICO (Count V); (4) interference with a federal 14 lawsuit (Count VIII); and ( 5) interference with prospective economic advantages (Count 15 XIV). 1 16 ii. The Prosecutorial Defendants 17 Plaintiff also names District Attorney Summer Stephan ("DA Stephan"), Assistant 18 District Attorney Wendy Patrick ("ADA Patrick"), City Attorney Mara Elliot, and former 19 Deputy City Attorney Ryan Scott (together, the "Prosecutorial Defendants"). Plaintiffs 20 allegations against the Prosecutorial Defendants appear to center around the prosecution of 21 Mr. Sussman. Plaintiff alleges that DA Stephan subjected her and her son to unidentified 22 "fake trials" and concealed the SDPD's and DA's conspiracy of regularly conducting fake 23 24 25 26 27 28 Because Plaintiff has not assigned a unique number to each Count in her SAC, for the purpose of this opinion, the Counts are referred to sequentially in the order they appear. Additionally, Plaintiff names certain Defendants in the Count headings but alleges no facts with respect to them. For the purposes of its analysis, the Court has only considered Defendants against whom some facts are alleged within each Count as Defendants to that Count. 1 3 20cv 1085-JO-MDD 1 trials. SAC at 4. Plaintiff does not further clarify the contours of this alleged conspiracy. 2 Plaintiff also claims that DA Stephan refused to investigate her son's death in 2018. Id. at 3 23. According to Plaintiff, ADA Patrick participated in these events, although her role is 4 not specified. Id. 4, 12-13, 23. As to City Attorney Elliot and former Deputy City Attorney 5 Scott, Plaintiff claims that they improperly prosecuted Mr. Sussman by "condoning perjury 6 and false evidence" but does not allege further facts in support. Id. at 12. 7 Plaintiff also identifies a handful of separate events on which she bases her claims 8 against the Prosecutorial Defendants, each of which appear to have occurred a year or more 9 after the prosecution of Mr. Sussman. Plaintiff alleges DA Stephan arrested Plaintiff in 10 2019, on the false charge of criminally threatening Defendant Alfonso Martinez to 11 improperly influence the outcome of the Prior Action. Id. at 14-15. Plaintiff further 12 appears to claim that ADA Patrick participated in this wrong by falsely representing to the 13 state court in the same criminal action that Plaintiff had threatened Alfonso Martinez. Id. 14 at 15-16. Other than claiming that she was in fact innocent of having threatened Defendant 15 Martinez, Plaintiff does not plead further detail. In connection with the same matter, ADA 16 Patrick also allegedly "got on Television to discredit Sussman publically as a witness when 17 she was also the prosecutor." Id. at 15. Plaintiff does not identify the statements that ADA 18 Patrick made to the press. ' 19 Plaintiff further claims that Defendant City Attorney Elliot committed abuse of 20 process by "filing a felony restraining order against Sussman using false document 21 provided to her by the District Attorney." Id. at 15. Plaintiff does not state any further 22 context or facts in support of this allegation. Plaintiff also alleges that former Deputy City 23 Attorney Scott granted immunity to her neighbor, Defendant Alfonso Martinez "for his 24 perjured statements and a false letter and false pictures." Id. at 7. Plaintiff does not provide 25 any additional detail, although this allegation appears to be unrelated to Mr. Sussman's 26 prosecution. Former Deputy City Attorney Scott also allegedly sent defamatory letters to 27 the Certified Board of Registered Nursing, along with Defendants Alfonso and Esperanza 28 4 20cv1085-JO-MDD 1 Martinez and Joel and Mary Johnson, reporting "Sussman as 'crazy' mentally Ill' under 2 arrest, in jail etc. Criminal etc, in essence defaming Sussman." Id. at 31. 3 Based on the foregoing, Plaintiff alleges violations of unspecified rights under 4 § 1983 and RICO against the Prosecutorial Defendants (Counts I and V); conspiracy to 5 obstruct justice and interference with a federal lawsuit against DA Stephan and ADA 6 Patrick (Count VII-VIII); abuse of process against DA Stephan, ADA Patrick, and City 7 Attorney Elliot (Count II); and defamation and interference with prospective economic 8 advantage against former Deputy City Attorney Scott (Counts XIII-XIV). 9 iii. The State Agency Defendants 10 Plaintiff brings claims against two state agencies, the California Department of 11 Motor Vehicles (the "DMV") and the California Board of Registered Nursing (the 12 "CBRN") based on discrete events unrelated to the prosecution of Mr. Sussman. With 13 respect to the DMV, Plaintiff appears to allege that it wrongfully suspended her license on 14 an unidentified date and again in 2020. SAC at 9, 28-29. After the first suspension, 15 Plaintiff"demanded of the DMV the suspension be removed it was not." Id. at 28. Then, 16 in 2020, she contends that the DMV knowingly suspended her license based on false police 17 reports, despite her "excellent driving skills." Id. at 9, 28-29. Based on the above, Plaintiff 18 brings a claim fashioned as "discrimination ... excessive fines and wrongful suspensions 19 of Sussman license to drive" (Count XI). 2 20 Unrelatedly, Plaintiff claims that the CBRN violated its fiduciary duty to her and 21 deprived her of due process when it revoked her nursing license in 2019. Id. at 30-33. 22 According to Plaintiff, the CBRN wrongfully inactivated her nursing license even though 23 24 25 26 27 28 The Court liberally construes this prose claim as arising under § 1983, because Plaintiff appears to allege that her license was suspended wrongfully and without due process oflaw. In addition, although the DMV is named in Plaintiffs RICO claim alleging a conspiracy related to the prosecution of Mr. Sussman, Plaintiff does not specifically allege what role the DMV played in any conspiracy. 2 5 20cvl085-JO-MDD 1 Plaintiff had satisfied the applicable licensing requirements, and the CBRN failed to inform 2 her of same. Id. The CBRN also allegedly wrongfully relied on defamatory complaints 3 about Plaintiff in revoking Plaintiffs license. Id. Plaintiff further claims that the CBRN 4 failed to disclose the complaints to Plaintiff or give her a chance to rebut them, and that 5 her nursing license was ultimately revoked "behind [her] back" and without giving Plaintiff 6 an opportunity to contest. Id. at 31-32. Based on the foregoing, Plaintiff brings an 7 unspecified claim against the CBRN, which the Court liberally construes as a claim brought 8 under§ 1983 (Count XIII). 3 9 iv. The SDPD Defendants 10 Plaintiff brings claims against the SDPD and certain individually named SDPD 11 Officers (the "SDPD Defendants") as members of an alleged conspiracy to prosecute 12 Mr. Sussman. Plaintiff states that Mr. Sussman's prosecution was "was being done for the 13 police dept." SAC at 12. Plaintiff does not further elaborate on the SDPD Defendants' 14 role in any conspiracy. 15 Plaintiff also brings claims against the SDPD Defendants based on three arrests 16 unrelated to Mr. Sussman's prosecution. Id. at 14-15, 18-19. During Plaintiffs first arrest 17 on August 17, 2019, the SDPD and individually named Officer Tharp allegedly "performed 18 an illegal search of Sussman glove compartment and during that search placed a knife in 19 the glove compartment." Id. at 19. During Plaintiffs second arrest on October 28, 2019, 20 the SDPD allegedly used "brutal force" and "used unlawful search and seizure to obtain 21 warrant on Sussman." Id. at 14. With respect to Plaintiffs third arrest on December 30, 22 2019, Plaintiff claims that the SDPD "took Sussman on a wild and reckless police chase in 23 her vehicle based upon a false warrant." Id. at 18. During this arrest, Plaintiff states that 24 individually named SDPD Officers Highhorse and Mondello jumped on her and "put 25 26 27 28 Plaintiff appears to claim that her nursing license was revoked wrongfully and without due process of law. Like the DMV, although the CBRN is named in Plaintiffs RICO claim, Plaintiff does not specify the CBRN's alleged role in any conspiracy. 3 6 20cvl085-JO-MDD 1 Sussman handcuffs on so tight Sussman suffered heart pains," respectively. Id. at 18-19. 2 Based on the above, Plaintiff brings the following claims against the SDPD 3 Defendants: (1) violations of unspecified rights under § 1983 (Count I); (2) abuse of 4 process (Count II); (3) unlawful search and seizure, excessive force, and unlawful arrest 5 under§ 1983 (Counts III-IV); and (4) RICO (Count V). 6 v. The Neighbor Defendants 7 Plaintiff names four of her neighbors as Defendants: Alfonso and Esperanza 8 Martinez and Joel and Mary Johnson. As in the Prior Action, Plaintiff names Defendant 9 Alfonso Martinez as a member of a conspiracy to wrongfully prosecute and convict 10 Mr. Sussman. SAC at 18. Unrelated to those claims concerning her son, Plaintiff also 11 alleges that Defendant Alfonso Martinez submitted a false police report in 2019 that 12 Plaintiff threatened him. Id. at 7-8, 14-16. In yet another incident, unspecified persons 13 purportedly "hired" Defendant Alfonso Martinez "to spy on the Sussman with 24/7 14 cameras from his roof and report all activities to them for entrapment purposes . . . and 15 instructed him to video tape the Sussman's and easedrop on them 24/7 and report activities 16 to the SDPD so he could testify against the Sussman's with immunity." Id. at 6. As to 17 Defendant Esperanza Martinez, the spouse of Defendant Alfonso Martinez, Plaintiff states 18 that she "fabricated evidence in a police report and submitted false testimony at a court 19 hearing." Id. at 8. Plaintiff does not specify, however, what evidence was fabricated, what 20 testimony was false, nor the court hearing at which testimony took place. 21 Plaintiff also alleges that the Martinez couple and two other neighbors, Joel and 22 Mary Johnson, sent defamatory complaints to the CBRN that "Sussman as 'crazy' mentally 23 Ill' under arrest, in jail etc. Criminal etc, in essence defaming Sussman," which caused 24 Plaintiff to lose her nursing license. Id. at 30-36. 25 Based on the above, Plaintiff brings the following claims against Defendants 26 Alfonso and Esperanza Martinez and Joel and Mary Johnson: RICO (Count V); an 27 unspecified claim that the Court construes as defamation (Count XIII); and interference 28 7 20cvl085-JO-MDD 1 with prospective economic advantages (Count XIV). Plaintiff also brings an abuse of 2 3 process claim against Defendant Alfonso Martinez (Count II). vi. Defendant CHP Officer Parra 4 Plaintiff alleges that Defendant California Highway Patrol ("CHP") Officer Erick 5 Parra falsely arrested Plaintiff in January 2020, failed to mirandize her, and wrongfully 6 reported her to the DMV. SAC at 28-30. Although Plaintiff appears to claim that CHP 7 Officer Parra's report resulted in the DMV's suspension of her license in 2020, Plaintiffs 8 claim against CHP Officer Parra is otherwise unrelated to her remaining claims. Based on 9 these contentions, Plaintiff brings an unspecified claim for false arrest against CHP Officer 10 Parra (Count XII). 4 Plaintiff also names CHP Officer Parra in her RJCO claim, although 11 she alleges no further facts with respect to him and does not identify his role in any 12 conspiracy. 13 vii. Defendant Allstate 14 Plaintiff brings a claim against Defendant Allstate Northbrook Indemnity Company 15 ("Allstate") based on an insurance dispute that is unrelated to the rest of her claims. 16 Plaintiff states that she was in a car accident on August 17, 2019, that resulted from the 17 other driver's negligence. SAC at 25. Plaintiff alleges that Allstate promised to do an 18 independent investigation into the accident but ultimately failed to do so. Id. at 25-27. 19 Plaintiff concludes that Allstate violated the implied covenant of good faith and fair dealing 20 by failing to perform an adequate investigation, settling with the other driver, filing a SR 21 22 form indicating Plaintiff was at fault, and lying to Plaintiff regarding the fact of the SR 22 22 form and the settlement. Id. Based on this, Plaintiff brings a claim for violation of the 23 24 25 26 27 28 The Court construes Plaintiffs claim against Officer Parra as arising under state law because Plaintiff explicitly pleads counts under federal law on each of her allegedly unlawful arrests but does not cite to federal law in the claim against Officer Parra. See SAC at 28-30. 4 8 20cv1085-JO-MDD 1 implied covenant of good faith and fair dealing (Count X). Plaintiff also names Allstate in 2 her RICO claim but does not allege Allstate's involvement in any conspiracy. 3 viii. Defendants Paradise and Dr. Bhatia 4 Plaintiff brings claims against Prime Healthcare Paradise Valley, LLC dba Paradise 5 Valley Hospital ("Paradise") and Dr. Prakash Bhatia based on her involuntary psychiatric 6 confinement, unrelated to the rest of her claims. SAC at 24-25. Plaintiff does not specify 7 the dates or circumstances of her confinement but appears to suggest that she was 8 wrongfully confined to the psychiatric unit without her consent. Plaintiff claims that 9 Paradise and Dr. Bhatia accepted transfer of Plaintiff to Paradise's psychiatric unit without 10 Plaintiffs consent and that Defendant Dr. Bhatia knew that Plaintiff did not have a mental 11 health condition but refused to release her. Id. at 24. Plaintiff purportedly was only 12 allowed to leave the psychiatric hospital after Dr. Bhatia fraudulently "orchestrated a 13 pretend hearing." Id. at 24-25. Based on this, Plaintiff brings state law claims of false 14 imprisonment, fraud, and deceit against Paradise and Dr. Bhatia (Count IX). II. STANDARD OF REVIEW 15 16 A Rule l 2(b )(6) motion to dismiss tests the sufficiency of the complaint. See 17 Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Rule 12 (b)(6) is read in conjunction with 18 Rule 8(a), which requires only "a short and plain statement of the claim showing that the 19 pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). While Rule 8 does not require detailed 20 factual allegations, at a minimum, a complaint must allege enough facts to provide "fair 21 notice" of both the particular claims being asserted and "the grounds upon which [those 22 claims] rest[]." Bell Atlantic Corp. v. Twombly, 550 U.S. 544,555 & n.3 (2007) (citations 23 omitted). 24 In deciding a motion to dismiss, all material factual allegations of the complaint are 25 accepted as true, as well as all reasonable inferences to be drawn from them. Cahill v. 26 Liberty Mut. Ins. Co., 80 F.3d 336, 338 (9th Cir. 1996). A court, however, need not accept 27 all conclusory allegations as true. Rather it must "examine whether conclusory allegations 28 follow from the description of facts as alleged by the plaintiff." Holden v. Hagopian, 978 9 20cv I 085-JO-MDD 1 F.2d 115, 1121 (9th Cir. 1992). A motion to dismiss should be granted if a plaintiff's 2 complaint fails to contain "enough facts to state a claim to relief that is plausible on its 3 face." Twombly, 550 U.S. at 570. "A claim has facial plausibility when the plaintiff pleads 4 factual content that allows the court to draw the reasonable inference that the defendant is 5 liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 6 556). 7 Pro se complaints are "held to less stringent standards than formal pleadings drafted 8 by lawyers." Hebbe v. Pliler, 627 F.3d 338,342 (9th Cir. 2010) (citation omitted). A pro 9 se plaintiff's complaint must be construed liberally to determine whether a claim has been 10 stated. See Zichko v. Idaho, 247 F.3d 1015, 1020 (9th Cir. 2001). However, a prose 11 litigant's pleadings still must meet some minimum threshold in providing the defendants 12 with notice of what it is that they allegedly did wrong. See Brazil v. US. Dep 't of Navy, 13 66 F.3d 193, 199 (9th Cir. 1995). 14 15 III. DISCUSSION A. Judges, Prosecutors, and State Agencies are Immune from Suit 16 The Judicial Defendants, the Prosecutorial Defendants, the DMV, and the CBRN 17 each seek to dismiss Plaintiff's claims against them on grounds of judicial immunity, 18 prosecutorial immunity, and state immunity, respectively. For the reasons set forth below, 19 the Court finds that the Judicial Defendants, the Prosecutorial Defendants, the DMV and 20 the CBRN are immune from suit, and the claims against them are dismissed. 21 i. Judicial Defendants 22 Plaintiff's claims for violations of unspecified rights under§ 1983, abuse of process, 23 RICO, interference with a federal lawsuit, and interference with prospective economic 24 advantages against Judge So and Judge Pollack are barred by judicial and Eleventh 25 Amendment immunity. Judges are "immune from damage actions for judicial acts taken 26 within the jurisdiction of their courts." Ashelman v. Pope, 793 F.2d 1072, 1075 (9th Cir. 27 1986). 28 however injurious in its consequences it may have proved to plaintiff." Id. (quoting Judicial immunity "applies 'however erroneous the act may have been, and 10 20cvl085-JO-MDD 1 Cleavinger v. Saxner, 474 U.S. 193, 199 (1985)); Butler v. Gammick, 173 F.3d 859 (9th 2 Cir. 1999) (notingjudicial immunity bars claims that judge conspired with others to render 3 an adverse ruling). "The factors relevant in determining whether an act is judicial relate to 4 the nature of the act itself, i.e., whether it is a function normally performed by a judge, and 5 to the expectations of the parties, i.e., whether they dealt with the judge in his judicial 6 capacity." Ashelman, 793 F.2d at 1075-76 (citation and internal quotation marks omitted). 7 State judges are further insulated from suit by the Eleventh Amendment. Lund v. Cowan, 8 5 F.4th 964,969 (9th Cir. 2021), cert. denied, 142 S. Ct. 900 (2022). 9 Accordingly, the Court examines whether the Judicial Defendants performed the 10 acts stated in the SAC in their judicial capacity to determine whether Plaintiffs claims are 11 barred by judicial and Eleventh Amendment immunity. Here, the SAC alleges acts that 12 are judicial in nature because each-presiding over Mr. Sussman's trial, issuing a 13 restraining order, and issuing court documents-are functions typically performed by a 14 judge and, according to Plaintiff, were done in connection with criminal and civil 15 proceedings over which the Judicial Defendants had jurisdiction. SAC at 6, 9, 11-13, 16--- 16 18. Plaintiff, who used to be an attorney, also appears to contend that Judge Pollack 17 retaliated against her when he reported her conduct to the State Bar of California. This act 18 is also judicial in nature because reporting unethical attorney conduct is well within the 19 typical acts of a judge. Id. at 23; California Code of Judicial Ethics, Canon 3(D)(2). 20 Because all the Judicial Defendants' acts are judicial in nature, Plaintiffs claims against 21 the Judicial Defendants are barred by both judicial immunity and Eleventh Amendment 22 immunity. 5 23 II 24 II 25 26 27 28 The Court rejects Plaintiffs conclusory statement in the SAC that Judge Pollack is sued in his individual capacity because the Court finds that the alleged conduct falls squarely within Judge Pollack's judicial role. See SAC at 6. 5 11 20cv 1085-JO-MDD l ii. Prosecutorial Defendants 2 Plaintiffs claims against Defendants DA Stephan, ADA Patrick, City Attorney 3 Elliot, and former Deputy City Attorney Scott are barred by the doctrine of prosecutorial 4 immunity. Prosecutorial immunity shields prosecutors from civil damages suits premised 5 upon acts committed within the scope of their official duties which are "intimately 6 associated with the judicial phase of the criminal process." Imbler v. Pachtman, 424 U.S. 7 409, 430 (1976); see also Buckley v. Fitzsimmons, 509 U.S. 259, 272-73 (1993); Burns v. 8 Reed, 500 U.S. 478, 487-93 (1991). A prosecutor is immune even when the prosecutor's 9 malicious or dishonest action deprived defendant of his or her liberty. Ashe/man, 793 F.2d 10 at 1075. Prosecutorial immunity applies wherever a prosecutor "acts as an advocate in 11 initiating a prosecution and in presenting the state's case." Id. at 1076 (citation and 12 quotations omitted). 13 Nearly all of Plaintiffs allegations concerning the Prosecutorial Defendants involve 14 prosecutorial acts closely tied to the initiation and presentation of state prosecutions. With 15 respect to DA Stephan, Plaintiff claims she failed to investigate Mr. Sussman's death, 16 initiated criminal proceedings for an improper purpose, conducted "fake" trials, and 17 participated in the District Attorney's illegal policies. SAC at 4, 12-15, 23. ADA Patrick 18 likewise allegedly initiated criminal proceedings for an improper purpose, and 19 misrepresented facts to the court. Id. at 12-16. As to City Attorney Elliot, she allegedly 20 filed a felony restraining order against Plaintiff. Id. at 15. Finally, with respect to former 21 Deputy City Attorney Scott, Plaintiff primarily contends that he granted a witness 22 immunity, and that the witness ultimately committed perjury. Id. at 7. 23 involves Defendants DA Stephan, ADA Patrick, Elliot, and Scott initiating prosecutions 24 and presenting the state's case in court. Therefore, these acts cannot form a basis for 25 liability. Each of these acts 26 Plaintiffs only allegations against the Prosecutorial Defendants not covered by 27 prosecutorial immunity is that ADA Patrick made statements to the press. In Buckley v. 28 Fitzsimmons, the Supreme Court held that a prosecutor's statements to the press are not 12 20cv 1085-JO-MDD 1 protected by prosecutorial immunity because prosecutors do not make press statements as 2 advocates for the state. 509 U.S. at 277-78. Here, while it is unclear whether Plaintiff is 3 seeking relief under§ 1983 or state tort law, under either, Plaintiff does not plead sufficient 4 facts with the requisite plausibility to survive a motion to dismiss. To the extent Plaintiffs 5 allegations are brought under§ 1983, no constitutional violation has been alleged. West v. 6 Atkins, 487 U.S. 42, 48 (1988) ("To state a claim under§ 1983, a plaintiff must allege the 7 violation of a right secured by the Constitution"). 6 To the extent Plaintiffs claim arises 8 under state tort law, Plaintiff has not pleaded compliance with the California Tort Claims 9 Act. Cal. Gov. Code §§ 911.2, 945.4; Mangold v. California Pub. Utilities Comm 'n, 67 10 F .3d 1470, 14 77 (9th Cir. 1995) (noting that the CTCA requires "timely presentation of a 11 written claim and [] rejection" and a "plaintiff must allege compliance or circumstances 12 excusing compliance"). Plaintiff further fails to identify what ADA Patrick said to the 13 press or how her statements harmed Plaintiff. Accordingly, Plaintiffs claim against ADA 14 Patrick based on her statements to the press is dismissed. 15 16 iii. State Agency Defendants Because the CBRN and the DMV are California state agencies, Plaintiffs § 1983 17 claims in Counts XI and XIII are barred by the Eleventh Amendment. 18 California, 191 F.3d 1020, 1025-26 (9th Cir. 1999); Sabatini v. California Bd. of 19 Registered Nursing, 2019 WL 1082445, at *2 (S.D. Cal. Mar. 7, 2019); Cal. Bus. & Prof. 20 Code § 2701; Cal. Vehicle Code § 1500. The Eleventh Amendment prohibits suits by 21 private parties against a state or state agency unless one of three exceptions applies: ( 1) the 22 state has expressly waived its right not to be sued, (2) Congress has specifically passed a 23 law allowing suit, or (3) a party seeks prospective injunctive relief for an ongoing violation 24 of federal law under the Ex Parte Young doctrine. In re Lazar, 237 F.3d 967,976 (9th Cir. Dittman v. 25 26 27 28 Plaintiff suggests that ADA Patrick's actions deprived Plaintiff of her right to appeal the Prior Action, but Plaintiff successfully filed an appeal. See Prior Action Dkt. 128. 6 13 20cv1085-JO-MDD 1 2001) (recognizing consent and abrogation as exceptions to Eleventh Amendment 2 immunity); Yakama Indian Nation v. State of Wash. Dep 't ofRevenue, 176 F.3d 1241, 1245 3 (9th Cir. 1999) (state's consent must be unequivocal and express); Doe v. Regents of the 4 Univ. of California, 891 F.3d 1147, 1153 (9th Cir. 2018) (holding the Ex Parte Young 5 doctrine allows for prospective injunctive relief against state officials named in their 6 official capacity). As to the third exception, the Ex Parte Young doctrine only applies when 7 a private party seeks injunctive relief against a state official in her official capacity for an 8 ongoing violation of federal law. Doe v. Lawrence Livermore Nat. Lab 'y, 131 F.3d 836, 9 839 (9th Cir. 1997). Claims brought under state law, for non-injunctive relief, or for 10 retrospective relief are not permitted. See id. 11 None of the exceptions to Eleventh Amendment immunity saves Plaintiffs claims 12 against the CBRN and the DMV; the claims therefore must be dismissed. Here, Plaintiff 13 does not allege either the CBRN or the DMV has consented to suit. In fact, both agencies 14 have specifically denied consenting to suit in moving to dismiss the SAC. Dkt. 73 at 9-10 15 (denying consent); Dkt. 76 at 9 (same). Moreover, Congress has not specifically allowed 16 suits against states or their agencies under§ 1983. Dittman, 91 F.3d at 1025-26. Finally, 17 the Ex Parte Young doctrine does not apply because Plaintiffs claim against the CBRN, 18 requesting her reinstatement, is alleged against the agency, not individuals in their official 19 capacity. Moreover, her claim against the DMV does not seek prospective injunctive relief. 20 Accordingly, Plaintiffs Counts XI and XIII against the CBRN and the DMV are dismissed. 21 B. Plaintiff's Claims Arising Out of the Trial, Conviction, and Death of Michael 22 Sussman are Barred by Res Judicata 23 Plaintiffs Counts I and V appear to allege that Defendants conspired to and did in 24 fact harm Plaintiff and Mr. Sussman by prosecuting and convicting Mr. Sussman, and 25 ultimately causing his death. Because these allegations were litigated in the Prior Action, 26 Counts I and V are barred by res judicata. 27 Res judicata, also known as claim preclusion, precludes parties from relitigating 28 issues that were or could have been raised in a prior action, and can serve as the basis for 14 20cvl085-JO-MDD 1 granting a motion to dismiss. See Federated Dep 't Stores, Inc. v. Moitie, 452 U.S. 394, 2 398 (1981); see also Stewart v. US. Bancorp, 297 F.3d 953, 956 (9th Cir. 2002). Res 3 judicata is applicable whenever there is (1) an identity of claims, (2) a final judgment on 4 the merits, and (3) identity of the parties. Tahoe-Sierra Pres. Council, Inc. v. Tahoe Reg '! 5 Planning Agency, 322 F.3d 1064, 1077 (9th Cir. 2003). 6 i. There is an Identity of Claims 7 In determining whether res judicata bars Plaintiffs current claims regarding her 8 son's trial and death, the Court first examines whether they are essentially the same as those 9 in the Prior Action. Identity of claims exists "when two suits arise from ' the same 10 transactional nucleus of facts."' Tahoe-Sierra, 322 F .3d at 1078 (citation omitted). Even 11 "[n]ewly articulated claims based on the same nucleus of facts may still be subject to a res 12 judicata finding if the claims could have been brought in the earlier action." Id. Although 13 the specifics of Plaintiffs allegations in both actions are difficult to discern, it is clear that 14 Plaintiffs Prior Action arose out of the trial, conviction, and death of Mr. Sussman. Prior 15 Action Dkt. 110 at 2. 16 Mr. Sussman, and ultimately cause his death. See id. Here, Plaintiffs claims likewise 17 appear to arise out of the same transactional nucleus of facts, i.e., the trial, conviction, and 18 death of Mr. Sussman. For instance, in both actions, Plaintiff challenged Judge So's and 19 Defendant Scott's conduct at Mr. Sussman' s trial and alleged that Defendant Elliot and the 20 SDPD helped ensure that Mr. Sussman was convicted. As such, the Court finds an identity 21 of claims between the two actions, and the first element is met. 22 ii. There is a Final Judgment on the Merits There, Plaintiff alleged a conspiracy to wrongfully convict 23 The second element of res judicata is met because Plaintiffs Prior Action was 24 resolved on the merits. A dismissal with prejudice constitutes a "final judgment on the 25 merits" for res judicata purposes. Leon v. IDX Systems Corp., 464 F .3d 951, 962 (9th Cir. 26 2006); see also Beard v. Sheet Metal Workers Union, Local 150, 908 F.2d 474, 477 n.3 27 (9th Cir. 1990) ("Federal law dictates that a dismissal with prejudice bars a later suit under 28 res judicata."). Plaintiffs Prior Action seeking redress for the death of her son was 15 1 dismissed with prejudice and affirmed on appeal, satisfying the second element. See Prior 2 Action Dkts. 110, 128. 3 iii. The Relevant Parties Are Identical 4 Finally, the third element ofresjudicata is met with regard to Defendants the SDPD, 5 City Attorney Elliot, former Deputy City Attorney Scott, Alfonso Martinez, and Judge So, 6 because they were also defendants to the conspiracy claims surrounding Plaintiffs son in 7 the Prior Action. In both actions, Nancy Sussman is the Plaintiff and the SDPD, the San 8 Diego City Attorney's Office, Mara Elliot, Ryan Scott, Alfonso Martinez, and Judge So 9 are Defendants. Thus, the third element of res judicata is clearly met as to Counts I and V 10 against these Defendants. (In the instant action, Plaintiff names additional Defendants to 11 these conspiracy counts. This order dismisses those Defendants on other grounds set forth 12 in sections II.A and II.C-D.) 13 Because all the elements for res judicata are met, Plaintiffs Count I and Count V 14 are dismissed as to the aforementioned Defendants. 15 C. Plaintiff's RICO Claim Does Not State a Claim for Relief 16 Plaintiffs Count Vis a RICO claim against all Defendants for causing the death of 17 Mr. Sussman. In addition to being barred by res judicata as discussed above, Plaintiffs 18 RICO claim fails under Rules 8 and 12(b)(6). To state a claim for a RICO violation, a 19 plaintiff must allege: "(l) conduct (2) of an enterprise (3) through a pattern (4) of 20 racketeering activity." Sedima, S.P.R.L. v. Imrex Co., Inc., 473 U.S. 479, 496 (1985). An 21 "enterprise" includes "any individual, partnership, corporation, association, or other legal 22 entity, and any union or group of individuals associated in fact although not a legal entity." 23 18 U.S.C. § 1961(4). "Racketeering activity" is any act indictable under the several 24 provisions of Title 18 of the United States Code. Id. § 1961(1). A "pattern of racketeering 25 activity" requires at least two predicate acts. Clark v. Time Warner Cable, 523 F.3d 1110, 26 1116 (9th Cir. 2008). To establish a RICO injury, the plaintiff must show "harm to a 27 specific business or property interest and if the alleged business or property interest is 28 16 20cv 1085-JO-MDD 1 cognizable under state law." Newcal Indus. , Inc. v. Ikon Office Solution, 513 F.3d 1038, 2 1055 (9th Cir. 2008) (citation omitted). 3 Plaintiffs civil RICO claim against all Defendants does not appear to plead any of 4 the required elements. Plaintiff claims that Defendants committed multiple illegal acts 5 over the past ten years, ranging from "Satanic Jury trials" to "causing the death of Michael 6 Sussman." The following is the entirety of Plaintiffs RICO allegations: 7 8 9 10 11 12 13 14 15 16 17 18 All the defendants named herein engaged in multiple acts of corruption, Obstruction of Justice, murders, mail fraud, obstruction of justice, violation of 18 USC Sec 4. Aggressive, Public Corruption, and repeated brutality by the Police Dept. Fake and Satanic Jury trials, Conspiracy to take property rights away from Nancy Sussman and causing the death of Michael Sussman ... Defendants have engaged in said criminal conduct for at least the last ten years Nancy Sussman asked for prosecution for murder of Michael ... All defendants named took part in deprivation of constitutional rights and fraud and all are responsible for Rico violations named and for the covert murder of Michael Sussman age 24 and conspiracy to obstruction of justice, theft as described herein, false imprisonment, tampering with evidence, mail fraud. Public corruption which resulted in death. The actions of the named defendants are equivalent to the actions of the Mafia ... Tampering with evidence also. Plaintiff seeks damages according to proof, per civil Rico statute and hopefully a criminal indictment as well ... Defendants So and Pollack retalaiated againsta witness to deny their civil rights. SAC at 20. 19 As seen above, Plaintiff does not properly allege the existence of an enterprise or 20 predicate acts and does not identify cognizable relief. For one, Plaintiff does not plead the 21 existence of an enterprise, the nature of the alleged enterprise, or Defendants' purported 22 roles in the enterprise. Eclectic Properties E., LLC v. Marcus & Millichap Co., 751 F.3d 23 990, 997 (9th Cir. 2014) ("To show the existence of an enterprise under the second element, 24 plaintiffs must plead that the enterprise has (A) a common purpose, (B) a structure or 25 organization, and (C) longevity necessary to accomplish the purpose."). 26 Nor does Plaintiff identify any predicate acts, let alone a pattern of racketeering 27 activity. Yagman v. Garcetti, 852 F.3d 859, 867 (9th Cir. 2017) (holding that unspecified 28 civil rights violations and conclusory references to mail fraud do not constitute predicate 17 20cvl085-JO-MDD 1 acts). Finally, as was the case in the Prior Action, deprivation of constitutional rights and 2 false imprisonment are not cognizable injuries under RICO. Diaz v. Gates, 420 F.3d 897, 3 899-900 (9th Cir. 2005) (holding that plaintiff cannot recover under RICO based upon 4 allegations of false imprisonment); Lauter v. Anoufrieva, 642 F. Supp. 1060, 1085-86 5 (C.D. Cal. 2009) (holding that deprivation of constitutional rights is not compensable under 6 RICO). For these reasons, Plaintiffs RICO claim is dismissed. 7 D. Plaintiff's Remaining Federal Claims Based On Her Arrests Are Dismissed 8 The SDPD Defendants seek dismissal of Plaintiffs claims for violations of civil 9 rights under§ 1983, abuse of process, and RICO under Counts I-Von the grounds that the 10 SDPD is not a proper Defendant, and the individually named SDPD Officers have not been 11 properly served. 12 Defendants are dismissed. For the reasons stated below, Plaintiffs claims against the SDPD 13 First, Plaintiff may not sue the SDPD under § 1983 absent allegations of a policy or 14 custom because the SDPD is a municipality, not a "person" as required by the statute. 42 15 U.S.C. § 1983; United States v. Kama, 394 F.3d 1236, 1239-40 (9th Cir. 2005) (Ferguson, 16 J., concurring) ("[M]unicipal police departments and bureaus are generally not considered 17 'persons' within the meaning of section 1983 "); Rodriguez v. Cnty. of Contra Costa, 2013 18 WL 5946112 at *3 (N.D. Cal. Nov. 5, 2013) (noting that outside of the Monell exception, 19 "sub-departments or bureaus of municipalities, such as the police departments, are not 20 generally considered 'persons' within the meaning of§ 1983."). Plaintiff does not argue, 21 nor can she, that the SDPD is not a municipality. Nor can Plaintiff argue that the SDPD is 22 a proper Defendant based on Plaintiffs factual allegations concerning discrete arrests and 23 the SDPD's alleged involvement in her son's conviction and trial. Therefore, Plaintiff 24 cannot pursue her § 1983 claims against the SDPD and her claims against it are dismissed. 25 Second, Plaintiffs claims against various SDPD Officers fail for insufficient service 26 of process. "A federal court is without personal jurisdiction over a defendant unless the 27 defendant has been served in accordance with Fed. R. Civ. P. 4." Lawrence v. Krahne, 698 28 F. App'x 504, 504 (9th Cir. 2017) (citation omitted). To properly serve the Defendants, 18 20cvl085-JO-MDD 1 Plaintiff needed to comply with Fed. R. Civ. P. 4( e) and a file a separate proof of service 2 as to each Defendant to demonstrate compliance. Fed. R. Civ. P. 4( e) (provides that service 3 can be effected by (1) personal delivery, (2) delivery at dwelling to someone of suitable 4 age and discretion residing there, (3) delivery to authorized agent, or (4) by compliance 5 with applicable state laws. California state law specifies that a summons can be served by 6 personal delivery, substitute service following reasonable diligence, service by mail with 7 notice and acknowledgement of receipt, or by publication. 8 §§ 415.10---50. "Once service is challenged, plaintiff[] bear[s] the burden of establishing 9 that service was valid under Rule 4." Brockmeyer v. May, 383 F.3d 798, 801 (9th Cir. 10 Cal. Code Civ. Proc. 2004). 11 The Court agrees with Defendants that Plaintiff "did not properly serve the 12 individually named Defendants under California law or Federal law." Dkt. 86-1 at 16. 13 Plaintiff apparently served the SDPD Officers-including City Attorney Jeff Jordon, 14 erroneously sued as Officer Jordan of the SDPD-by leaving copies at the SDPD with an 15 Officer "McAndrew." See Dkts. 8, 12-18, 21-22. This method of substitute service does 16 not comply with Rule 4 because there is no evidence that Plaintiff made prior reasonable 17 efforts to personally serve the Defendants, generally defined as two to three attempts, 18 pursuant to Cal. Code Civ. Proc.§ 415.20. Jes Solar Co. Ltd. v. Tong Sao Chung, 725 F. 19 App'x 467, 469-70 (9th Cir.), amended on denial ofreh'g, 716 F. App'x 635 (9th Cir. 20 2018) (finding insufficient service where plaintiff did not argue prior attempts were made 21 and there was no evidence in the record of same); Avalos v. MMDEOL Inc., 2021 WL 22 540380, at *4 (E.D. Cal. Jan. 12, 2021) (collecting cases). Plaintiff does not argue on 23 opposition that she made reasonable attempts to serve the SDPD Officers, and there are no 24 proofs of service or other evidence in the record that suggest that attempts were made. 25 Thus, the Court does not have personal jurisdiction over the SDPD Officers, and the claims 26 against them are dismissed. 27 II 28 II 19 20cvl085-JO-MDD 1 E. The Court Declines To Exercise Supplemental Jurisdiction Over Plaintiff's 2 Remaining State Law Claims 3 With the dismissals set forth above, the only remaining claims are state law claims 4 for suspected murder (Count VI); false imprisonment (Count IX); violation of the implied 5 covenant of good faith and fair dealing (Count X); false arrest (Count XI); defamation 6 (Count XIII); and interference with prospective economic advantages (Count XIV). 7 Plaintiffs remaining state law claims are dismissed for lack of supplemental jurisdiction. 8 The Court has "supplemental jurisdiction over all other claims that are so related to claims 9 in the action within such original jurisdiction that they form part of the same case or 10 controversy." 28 U.S.C. § 1367(a). In determining whether to exercise supplemental 11 jurisdiction, the Court examines whether the federal and state law claims "derive from a 12 common nucleus of operative fact[ s] ... such that [a plaintiff] would ordinarily be 13 expected to try them all in one judicial proceeding." United Mine Workers ofAm. v. Gibbs, 14 383 U.S. 715, 725 (1966). Even where supplemental jurisdiction exists, the Court may 15 decline to exercise supplemental jurisdiction if "(l) the claim raises a novel or complex 16 issue of state law; (2) the claim substantially predominates over the claim or claims over 17 which the district court has original jurisdiction; (3) the district court has dismissed all 18 claims over which it has original jurisdiction; or (4) in exceptional circumstances, there are 19 other compelling reasons for declining jurisdiction." 28 U.S.C. § 1367(c); Mendoza v. 20 Zirkle Fruit Co., 301 F.3d 1163, 1174 (9th Cir. 2002). In deciding whether to exercise 21 supplemental jurisdiction, the court should consider the interests of judicial economy, 22 convenience, fairness, and comity. City of Chicago v. Int '! College of Surgeons, 522 U.S. 23 156, 172-73 (1997); Smith v. Lenches, 263 F.3d 972, 977 (9th Cir. 2001). 24 The Court finds it doubtful that supplemental jurisdiction ever existed over 25 Plaintiffs state law claims for false imprisonment, violation of the implied covenant of 26 good faith and fair dealing, false arrest, defamation, and interference with prospective 27 economic advantages against Defendants Paradise, Dr. Bhatia, Allstate, CHP Officer Parra, 28 20 20cvl085-JO-MDD 1 Joel and Mary Johnson, and Alfonso and Esperanza Martinez. 7 Plaintiffs only federal 2 claim against all of these Defendants is her RICO claim. The basis of Plaintiffs RICO 3 claim is that Defendants "caus[ed] the death of Michael Sussman," perpetrated "the covert 4 murder of Michael Sussman," and committed "[p]ublic corruption which resulted in 5 death." SAC at 20; see also Section III.B supra. In contrast, Plaintiffs state law claims 6 are based on an array of discrete events, including ( 1) Allstate's alleged bad faith settlement 7 of a car accident, (2) Paradise's and Dr. Bhatia's alleged confinement of Plaintiff to a 8 psychiatric award, (3) Joel and Mary Johnson's and Alfonso and Esperanza Martinez's 9 alleged interference with Plaintiffs nursing license, and (4) CHP Officer Parra's false 10 arrest of Plaintiff. These events are wholly unrelated to the facts underlying the RICO 11 claim, and thus, even reading Plaintiffs SAC liberally, there is no common nucleus of 12 operative facts permitting supplemental jurisdiction. 13 Even if the Court were to find that supplemental jurisdiction over the remaining state 14 law claims once existed under 28 U.S.C. § 1367(a), the Court would decline to exercise 15 supplemental jurisdiction under 28 U.S.C. § 1367(c). Because the Court has dismissed all 16 of Plaintiffs federal claims-the claims that conferred original jurisdiction-the Court 17 need not exercise supplemental jurisdiction over the remaining unrelated state law claims. 18 See Section III.A-B supra; 28 U.S.C. § 1367(c); Sanfordv. MemberWorks, Inc., 625 F.3d 19 550,561 (9th Cir. 2010) ("[I]n the usual case in which all federal-law claims are eliminated 20 before trial, the balance of factors to be considered under the pendent jurisdiction 21 doctrine-judicial economy, convenience, fairness, and comity-will point toward 22 declining to exercise jurisdiction over the remaining state-law claims.") (quoting 23 Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988), superseded on other 24 25 26 27 28 Plaintiff also brings a claim against Anders Holthaus for "suspected murder," (Count VI), which is dismissed for lack of supplemental jurisdiction along with the other state law claims. 7 21 20cvl085-JO-MDD l grounds by statute as recognized in Fent v. Okla. Water Res. Bd., 235 F.3d 553,557 (10th 2 Cir. 2000)). Thus, Plaintiffs remaining claims are dismissed. 3 F. Dismissal With Prejudice 4 The Court finds that certain of Plaintiffs claims must be dismissed with prejudice. 5 Dismissal with prejudice is warranted where amendment would be futile because flaws in 6 the claims cannot be cured. Chaset v. Fleer/Skybox lnt'l, LP, 300 F.3d 1083, 1088 (9th 7 Cir. 2002) (finding leave to amend futile where "plaintiffs cannot cure the basic flaw in 8 their pleading"); Lipton v. Pathogenesis Corp., 284 F.3d 1027, 1039 (9th Cir. 2002) (same; 9 noting that where flaws cannot be cured, there is "no need to prolong the litigation by 10 permitting further amendment"). When claims are barred by immunity or by res judicata, 11 amendment is plainly futile. Riggs v. Jud. Conf of U.S., 137 F. App'x 72 (9th Cir. 2005) 12 (affirming dismissal with prejudice on res judicata grounds); Strand v. Gov 't of U.S., 846 13 F.2d 1383, at *2 (9th Cir. 1988) (affirming dismissal with prejudice on immunity grounds); 14 see also Golden v. Hubbell Inc., 343 F. App'x 226, 227-28 (9th Cir. 2009) (affirming 15 dismissal with prejudice of improperly named defendant). 16 Plaintiffs claims against the Judicial Defendants, the Prosecutorial Defendants, and 17 the SDPD must be dismissed with prejudice because amendment would be futile. First, 18 Plaintiffs claims against the Judicial Defendants are absolutely barred by judicial 19 immunity, and thus Plaintiff cannot cure her claims as to them. Similarly, except for 20 Plaintiffs claim against ADA Patrick based on her statements to the press, Plaintiff cannot 21 cure her claims against the Prosecutorial Defendants because they are absolutely barred by 22 prosecutorial immunity. 23 Plaintiffs § 1983 claims against it cannot be cured by any restatement of the facts. 24 Therefore, except for Plaintiffs foregoing claim against ADA Patrick, the Judicial 25 Defendants, the Prosecutorial Defendants, and the SDPD are dismissed with prejudice. Lastly, the SDPD is an improperly named Defendant and 26 Moreover, as discussed above, Plaintiffs Count I and V based on the conspiracy 27 against her son are barred by res judicata, making amendment futile, and thus Counts I and 28 V are dismissed with prejudice. Any attempt by Plaintiff to rep lead these claims based on 22 20cv I 085-JO-MDD 1 the same transactional nucleus of facts-the prosecution, conviction, and death of Mr. 2 Sussman-would necessarily require dismissal on the same res judicata grounds. 3 Amendment would therefore be futile and only prolong the litigation. Accordingly, Counts 4 I and V are dismissed with prejudice. 5 Plaintiffs remaining claims are dismissed without prejudice because amendment 6 would not be clearly futile at this juncture. Nevertheless, Plaintiff is on notice that the SAC 7 does not provide a short and plain statement of claims or state a claim as required by Rules 8 8 and 12(b)( 6). Plaintiff has 45 days from the date of this order to file an amended 9 complaint on the claims dismissed without prejudice. IV. CONCLUSION AND ORDER 10 11 12 For the reasons set out above, the Court grants Defendants' motions to dismiss [Dkts. 73, 7 6, 78, 80---81, 83-86, 89-90]. 13 14 IT IS SO ORDERED. 15 16 Dated: 17 United States District Judge 18 19 20 21 22 23 24 25 26 27 28 23 20cvl085-JO-MDD

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