Oliveira v. County of Madera et al

Filing 6

FINDINGS and RECOMMENDATIONS recommending that Plaintiff's First Amended Complaint be Dismissed Without Leave to Amend for Failure to State a Claim. Matter referred to Judge Drozd. Objections to F&R due within twenty-one (21) days of service of this recommendation; signed by Magistrate Judge Sheila K. Oberto on 9/19/2017. (Timken, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JOHN OLIVEIRA,
Plaintiff,

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Case No. 1:16-cv-01626-DAD-SKO
FINDINGS AND RECOMMENDATIONS
THAT PLAINTIFF’S FIRST AMENDED
COMPLAINT BE DISMISSED WITHOUT
LEAVE TO AMEND FOR FAILURE TO
STATE A CLAIM

v.
COUNTY OF MADERA, et al.,

(Doc. 5)

Defendants.

OBJECTIONS DUE: 21 DAYS

_____________________________________/

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I.

PROCEDURAL BACKGROUND

On October 28, 2016, Plaintiff John Oliveira (“Plaintiff”), proceeding pro se and in forma

22 pauperis, filed a complaint against Madera County (“the County”); District Attorney for the
23 County of Madera David Linn (“Linn”); former District Attorney for the County of Madera
24 Michael Keitz (“Keitz”); former Sheriff for the County of Madera John Anderson (“Anderson”);
25 Deputy District Attorney for the County of Madera Nicolas Fogg (“Fogg”); and Detective for the
26 Madera County Sheriff’s Department Robert Blehm (“Blehm”). (Doc. 1.) On February 9, 2017,
27 the undersigned found that Plaintiff’s complaint failed to state cognizable claims under 42 U.S.C.
28 § 1983 and under state tort law. (Doc. 4.) Plaintiff was provided with the applicable legal

1 standards so that he could determine if he would like to pursue his case, and was granted thirty
2 (30) days leave to file an amended complaint curing the pleading deficiencies identified in the
3 order. (Id.) On March 9, 2017, Plaintiff filed an amended complaint against the County; Linn;
4 Keitz; Anderson; Fogg; Blehm; the “Madera County District Attorney’s Office”; and Tyson Pogue
5 (“Pogue”) (collectively “Defendants”). (Doc. 5 (“Am. Compl.”).)
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After screening Plaintiff’s amended complaint, the Court finds that despite the explicit

7 recitation of the deficiencies of Plaintiff’s original complaint, Plaintiff has failed to state any
8 cognizable federal claims. Accordingly, the Court RECOMMENDS that Plaintiff’s amended
9 complaint be DISMISSED without leave to amend.
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II.

LEGAL STANDARD

In cases where the plaintiff is proceeding in forma pauperis, the Court is required to screen

12 each case, and shall dismiss the case at any time if the Court determines that the allegation of
13 poverty is untrue, or the action or appeal is frivolous or malicious, fails to state a claim upon
14 which relief may be granted, or seeks monetary relief against a defendant who is immune from
15 such relief. 28 U.S.C. § 1915(e)(2). If the Court determines that the amended complaint fails to
16 state a claim, leave to amend may be granted to the extent that the deficiencies of the complaint
17 can be cured by amendment. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc).
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The Court’s screening of the amended complaint under 28 U.S.C. § 1915(e)(2) is governed

19 by the following standards. A complaint may be dismissed as a matter of law for failure to state a
20 claim for two reasons: (1) lack of a cognizable legal theory; or (2) insufficient facts under a
21 cognizable legal theory. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir.
22 1990). Plaintiff must allege a minimum factual and legal basis for each claim that is sufficient to
23 give each defendant fair notice of what plaintiff’s claims are and the grounds upon which they
24 rest. See, e.g., Brazil v. U.S. Dep’t of the Navy, 66 F.3d 193, 199 (9th Cir. 1995); McKeever v.
25 Block, 932 F.2d 795, 798 (9th Cir. 1991).
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In determining whether a complaint states a claim on which relief may be granted,

27 allegations of material fact are taken as true and construed in the light most favorable to the
28 plaintiff. See Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). Moreover, since
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1 Plaintiff is appearing pro se, the Court must construe the allegations of the amended complaint
2 liberally and must afford plaintiff the benefit of any doubt. See Karim–Panahi v. Los Angeles
3 Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). However, “the liberal pleading standard . . .
4 applies only to a plaintiff’s factual allegations.” Neitzke v. Williams, 490 U.S. 319, 330 n.9
5 (1989). “[A] liberal interpretation of a civil rights complaint may not supply essential elements of
6 the claim that were not initially pled.” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257
7 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).
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Further, “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’

9 requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of
10 action will not do . . . . Factual allegations must be enough to raise a right to relief above the
11 speculative level.” See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal
12 citations omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (To avoid dismissal for
13 failure to state a claim, “a complaint must contain sufficient factual matter, accepted as true, to
14 ‘state a claim to relief that is plausible on its face.’ A claim has facial plausibility when the
15 plaintiff pleads factual content that allows the court to draw the reasonable inference that the
16 defendant is liable for the misconduct alleged.”) (internal citations omitted).
III.

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PLAINTIFF’S AMENDED COMPLAINT

This action is one of six cases 1 filed in in October–November 2016 in this Court arising

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19 out of an altercation that occurred at the Chukchansi Gold Resort and Casino (the “Casino”) in
20 Coarsegold, California and which resulted in Plaintiff’s arrest and criminal prosecution.
21 A.

Factual Allegations 2

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In August 2014, a “hostile faction” (the “Hostile Faction”) of the Picayune Rancheria of

23 Chukchansi Indians “took over” the Casino “by force.” (Am. Compl. ¶ 27.) The Hostile Faction
24 “took residence” in the Casino and hired a private security company, Security Training Concepts
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See, e.g., Jones v. Keitz, 1:16-cv-1725-LJO-EPG (E.D. Cal. Nov. 14, 2016); Auchenbach v. County of Madera, 1:16cv-1645-DAD-SKO (E.D. Cal. Oct. 31, 2016); Tofaute v. County of Madera, 1:16-cv-1627-DAD-SKO (E.D. Cal.
Oct. 28, 2016); Anderson v. County of Madera, 1:16-cv-1629-DAD-SKO (E.D. Cal. Oct. 28, 2016); Rhodes v. County
of Madera, 1:16-cv-1631-DAD-SKO (E.D. Cal. Oct. 28, 2016).
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The following description assumes, for purposes of this screening only, the truth of the allegations of the amended
complaint. See Lopez v. Bank of Am., No. 1:11–cv–00485–LJO–SMS, 2011 WL 1134671, at *2 (E.D. Cal. Mar. 28,
2011) (“When screening a plaintiff’s complaint, the Court must assume the truth of the factual allegations.”).

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1 (“STC”), “to protect them against any attempts by the [Picayune Rancheria of Chukchansi Indians
2 Tribal Council (“Tribal Council”)] to retake the Casino.” (Id. ¶ 28.)
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1.

The Incidents at the Butler Building in September 2014

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On or about September 3, 2014, members of the Tribal Council entered the “Butler

5 Building,” a structure located on the Picayune Rancheria, “in order to secure the facility from
6 trespass” by the Hostile Faction. (Id. ¶ 29.) The Madera County Sheriff’s Department “threatened
7 the Tribal Council that if they were to vacate the building at any time they would lose any control
8 of the facility and the [Department] would prohibit any parties from entering the building.” (Id. ¶
9 30.) In order to comply with the Sheriff’s Department’s instruction, “Treasurer Vernon King
10 volunteered to continuously occupy the Butler Building.” (Id. ¶ 31.) Mr. King “planned to live
11 and sleep in the Butler Building over several days.” (Id.)
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According to Plaintiff, Mr. King is a diabetic, and “Defendants were aware of [Mr.] King’s

13 medical condition.” (Id. ¶ 32.) The Madera County Sherriff’s Department “threatened Tribal
14 Council [] members with arrest if they made any attempt to enter the building to provide relief to
15 [Mr.] King.” (Id. ¶ 30.) “Plaintiff advised [the Department] that such a threat was unlawful and
16 [the Department] responded they would arrest them for disobeying a lawful order,” and the
17 Department “posted deputy sheriffs at the entrance to the Butler Building to prevent access by
18 members of the Tribal Council.” (Id. ¶¶ 30, 33.) Plaintiff and the Tribal Council “made several
19 attempts to provide food to [Mr.] King, but was turned away by the [Madera County Sheriff’s
20 Department].” (Id. ¶ 34.)
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Upon arriving at the Butler Building, Plaintiff contacted “Sgt. Weaver” of the Madera

22 County Sheriff’s Department regarding the refusal to allow food to Mr. King. (Id. ¶ 35.) Sgt.
23 Weaver advised Plaintiff that orders from Defendant Pogue were to not allow Mr. King access to
24 food. (Id.) After Plaintiff “advised Sgt. Weaver of the civil rights implications,” Sgt. Weaver
25 allowed food to be delivered to Mr. King. (Id. ¶ 36.) When Sgt. Weaver advised Defendant
26 Pogue over the telephone of his decision to allow Mr. King access to food, Plaintiff overheard
27 Defendant Pogue “chastising Sgt. Weaver for disobeying orders.” (Id. ¶ 37.) According to
28 Plaintiff, Defendant Pogue stated that Mr. King can “‘fucking starve’ or come out of that
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1 building.” (Id.)
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On September 9, 2014, Plaintiff accepted a position as and was appointed Chief of Police

3 for the Chukchansi Tribal Police Department of the Picayune Rancheria of Chukchansi Indians
4 (“Tribal Police”). (Id. ¶ 25.) During the course of this employment as Chief of Tribal Police,
5 Plaintiff was asked by the Tribal Council to investigate certain events at the Casino. (Id. ¶ 42.)
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On or about September 19, 2014, the Tribal Council summoned Plaintiff to the Butler

7 Building, where he made contact with Defendant Pogue. Defendant Pogue advised Plaintiff that
8 the County “had decided the Butler Building is a part of the Casino and therefore the Tribal
9 Council must vacate the building or risk arrest.” (Id. ¶¶ 38–39.) Defendant Pogue thereafter
10 ordered Tribal Council members “to move two concrete barriers being used for security purposes
11 on the roadway underneath the highway separating the Casino from the Tribal Business
12 Compound,” as they were in his view “in violation of state vehicle code.” (Id. ¶ 41.) Plaintiff
13 advised Defendant Pogue that his requests were “outside the jurisdiction” of the County under
14 “Public Law 280.” (Id. ¶ 40–41.) According to Plaintiff, Public Law 280 “confer[s] jurisdiction
15 on certain states, to include the State of California, over most or all of Indian country within their
16 borders . . . .” (Id. ¶ 17.)
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2.

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The October 3, 2014, Meeting with Defendant Keitz and Allegations of
Corruption Against Defendant Johnson

On or about October 3, 2014, Plaintiff met with Defendant Keitz. (Id. ¶ 83.) At that

20 meeting, Plaintiff gave advance notice of the Tribal Police’s intention to enter the Casino for the
21 purposes of searching for “an audit (‘the Audit’) required by the National Indian Gaming
22 Commission (‘NIGC’) for compliance with the Indian Gaming Regulatory Act” and to
23 “investigate allegations of corruption against [Defendant] Anderson.” (Id. ¶¶ 42, 81.) According
24 to Plaintiff, Defendant Keitz did not advise Plaintiff not to act. (Id. ¶ 65.) The meeting with
25 Defendant Keitz was “followed up with an email, which referenced the subject of the meeting.”
26 (Id. ¶ 83.)
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Plaintiff further alleges that, “[u]pon information and belief,” Defendant Anderson

28 “benefitted from his relationship with the Hostile Faction.” (Id. ¶ 59.) According to Plaintiff, he
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1 was “provided information regarding the acceptance of bribes” by Defendant Anderson, and
2 Defendant Anderson was “made aware of the investigation into the alleged bribes being conducted
3 by Plaintiff, thereby giving Defendant Anderson “motive to prosecute, defame, and discredit”
4 Plaintiff. (Id. ¶ 84.)
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The Incident at the Casino on October 9, 2014

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During Plaintiff’s employment as Chief of Tribal Police, the Tribal Council requested the

7 Tribal Police to search for the Audit required by the NIGC for compliance with the Indian Gaming
8 Regulatory Act. (Id. ¶ 42.) The NIGC had issued a “Temporary Closure Order” for the Casino if
9 the audit was not received by October 27, 2014. (Id. ¶ 44.) The Tribal Council had made several
10 requests for the Audit from the Hostile Faction, who “refused to relinquish it to the Tribal Council
11 or the NIGC.” (Id. ¶ 42.) According to Plaintiff, the Audit would subsequently reveal “over
12 $49,000,000 in unaccounted funds . . . for which members of the Hostile Faction would be
13 culpable.” (Id. ¶ 42.)
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On or about October 9, 2014, Plaintiff and nine (9) other members of the Tribal Police

15 went into the Casino to obtain a copy of the Audit and “were confronted by armed STC security
16 guards employed by the Hostile Faction.” (Id. ¶ 45.) STC personnel “assaulted tribal officers
17 with a Taser and refused to drop it after several verbal commands.” (Id. ¶ 46.) The Tribal Police
18 “detained several of the STC security guards for release to the [] County Sheriff’s Department.”
19 (Id. ¶ 47.)
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Tribal Resolution 2014-79, issued by the Tribal Council, requested the County Sheriff’s

21 Department to remove detained STC personnel from the Picayune Rancheria. (Id. ¶ 50.) On
22 October 9, 2014, Defendant Anderson was provided a copy of Tribal Resolution 2014-79 at the
23 scene, and was verbally requested by “the tribal attorney” and Tribal Council members “on at least
24 six separate occasions” to remove the detained security guard from the Picayune Rancheria. (Id.)
25 Plaintiff alleges that Defendant Anderson “refused to arrest the security guards or remove them
26 from the Picayune Rancheria.” (Id. ¶ 51.)
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At some point thereafter, Defendant Anderson “took custody of the security guards for the

28 Hostile Faction from the Tribal Police and removed them from the premises.”
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(Id. ¶ 53.)

1 Defendant Anderson “recognized” Plaintiff as a Tribal Police Officer and “made no attempt[] to
2 arrest or obstruct” Plaintiff from carrying out his “official duties.”

(Id. ¶ 54.)

However,

3 unbeknownst to Plaintiff, Defendant Anderson “promptly released security guards working for the
4 Hostile Faction” outside the Casino, “which resulted in the security guards returning inside and
5 assaulting several Tribal Police officers within five minutes of their release.” (Id. ¶ 55.) After the
6 “assault” on Tribal Officers by STC personnel, Defendants Anderson and Pogue arrived at the
7 scene. (Id. ¶ 57.) Plaintiff alleges that Defendant Pogue “withdrew his firearm and assaulted
8 Tribal Officer David Dixon without cause or provocation,” and later “attempt[ed] to physically
9 remove a firearm from Tribal Officer Tim Tofaute’s holster as he walked by.” (Id.)
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Plaintiff alleges further that “[d]espite evidence indicating STC owner, Leonard Rossen,

11 discharged his Taser at a Tribal Police [o]fficer,” the County Sheriff’s Department “refused to
12 examine the evidence on the scene to include physical evidence of the discharge in the form of
13 company manufactured identification markers identifying which particular Taser was discharged,
14 a wound to the Tribal Officer’s hand, or video evidence available to [the Department].” (Id. ¶ 56.)
15 According to Plaintiff, “[v]ideo evidence also reveals Tribal Officers offering the [County
16 Sheriff’s Department] investigators an opportunity to inspect all the Tasers in possession of the
17 Tribal Officers, as well as [] the wound to Tribal Officer Tim Tofaute’s hand, but [the]
18 investigators refused.” (Id.)
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According to Plaintiff, “[u]ntil the arrival of [the County Sheriff’s Department] on the

20 scene, no patrons of the Casino were placed at risk, nor was there any interference with gaming or
21 other business operations.” (Id. ¶ 48.) Plaintiff alleges that “[v]ideo evidence shows patrons
22 gambling, shopping, and checking into the hotel well over an hour after the Tribal Police secured
23 STC personnel and the scene,” and also shows “the evacuation of the Casino was solely [due to]
24 the actions of the [Sheriff’s Department] and [the] Hostile Faction.” (Id.)
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Plaintiff alleges that, “[u]pon information and belief, the [County Sheriff’s Department]

26 relayed false information and misrepresented facts regarding events of October 9, 2014, to the
27 California State Attorney General’s Office in order to justify a restraining order against Plaintiff.”
28 (Id. ¶ 49.)
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4.

The Investigation and Criminal Complaint Filed October 31, 2014

During the course of his investigation of the October 9, 2014, incident at the Casino,

3 Defendant Blehm contacted the Bureau of Indian Affairs, Plaintiff’s former employer, requesting
4 information about Plaintiff and his prior employment. (Id. ¶¶ 23, 120.) In response to the request,
5 the Bureau of Indian Affairs wrote a “[d]efamatory [l]etter,” which “contained a great deal of
6 confidential, sensitive, and protected information concerning Plaintiff.” (Id. ¶ 121.) Plaintiff
7 alleges that the County Sheriff’s Department “released, or caused to be released” the letter to a
8 local Fresno news station “who broadcast the letter and its contents to the public.” (Id. ¶ 122.)
9 Plaintiff alleges that Defendant Blehm “mischaracterized” Plaintiff and Tribal Police officers as
10 “thugs,” and “failed to disclose that [] Plaintiff was acting under the authority of the Tribal
11 Council, tribal law, Resolution by the Tribal Council, and federal law.” (Id. ¶ 124.) According to
12 Plaintiff, “[u]pon information and belief,” the County officials “recognized or were aware of the
13 legitimacy of the authority of the Tribal Council that employed the Plaintiff,” as the County
14 “accepted” $500,000 from the Tribal Council in April 2014 that was “publicized in the media.”
15 (Id. ¶ 89.)
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On October 31, 2014, Defendant Keitz “filed a criminal complaint against Plaintiff, and the

17 other Tribal Police officers, alleging 27 felony counts to include kidnapping, false imprisonment,
18 assault with a firearm, and illegal use of a stun gun.” (Id. ¶ 61.) Shortly thereafter, Plaintiff was
19 arrested and required to post bail, which was set at $1,400,000. (Id. ¶ 62.) According to Plaintiff,
20 Defendants knew that Plaintiff did not possess a firearm or Taser, and that neither Plaintiff nor any
21 other Tribal Police officer discharged a Taser. (Id. ¶ 64.) Plaintiff alleges that there was no
22 kidnapping; instead Plaintiff “lawfully and under tribal authority detained the security guards
23 hired by the Hostile Faction and turned them over” to Defendant Anderson and his deputies. (Id.)
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Ultimately, the criminal action was dismissed by Defendant Linn, who “opined on the

25 record that the actions lacked merit.” (Id. ¶ 63.) Specifically, Plaintiff alleges that Defendant
26 Linn “stated to the court on the record that the charges were dismissed for insufficient evidence,”
27 and “stated to the media that Defendants’ filing of criminal charges ‘wreaked of politics.’” (Id. ¶¶
28 82, 86.) Plaintiff alleges further that Defendant Keitz “filed an inaccurate and false complaint
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1 against the Plaintiff three days before election day,” and, upon filing charges, “held a press
2 conference to gain publicity and increase his potential votes.” (Id. ¶ 85.)
3 B.

Claims Asserted

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Based on these allegations, Plaintiff attempts to state the following claims:

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1.

Fourth and Fourteenth Amendment violations under 42 U.S.C. § 1983 (“Section
1983”) against all Defendants (“First Cause of Action,” Am. Comp. ¶¶ 67–78);

2.

Malicious Prosecution under Section 1983 against Defendants Madera County,
Linn, Anderson, Keitz, Fogg, and Blehm (“Second Cause of Action,” Am. Compl.
¶¶ 79–94);

3.

“Arrest Without Probable Cause” under Section 1983 against Defendants
Anderson, Keitz, Fogg, and Blehm (“Third Cause of Action,” Am. Compl. ¶¶ 95–
99);

4.

“False Arrest” under Section 1983 against Defendants Keitz, Fogg, Anderson, and
Blehm (“Fourth Cause of Action,” Am. Compl. ¶¶ 100–107);

5.

“Failure to Properly Train” under Section 1983 against Defendants Anderson,
Keitz, and Madera County (“Fifth Cause of Action,” Am. Compl. ¶¶ 108–118);

6.

“Violation of Privacy/Unlawful Disclosure/Defamation” against Defendants
Blehm, Madera County, and Anderson (“Sixth Cause of Action,” Am. Compl. ¶¶
119–130);

7.

“Intentional/Negligent Infliction of Emotional Distress” against Defendants Keitz,
Fogg, Anderson, and Blehm (“Seventh Cause of Action,” Am. Compl. ¶¶ 131–
136);

8.

“Interference with Economic Relations” against Defendants Madera County, Keitz,
Linn, Anderson, Fogg, and Blehm (“Eighth Cause of Action,” Am. Compl. ¶¶ 137–
138);

9.

Negligence against all Defendants (“Ninth Cause of Action,” Am. Compl. ¶¶ 139–
144); and

10.

“Injunctive Relief” (“Tenth Cause of Action,” Am. Compl. ¶¶ 145–148)

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IV.

DISCUSSION

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A.

42 U.S.C. § 1983: Malicious Prosecution

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To state a claim under § 1983, plaintiff must allege that: (1) the conduct complained of was

25 committed by a person acting under color of state law; and (2) that the conduct deprived plaintiff
26 of rights, privileges or immunities secured by the Constitution or laws of the United States.
27 Jensen v. City of Oxnard, 145 F.3d 1078, 1082 (9th Cir. 1998). To prevail on a § 1983 claim of
28 malicious prosecution, a plaintiff “must show that the defendants prosecuted [him] with malice
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1 and without probable cause, and that they did so for the purpose of denying [him] equal protection
2 or another specific constitutional right.” Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th
3 Cir. 2004). See also Usher v. City of L.A., 828 F.2d 556, 562 (9th Cir. 1987) (a malicious
4 prosecution claim is not generally cognizable federally if the state judicial system provides a
5 remedy, but “an exception exists to the general rule when a malicious prosecution is conducted
6 with the intent to deprive a person of equal protection of the laws or is otherwise intended to
7 subject a person to a denial of constitutional rights”).
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1.

Defendant Keitz

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Like the original complaint, Plaintiff’s amended complaint references malicious

10 prosecution but fails to raise any valid malicious prosecution claim under Section 1983. As
11 previously stated in the February 9, 2017, screening order, state prosecutors are entitled to
12 absolute prosecutorial immunity from claims under §1983 when they are acting pursuant to their
13 official role as advocates for the state performing functions “intimately associated with the judicial
14 phase of the criminal process.” Imbler v. Pachtman, 424 U.S. 409, 430 (1976). See also Gobel v.
15 Maricopa Cty., 867 F.2d 1201, 1203 (9th Cir. 1989).
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“In determining whether absolute immunity is available for particular actions, the courts

17 engage in a ‘functional’ analysis of each alleged activity.” Kulwicki v. Dawson, 969 F.2d 1454,
18 1463 (3rd Cir. 1992). In Schlegel v. Bebout, 841 F.2d 937, 943-44 (9th Cir. 1988), the Ninth
19 Circuit provided guidance to determine the scope of prosecutorial immunity:
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Our inquiry must center on the nature of the official conduct challenged,
and not the status or title of the officer. As a result, we must examine the
particular prosecutorial conduct of which [plaintiff] complains. If we
determine that the conduct is within the scope of [defendants’] authority
and is quasi-judicial in nature, our inquiry ceases since the conduct would
fall within the sphere of absolute immunity.
To determine whether conduct of a state official is within his or her
authority, the proper test is not whether the act performed was manifestly
or palpably beyond his or her authority, but rather whether it is more or
less connected with the general matters committed to his or her control or
supervision . . .
Absolute immunity depends on the function the officials are performing
when taking the actions that provoked the lawsuit. We must look to the
nature of the activity and determine whether it is “intimately associated

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with the judicial phase of the criminal process.” . . . . Investigative or
administrative functions carried out pursuant to the preparation of a
prosecutor’s case are also accorded absolute immunity.

3 (emphasis in original; citations omitted.)

The classification of the challenged acts, not the

4 motivation underlying them, determines whether absolute immunity applies. Ashelman v. Pope,
5 793 F.2d 1072 (9th Cir. 1986) (en banc).
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Prosecutors and other eligible government personnel are absolutely immune from § 1983

7 liability in connection with challenged activities related to the initiation and presentation of
8 criminal prosecutions. Imbler, 424 U.S. at 430–31; see also Kalina v. Fletcher, 522 U.S. 118
9 (1997); Roe v. City of S.F., 109 F.3d 578, 583 (9th Cir. 1997); Gobel, 867 F.2d at 1203. Courts
10 have held that the filing of a criminal complaint in state court is an activity protected by absolute
11 prosecutorial immunity. See, e.g., Heinemann v. Satterberg, 731 F.3d 914, 916 (9th Cir. 2013)
12 (upholding district court’s finding on summary judgment that the decision to file a criminal
13 complaint against the defendant in state court was protected by absolute prosecutorial immunity.);
14 Geiche v. City & Cty. of San Francisco, No. C 08–3233 JL, 2009 WL 1948830, at *4 (N.D. Cal.
15 July 2, 2009) (“Here, named defendant Steger is alleged to have done (and in fact did) nothing
16 more than sign the charging instrument against Plaintiff. Filing the criminal complaint was an
17 essential part of instigating the criminal prosecution and such conduct is entitled to absolute
18 immunity.”) (citing Demery v. Kupperman, 735 F.2d 1139, 1144 (9th Cir. 1984); Ybarra v. Reno
19 Thunderbird Mobile Home Village, 723 F.2d 675, 679 (9th Cir. 1984); Freeman on Behalf of the
20 Sanctuary v. Hittle, 708 F.2d 442, 443 (9th Cir. 1983)).
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“[A]bsolute prosecutorial immunity attaches to the actions of a prosecutor if those actions

22 were performed as part of the prosecutor’s preparation of his case, even if they can be
23 characterized as ‘investigative’ or ‘administrative.’” Demery v. Kupperman, 735 F.2d 1139, 1143
24 (9th Cir. 1984), cert. denied, 469 U.S. 1127 (1985). A prosecutor is absolutely immune when
25 making a decision to initiate a prosecution “even where he acts without a good faith belief that any
26 wrongdoing has occurred.” Kulwicki, 969 F.2d at 1463–64. Immunity extends to “the preparation
27 necessary to present a case,” including “obtaining, reviewing, and evaluation of evidence.” Id. at
28 1465 (quoting Schrob v. Catterson, 948 F.2d 1402, 1414 (3rd Cir. 1991)).
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1

Absolute prosecutorial immunity applies even if it leaves “the genuinely wronged

2 defendant without civil redress against a prosecutor whose malicious or dishonest action deprives
3 him of liberty.” Imbler, 424 U.S. at 427. Even charges of malicious prosecution, falsification of
4 evidence, coercion of perjured testimony and concealment of exculpatory evidence will be
5 dismissed on grounds of prosecutorial immunity. See Stevens v. Rifkin, 608 F. Supp. 710, 728
6 (N.D. Cal. 1984). Further activities intimately connected with the judicial phase of the criminal
7 process include making statements that are alleged misrepresentations and mischaracterizations
8 during hearings and discovery and in court papers, see Fry v. Melaragno, 939 F.2d 832,837–38
9 (9th Cir. 1991), and conferring with witnesses and allegedly inducing them to testify falsely, see
10 Demery, 735 F.2d at 1144.
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Plaintiff’s amended complaint alleges that Defendant Keitz met with Plaintiff before the

12 altercation at the Casino and that Defendant Keitz “did not advise [the Tribal Police] not to act.”
13 (Am. Compl. ¶ 65.)

The amended complaint then, without any supporting factual detail,

14 concludes that Defendant Keitz “filed an inaccurate and false complaint against [] Plaintiff three
15 days before election day.” (Id. ¶ 85.) This allegation is conclusory and therefore not entitled to
16 any weight. Iqbal, 556 U.S. at 681 (“Threadbare recitals of the elements of a cause of action,
17 supported by mere conclusory statements, do not suffice.”). The bare factual allegation that
18 Defendant Keitz met with Plaintiff and “did not advise [the Tribal Police] not to act” is insufficient
19 to allege that Defendant Keitz was not acting in his official capacity in initiating his prosecution of
20 Plaintiff. The amended complaint does not allege that Defendant Keitz was acting outside his
21 authority and therefore he is entitled to absolute prosecutorial immunity. Imbler, 424 U.S. at 430–
22 31. As such, Plaintiff’s § 1983 claim against Defendant Keitz is barred. See, e.g., Jones v. Keitz,
23 No. 1:16-cv-01725-LJO-EPG, 2017 WL 1375230, at *4 (E.D. Cal. Apr. 17, 2017) (dismissing
24 similar § 1983 claim against Defendant Keitz as barred by absolute prosecutorial immunity).
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2. Defendants Anderson, Linn, Blehm and Fogg
The Ninth Circuit has long recognized that “[f]iling a criminal complaint immunizes

27 investigating officers . . . from damages suffered thereafter because it is presumed that the
28 prosecutor filing the complaint exercised independent judgment in determining that probable
12

1 cause for an accused’s arrest exists at that time.” Smiddy v. Varney, 665 F.2d 261, 266 (9th Cir.
2 1981) (“Smiddy I”), overruled on other grounds by Beck v. City of Upland, 527 F.3d 853, 865 (9th
3 Cir. 2008). However, “[t]he presumption can be overcome, for example, by evidence that the
4 officers knowingly submitted false information or pressured the prosecutor to act contrary to her
5 independent judgment.” Smiddy v. Varney, 803 F.2d 1469, 1471 (9th Cir. 1986), opinion modified
6 on denial of reh’g, 811 F.2d 504 (9th Cir. 1987) (“Smiddy II”); see also Borunda v. Richmond,
7 885 F.2d 1384, 1390 (9th Cir. 1988) (evidence that police officers provided prosecutor with only a
8 police report containing “striking omissions” indicated that the officers “procured the filing of the
9 criminal complaint by making misrepresentations to the prosecuting attorney” and was sufficient
10 to overcome the presumption). In contrast, the Ninth Circuit has clarified that a plaintiff’s account
11 of the incident in question, by itself, does not overcome the presumption of independent judgment.
12 Sloman v. Tadlock, 21 F.3d 1462, 1474 (9th Cir. 1994). When a plaintiff pleads no facts to rebut
13 the presumption of prosecutorial independence, dismissal is appropriate. Smiddy II, 803 F.2d at
14 1471.
15

In the amended complaint, Plaintiff alleges Defendant Anderson “was made aware of the

16 investigation into the alleged bribes being conducted by Plaintiff,” and “had motive to prosecute,
17 defame, and discredit Plaintiff.” (Am. Compl. ¶ 84.) This vague insinuation falls far short of
18 alleging that Defendants Anderson, Linn, Blehm, and/or Fogg pressured the prosecutor to press
19 charges, supplied false information to the prosecutor, withheld relevant information from the
20 prosecutor, or otherwise persuaded the prosecutor to act contrary to his independent judgment. 3
21
22
23
24
25

3

Indeed, the amended complaint makes no specific allegations about Defendants Blehm, Linn, or Fogg related to the
false arrest or malicious prosecution allegations at all. The only factual allegation in the amended complaint about
Defendant Blehm is related to the sixth cause of action, which alleges that he “investigated the events of October 9,
2014 for [the County]” and “contacted the Bureau of Indian Affairs requesting information about Plaintiff and his
prior employment.” (Am. Compl. ¶ 120.) At most, these few allegations suggest that Defendant Blehm was part of
the team investigating the incident and that he should have concluded based on his investigation that Plaintiff had not
acted unlawfully.

26 The allegations against Defendants Linn and Fogg are even more scant. The only factual allegation in the amended
27
28

complaint about Defendant Linn “stated to the court on the record that the charges were dismissed for insufficient
evidence,” and he “stated to the media that Defendants' filing of criminal charges ‘wreaked of politics.’” (Am.
Compl. ¶¶ 82, 86.) Defendant Fogg allegedly stated, upon dismissal of the criminal charges against Plaintiff, that
“their intent was to ‘make an example’ of [] Plaintiff.’” (Id. ¶ 82.)

13

1 Smiddy II, 803 F.2d at 1471. In short, Plaintiff has alleged no facts in the amended complaint that,
2 if true, would rebut the Smiddy presumption of prosecutorial independence. Therefore, Plaintiff
3 does not—and cannot—state a claim under § 1983 based on malicious prosecution against
4 Defendants Anderson, Linn, Blehm, or Fogg. See, e.g., Jones v. Keitz, No. 1:16-cv-01725-LJO5 EPG, 2017 WL 3394121, at *5 (E.D. Cal. Aug. 8, 2017) (dismissing similar malicious prosecution
6 claims against Defendants Anderson and Blehm).
7 B.

42 U.S.C. § 1983: False Arrest and “Arrest Without Probable Cause” 4

8

Plaintiff also alleges that Defendants violated his constitutional rights under the Fourth

9 Amendment by arresting him. (Am. Compl. ¶¶ 69, 80–81.) Where an arrest occurs after the filing
10 of criminal charges, as Plaintiff alleges here (see Am. Compl. ¶¶ 61–62), the arrest necessarily
11 took place pursuant to legal process and therefore was not a “false” arrest. See Wallace v. Kato,
12 549 U.S. 384, 389 (2007). As this Court explained in Miller v. Schmitz, No. 1:12-CV-00137-LJO,
13 2012 WL 1609193, at *4–5 (E.D. Cal. May 8, 2012):
14
15
16
17
18
19
20
21
22
23

Plaintiff alleges that he was placed under arrest only after a criminal
complaint and a warrant were issued for his arrest. In other words,
Plaintiff alleges that his arrest was the result of legal process. Under such
circumstances, there can be no claim for false arrest; false arrest consists
of an arrest made in the absence of legal process. Wallace v. Kato, 549
U.S. 384, 389 (2007); Blaxland v. Commonwealth Dir. of Pub.
Prosecutions, 323 F.3d 1198, 1204–06 (9th Cir. 2003). Where, as here,
the arrest is made after legal process has been initiated, any challenge to
the arrest is subsumed by a claim for malicious prosecution. As the
Supreme Court explained:
Reflective of the fact that false imprisonment consists of detention
without legal process, a false imprisonment ends once the victim
becomes held pursuant to such process-when, for example, he is
bound over by a magistrate or arraigned on charges. Thereafter,
unlawful detention forms part of the damages for the entirely
distinct tort of malicious prosecution, which remedies detention

24 These allegations are insufficient to suggest, as they must, that Defendants Blehm’s, Linn’s, or Fogg’s actions
25
26
27
28

overcame Defendant Keitz’s independent judgment. Smiddy II, 803 F.2d at 1471.
4
As Plaintiff’s § 1983 claims for “false arrest” and “arrest without probable cause” can legally be understood as
raising the same claim—false arrest without probable cause—they will be analyzed together. See Stilwell v. Clark
Cty., No. 2:11-cv-01549-RFB-VCF, 2016 WL 4033959, at *4 (D. Nev. July 26, 2016) (analyzing claims under the
Fourth Amendment for “false arrest” and “citation without probable cause” under the false arrest inquiry). Cf.
Jackson v. Puebla, No. CV 12–6370–TJH (RNB), 2012 WL 5964575, at *5 (C.D. Cal. Oct. 17, 2012) (“Plaintiff’s
false arrest claim is properly analyzed under the Fourth Amendment, which accords the right to protection from arrest
without probable cause.”); McDougald v. Ramar, No. CIV F 08-238 AWI DLB, 2008 WL 2489889, at *3 (E.D. Cal.
June 18, 2008) (referring to a false arrest claim under Section 1983 as an “arrest without probable cause” claim).

14

accompanied, not by absence of legal process, but by wrongful
institution of legal process. If there is a false arrest claim, damages
for that claim cover the time of detention up until issuance of
process or arraignment, but not more. From that point on, any
damages recoverable must be based on a malicious prosecution
claim and on the wrongful use of judicial process rather than
detention itself.

1
2
3
4
5

Wallace, 549 U.S. at 389-90 (internal quotation marks and citations
omitted). Accord Beck v. City of Upland, 527 F.3d 853, 861 n.7 (9th Cir.
2008) (noting that the claim for “false arrest” was actually a claim for
malicious prosecution because the plaintiff was arrested only after the
prosecutor had filed a criminal complaint against the plaintiff); Wilkins v.
DeReyes, 528 F.3d 790, 798-99 (10th Cir. 2008) (construing the plaintiff’s
challenge to detention pursuant to an arrest warrant as a claim for
malicious prosecution and not false arrest).

6
7
8
9
10

Because the arrest alleged in the amended complaint took place pursuant to legal process

11 (i.e. the October 31, 2014, filing of the criminal complaint by Defendant Keitz), Plaintiff’s § 1983
12 claim predicated on false arrest in violation of the Fourth Amendment is “subsumed by a claim for
13 malicious prosecution.”

Miller, 2012 WL 1609193, at *4 (E.D. Cal. May 8, 2012) (citing

14 Wallace, 549 U.S. at 389-90). Because Plaintiff has previously been granted an opportunity to
15 amend his complaint and further amendment would be futile, it is recommended that Plaintiff’s
16 claim be dismissed without leave to amend. See Jones, 2017 WL 3394121, at *4 (dismissing
17 similar false arrest claims on grounds that they are “subsumed” by claims for malicious
18 prosecution).
19 C.

42 U.S.C. § 1983: Monell and Supervisor Liability for “Failure to Train” 5

20

Under longstanding Supreme Court authority, a municipality cannot be held liable under

21 § 1983 simply because it employs an individual accused of, or who has engaged in, illegal or
22 unconstitutional conduct. Monell v. Dept. of Soc. Servs., 436 U.S. 658, 691 (1978) (holding that
23 “[a] municipality cannot be held liable solely because it employs a tortfeasor—or, in other words,
24 a municipality cannot be held liable under § 1983 on a respondeat superior theory”); see also Bd.
25
26
27
28

5

Plaintiff purports to bring § 1983 claims against the “Madera County District Attorney’s Office” and the” Madera
County Sheriff’s Department.” (See Am. Compl., Second Cause of Action.) Under § 1983, “persons” includes
municipalities. It does not include municipal departments. Vance v. Cnty. of Santa Clara, 928 F. Supp. 993, 995–96
(N.D.Cal.1996). Because the Sheriff’s Department and the District Attorney’s Office are each subdivisions of a local
government entity (in this case the County of Madera), they are not proper defendants for purposes of Plaintiff’s §
1983 claims. See Vega v. Cnty. of Yolo, Nelson v. Cty. of Sacramento, 926 F. Supp. 2d 1159, 1170 (E.D. Cal. 2013).
The Court will therefore consider Plaintiff’s § 1983 claims alleged against these entities as alleged against the County.

15

1 of Cty. Comm’rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 404 (1997) (“[I]t is not enough
2 [under Monell ] for a § 1983 plaintiff merely to identify conduct properly attributable to the
3 municipality.

The plaintiff must also demonstrate that, through its deliberate conduct, the

4 municipality was the ‘moving force’ behind the injury alleged.”). Because there is no respondeat
5 superior liability under § 1983, counties and municipalities may be sued under § 1983 only upon a
6 showing that an official policy or custom caused the constitutional tort. See Monell, 436 U.S. at
7 691. “A local government entity cannot be held liable under § 1983 unless the plaintiff alleges
8 that the action inflicting injury flowed from either an explicitly adopted or a tacitly authorized
9 [governmental] policy.” Ortez v. Washington Cty., State of Or., 88 F.3d 804, 811 (9th Cir. 1996)
10 (citation and quotations omitted) (alteration in original). “[L]ocal governments, like any other §
11 1983 ‘person,’ . . . may be sued for constitutional deprivations visited pursuant to governmental
12 ‘custom’ even though such a custom has not received formal approval through the body’s official
13 decisionmaking channels.” Monell, 436 U.S. at 690–91. A local governmental entity may also
14 “be liable if it had a policy or custom of failing to train its employees and that failure to train
15 caused the constitutional violation.” Collins v. City of Harker Heights, Tex., 503 U.S. 115, 123
16 (1992). “In particular . . . the inadequate training of police officers could be characterized as the
17 cause of the constitutional tort if—and only if—the failure to train amounted to ‘deliberate
18 indifference’ to the rights of persons with whom the police come into contact.” Id. (citing City of
19 Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989)).
20

“A supervisor can be liable [under § 1983] in his individual capacity for his own culpable

21 action or inaction in the training, supervision, or control of his subordinates; for his acquiescence
22 in the constitutional deprivation; or for conduct that showed a reckless or callous indifference to
23 the rights of others.” Starr v. Baca, 652 F.3d 1202, 1208 (9th Cir. 2011) (quoting Watkins v. City
24 of Oakland, 145 F.3d 1087, 1093 (9th Cir. 1998)). “[A]cquiescence or culpable indifference” may
25 suffice to show that a supervisor “personally played a role in the alleged constitutional violations.”
26 Menotti v. City of Seattle, 409 F.3d 1113, 1149 (9th Cir. 2005).

Where the applicable

27 constitutional standard is deliberate indifference, “a plaintiff may state a claim against a supervisor
28 for deliberate indifference based upon the supervisor's knowledge of and acquiescence in
16

1 unconstitutional conduct by his or her subordinates.” Starr, 652 F.3d at 1207.
2

The amended complaint alleges that “it was the policy and/or custom of the County of

3 Madera to inadequately and improperly train sheriff’s department and district attorney's office
4 personnel regarding the concurrent jurisdiction between the tribe and county as mandated or
5 required by federal law”; that Defendants “as a matter of custom, practice and policy, failed to
6 maintain adequate and proper training as to jurisdiction, tribal sovereignty and Public Law 280;
7 and to prevent the consistent and systematic violation of civil rights against Native Americans”;
8 and that Defendants “failed to provide adequate training to deputies on the proper law, protocol
9 and procedure regarding the sovereign authority of tribes, detention and arrest of non-Indians and
10 Indians, and criminal and civil jurisdiction under Public Law 280.” (Am. Compl. ¶¶ 74, 111–12.)
11 The allegation of a cognizable claim “requires more than labels and conclusions, and a formulaic
12 recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555–56.

No factual

13 allegations in Plaintiff’s amended complaint support the conclusory allegation that the County
14 failed to train its personnel, nor are there any factual allegations that the individual Defendants
15 failed to train their subordinates, or acquiesced in such unconstitutional conduct by others. A
16 conclusory allegation regarding the existence of a policy or custom or the lack of training
17 unsupported by factual allegations is insufficient to state a Monell claim.

See Save CCSF

18 Coalition v. Lim, No. 14–cv–05286–SI, 2015 WL 3409260, at *13 (N.D. Cal. May 27, 2015)
19 (unspecific allegation regarding municipal defendant’s use of force policy insufficient to identify a
20 relevant policy or custom under Monell); Telles v. City of Waterford, No. 1:10–cv–00982–AWI–
21 SKO, 2010 WL 5314360, at *4 (E.D. Cal. Dec. 20, 2010) (to sufficiently state a claim under
22 Monell, a plaintiff must allege facts establishing a policy or establishing a lack of training; it is not
23 enough simply to state that there is a policy or allege a lack of training or supervision); Jenkins v.
24 Humboldt Cty., H.C.C.F., No. C 09-5899 PJH, 2010 WL 1267113, at *3 (N.D. Cal. Mar. 29, 2010)
25 (same); Smith v. Cty. of Stanislaus, No. 1:11–cv–01655–LJO–SKO, 2012 WL 253241, at *3 (E.D.
26 Cal. Jan. 26, 2012) (same). These generic allegations are therefore insufficient to sustain a claim
27 against Defendants under Monell.
28

“A municipality’s culpability for deprivation of rights is at its most tenuous where the
17

1 claim turns on a failure to train.” Connick v. Thompson, 563 U.S. 51, 61 (2011). To prove
2 deliberate indifference, a complaint must prove that a municipal actor disregarded a known or
3 obvious consequence of his or her actions. Bryan Cty., 520 U.S. at 410. When municipal
4 policymakers are on actual or constructive notice that an omission in their training program causes
5 employees to violate citizens’ constitutional rights, the municipality is deliberately indifferent if it
6 fails to act to correct the omission. Id. Failure to act in light of notice that its training program
7 results in constitutional violations “is the functional equivalent of a decision by the city itself to
8 violate the Constitution.” Canton, 489 U.S. at 395.
9

The standard is an exacting one. Applying a less demanding standard in failure-to-train

10 cases would circumvent the rule against respondeat superior liability of municipalities. Id. at 392.
11 “[M]unicipal liability under § 1983 attaches where—and only where—a deliberate choice to
12 follow a course of action is made from among various alternatives by [the relevant] officials.”
13 Penbauer v. City of Cincinnati, 475 U.S. 469, 483 (1986). To state a cognizable claim, a plaintiff
14 must allege specific facts supporting the conclusion that the municipal entity had actual or
15 constructive notice that their training program (or lack thereof) resulted in their employees’
16 violating citizens’ federal constitutional rights and that the municipality made a deliberate choice
17 to train (or not to train) its employees as a deliberate decision drawn from its consideration of
18 various alternatives.
19

In the face of these very stringent requirements, Plaintiff’s amended complaint alleges

20 nothing more than a completely unsupported legal conclusion that the County adopted a policy or
21 practice of inadequately training its County Sheriff’s Department and District Attorney’s office
22 personnel and that the individual Defendants failed to train those personnel. Plaintiff has not
23 alleged any facts explaining, for example, how the County’s policy or custom was deficient, how
24 it caused the alleged harm, how the infirmity of the custom or policy was so obvious that
25 policymakers were on notice that the constitutional injury was likely to occur, and how the
26 individual Defendants participated in that constitutional injury. See Flores v. Cty. of Los Angeles,
27 758 F.3d 1154, 1157 n.8 (9th Cir. 2014); Starr, 652 F.3d at 1207–08, 1216–17.
28 //
18

1

Moreover, Plaintiff’s amended complaint fails to allege sufficient facts to support a finding

2 that Defendants were deliberately indifferent because it does not allege any prior similar incidents.
3 See Connick, 563 U.S. at 63–64. “A pattern of similar constitutional violations by untrained
4 employees is ordinarily necessary to demonstrate deliberate indifference for purposes of failure to
5 train,’ though there exists a ‘narrow range of circumstances [in which] a pattern of similar
6 violations might not be necessary to show deliberate indifference.’” Flores, 758 F.3d at 1159
7 (quoting Connick, 563 U.S. at 62–63). In this “narrow range of circumstances,” a single incident
8 may suffice to establish deliberate indifference where the violation of constitutional rights is a
9 “highly predictable consequence” of a failure to train because that failure to train is “so patently
10 obvious.” Connick, 563 U.S. at 63–64 (discussing Canton, 489 U.S. 378). In Connick, the Court
11 concluded that failure to train liability could not be imposed upon a district attorney’s office based
12 upon a single Brady violation, concluding that “[t]hat sort of nuance [in training] simply cannot
13 support an inference of deliberate indifference.” Id. at 67. Here, Plaintiff has not alleged facts
14 showing a pre-existing pattern of constitutional violations stemming from the alleged failure to
15 train officers regarding concurrent jurisdiction.

Plaintiff also has not alleged that the

16 unconstitutional consequences of failing to train officers in concurrent jurisdiction were “patently
17 obvious” such that liability could be predicated.
18

Finally, Plaintiff does not make any connection between the failure to train County

19 personnel regarding concurrent jurisdiction and the resulting alleged malicious prosecution–nor
20 could he. Plaintiff’s arrests by the County Sheriff’s Department took place after Plaintiff was
21 criminally charged by the prosecutor. As explained above, it is “presumed that the prosecutor
22 filing the complaint exercised independent judgment in determining that probable cause for an
23 accused’s arrest exist[ed] at that time,” Smiddy I, 665 F.2d at 266, and Plaintiff has not alleged any
24 facts sufficient to rebut this presumption. Therefore, whether the County and/or the individual
25 Defendants failed to train their officers regarding concurrent jurisdiction in tribal territory is
26 “irrelevant to the arrests that took place after the filing of criminal charges by the state.” Jones,
27 2017 WL 1375230, at *6. The investigation and subsequent filing of criminal charges by the
28 prosecutor broke the causal chain between any policy or custom of the County and the allegedly
19

1 unconstitutional prosecution. Smiddy I, 665 F.2d at 266. Plaintiff’s vague allegations regarding
2 statements that the criminal complaint was intended to “make an example” of Plaintiff and
3 “wreaked of politics” do nothing to explain how the County’s and the individual Defendants’
4 alleged failure to train its personnel regarding concurrent jurisdiction caused Plaintiff’s injuries.
5 See Jones, 2017 WL 1375230, at *6.
6

As set forth above, a conclusory pleading, unsupported by factual allegations is insufficient

7 to state a claim. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555. Since this claim is not
8 cognizable, it is recommended that the Court dismiss it. See Forte v. Hughes, No. 1:13-CV9 01980-LJO-SMS, 2014 WL 2930834, at *13 (E.D. Cal. June 27, 2014).
10 D.

42 U.S.C. § 1983: Violation of the Fourteenth Amendment

11

Plaintiff alleges that Defendants “deprived Plaintiff of his rights, privileges and/or

12 immunities secured by the United States Constitution, which include but are not limited to,
13 violation of the . . . Fourteenth Amendment[] of the United States Constitution, by falsely arresting
14 Plaintiff, by depriving Plaintiff of his physical liberty and property, by causing Plaintiff emotional
15 injury and economic loss by falsely arresting him, by falsely and maliciously prosecuting criminal
16 actions, by unreasonably seizing his person or property, and by depriving Plaintiff of his civil
17 rights.” (Am. Compl. ¶ 64.) The crux of Plaintiff’s § 1983 claim is that they were arrested and
18 prosecuted without probable cause. Not only does this claim fail because its allegations “amount
19 to nothing more than a ‘formulaic recitation of the elements’” of the claim, Iqbal, 556 U.S. at 681,
20 it also is not cognizable under the Fourteenth Amendment.
To the extent Plaintiff bases his claim upon an alleged deprivation of his Fourteenth

21

22 Amendment right to substantive due process, the Supreme Court has said that “where a particular
23 Amendment ‘provides an explicit textual source of constitutional protection’ against a particular
24 sort of government behavior, ‘that Amendment, not the more generalized notion of “substantive
6
25 due process,” must be the guide for analyzing these claims.’” Albright v. Oliver, 510 U.S. 266,

26
27
28

6

As a preliminary matter, the Court notes that Plaintiff’s § 1983 claim alleges violations of both the Fourth and
Fourteenth Amendments. (See Am. Compl. ¶ 64.) In Section IV.B, the Court recommended dismissal of Plaintiff’s §
1983 claim based on the Fourth Amendment. In this Section, the Court addresses the claim to the extent that it is
based on the Fourteenth Amendment.

20

1 274, (1994) (plurality) (quoting Graham v. Connor, 490 U.S. 386, 395, (1989)). When a plaintiff
2 asserts the right to be free from arrest and prosecution without probable cause, “substantive due
3 process, with its ‘scarce and open-ended’ ‘guideposts,’ can afford him no relief.” Id. at 275
4 (plurality) (internal citation omitted). The Ninth Circuit in Awabdy confirmed that “[t]he principle
5 that Albright establishes is that no substantive due process right exists under the Fourteenth
6 Amendment to be free from prosecution without probable cause.” Awabdy, 368 F.3d at 1069
7 (citing Albright, 510 U.S. at 268, 271 (plurality) (further citations omitted)). Thus, Plaintiffs’
8 § 1983 claim based on deprivation of their Fourteenth Amendment rights to substantive due
9 process is subject to dismissal. See Hazlett v. Dean, No. CIV 2:12–01782 WBS DAD, 2013 WL
10 1749924, at *2 (E.D. Cal. Apr. 23, 2013); Chaffee v. Chiu, No. C–11–05118–YGR, 2012 WL
11 1110012, at *6 (N.D. Cal. Apr. 2, 2012) (dismissing “generalized substantive due process claims
12 under the Fourteenth Amendment” where the First and Fourth Amendments were “explicit textual
13 sources of constitutional protection in this action”).
14 E.

State Law Claims

15

Pursuant to 28 U.S.C. § 1367(a), in any civil action in which the district court has original

16 jurisdiction, the district court “shall have supplemental jurisdiction over all other claims in the
17 action within such original jurisdiction that they form part of the same case or controversy under
18 Article III,” except as provided in subsections (b) and (c). The Supreme Court has cautioned that
19 “if the federal claims are dismissed before trial, . . . the state claims should be dismissed as well.”
20 United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966). See also City of Chicago v.
21 Int’l. College of Surgeons, 522 U.S. 156, 172 (1997) (“that the terms of § 1367(a) authorize the
22 district courts to exercise supplemental jurisdiction over state law claims . . . does not mean that
23 the jurisdiction must be exercised in all cases”).
24

Although the Court may exercise supplemental jurisdiction over state law claims, Plaintiff

25 must first have a cognizable claim for relief under federal law. See 28 U.S.C. § 1367. Here,
26 Plaintiff fails to state a claim for relief on his federal claims under 42 U.S.C. § 1983. The Court
27 generally declines to exercise supplemental jurisdiction over state law claims in the absence of
28 viable federal claims and this case presents no exception. 28 U.S.C. § 1367(c)(3); Parra v.
21

1 PacifiCare of Ariz., Inc., 715 F.3d 1146, 1156 (9th Cir. 2013); Herman Family Revocable Trust v.
2 Teddy Bear, 254 F.3d 802, 805 (9th Cir. 2001); see also Watison v. Carter, 668 F.3d 1108, 1117
3 (9th Cir. 2012) (if court declines to exercise supplemental jurisdiction over state law claims once
4 court dismissed federal claims, then the court should dismiss the state law claims without
5 prejudice). Therefore, the undersigned recommends that the Court not exercise jurisdiction over
6 Plaintiffs’ state law claims. See, e.g., Jones, 2017 WL 3394121, at *6 (declining to exercise
7 jurisdiction in a similar case where the only cause of action brought under federal law was
8 dismissed).
V.

9
10

CONCLUSION AND RECOMMENDATIONS

While leave to amend must be freely given, the Court is not required to permit futile

11 amendments. See DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992); Reddy v.
12 Litton Indus., Inc., 912 F.2d 291, 296–97 (9th Cir. 1990); Rutman Wine Co. v. E. & J. Gallo
13 Winery, 829 F.2d 729, 738 (9th Cir. 1987); Klamath–Lake Pharm. Ass’n v. Klamath Med. Serv.
14 Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983). Here, Plaintiff has failed to cure the deficiencies
15 outlined in the Court’s earlier order and, based upon the record and the facts set forth in pleadings
16 filed by Plaintiff, as well as the Court’s recent dismissal of an action based on identical claims
17 involving the same events and the same defendants, Jones, 2017 WL 3394121, it does not appear
18 the deficiencies of the amended complaint can be cured by amendment. Thus, it appears that
19 granting Plaintiff further leave to amend would be futile. Lopez v. Smith, 203 F.3d 1122, 1128
20 (9th Cir. 2000) (dismissal is proper where it is obvious the plaintiff cannot prevail on the facts
21 alleged and that an opportunity to amend would be futile).
22

Based on the foregoing, it is HEREBY RECOMMENDED that:

23

1.

to state a cognizable federal claim;

24
25

2.

The Court DECLINE to exercise supplemental jurisdiction over Plaintiff’s state
law claims; and

26
27

Plaintiff’s amended complaint be DISMISSED without leave to amend for failure

3.

The case be CLOSED.

28
22

1

The Court further DIRECTS the Clerk to send a copy of this order to Plaintiff at his

2 address listed on the docket for this matter.
3

These findings and recommendations are submitted to the district judge assigned to this

4 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within twenty-one
5 (21) days of service of this recommendation, any party may file written objections to these
6 findings and recommendations with the Court and serve a copy on all parties. Such a document
7 should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The
8 district judge will review the magistrate judge’s findings and recommendations pursuant to 28
9 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified
10 time may waive the right to appeal the district judge’s order. Wilkerson v. Wheeler, 772 F.3d 834,
11 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).
12
13

IT IS SO ORDERED.

14 Dated:
15

September 19, 2017

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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.