Tofaute, et al v. County of Madera, et al

Filing 14

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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1 2 3 4 5 6 7 8 9 UNITED STATES DISTRICT COURT 10 EASTERN DISTRCTY.ICT OF CALIFORNIA 11 12 TIMOTHY S. TOFAUTE and DAVID DIXON, 13 14 FINDINGS AND RECOMMENDATIONS THAT PLAINTIFFS’ FIRST AMENDED COMPLAINT BE DISMISSED WITHOUT LEAVE TO AMEND FOR FAILURE TO STATE A CLAIM Plaintiffs, v. 15 16 17 18 Case No. 1:16-cv-01627-DAD-SKO (Doc. 13) COUNTY OF MADERA, et al., OBJECTIONS DUE: 21 DAYS Defendants. _____________________________________/ 19 20 21 22 23 24 25 26 27 28 I. PROCEDURAL BACKGROUND On October 28, 2016, Plaintiffs Timothy S. Tofaute and David Dixon (“Plaintiffs”), proceeding pro se and in forma pauperis, filed a complaint against Madera County (“the County”); District Attorney for the County of Madera David Linn (“Linn”); former District Attorney for the County of Madera Michael Keitz (“Keitz”); former Sheriff for the County of Madera John Anderson (“Anderson”); Deputy District Attorney for the County of Madera Nicolas Fogg (“Fogg”); and Detective for the Madera County Sheriff’s Department Robert Blehm (“Blehm”). (Doc. 1.) On February 3, 2017, the undersigned found that Plaintiffs’ complaint failed to state 1 cognizable claims under 42 U.S.C. § 1983 and under state tort law. (Doc. 12.) Plaintiffs were 2 provided with the applicable legal standards so that they could determine if they would like to 3 pursue their case, and were granted thirty (30) days leave to file an amended complaint curing the 4 pleading deficiencies identified in the order. (Id.) On March 3, 2017, Plaintiffs filed an amended 5 complaint against the County; Linn; Keitz; Anderson; Fogg; Blehm; the “Madera County District 6 Attorney’s Office”; and Tyson Pogue (“Pogue”) (collectively “Defendants”). (Doc. 13 (“Am. 7 Compl.”).) 8 After screening Plaintiffs’ amended complaint, the Court finds that despite the explicit 9 recitation of the deficiencies of Plaintiffs’ original complaint, Plaintiffs have failed to state any 10 cognizable federal claims. Accordingly, the Court RECOMMENDS that Plaintiffs’ amended 11 complaint be DISMISSED without leave to amend. 12 13 II. LEGAL STANDARD In cases where the plaintiff is proceeding in forma pauperis, the Court is required to screen 14 each case, and shall dismiss the case at any time if the Court determines that the allegation of 15 poverty is untrue, or the action or appeal is frivolous or malicious, fails to state a claim upon 16 which relief may be granted, or seeks monetary relief against a defendant who is immune from 17 such relief. 28 U.S.C. § 1915(e)(2). If the Court determines that the amended complaint fails to 18 state a claim, leave to amend may be granted to the extent that the deficiencies of the complaint 19 can be cured by amendment. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc). 20 The Court’s screening of the amended complaint under 28 U.S.C. § 1915(e)(2) is governed 21 by the following standards. A complaint may be dismissed as a matter of law for failure to state a 22 claim for two reasons: (1) lack of a cognizable legal theory; or (2) insufficient facts under a 23 cognizable legal theory. See Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 24 1990). A plaintiff must allege a minimum factual and legal basis for each claim that is sufficient 25 to give each defendant fair notice of what plaintiff’s claims are and the grounds upon which they 26 rest. See, e.g., Brazil v. U.S. Dep’t of the Navy, 66 F.3d 193, 199 (9th Cir. 1995); McKeever v. 27 Block, 932 F.2d 795, 798 (9th Cir. 1991). 28 In determining whether a complaint states a claim on which relief may be granted, 2 1 allegations of material fact are taken as true and construed in the light most favorable to the 2 plaintiff. See Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). Moreover, since 3 Plaintiffs are appearing pro se, the Court must construe the allegations of the amended complaint 4 liberally and must afford Plaintiffs the benefit of any doubt. See Karim–Panahi v. Los Angeles 5 Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988). However, “the liberal pleading standard . . . 6 applies only to a plaintiff’s factual allegations.” Neitzke v. Williams, 490 U.S. 319, 330 n.9 7 (1989). “[A] liberal interpretation of a civil rights complaint may not supply essential elements of 8 the claim that were not initially pled.” Bruns v. Nat’l Credit Union Admin., 122 F.3d 1251, 1257 9 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)). Further, “a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ 10 11 requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of 12 action will not do . . . . Factual allegations must be enough to raise a right to relief above the 13 speculative level.” See Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal 14 citations omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (To avoid dismissal for 15 failure to state a claim, “a complaint must contain sufficient factual matter, accepted as true, to 16 ‘state a claim to relief that is plausible on its face.’ A claim has facial plausibility when the 17 plaintiff pleads factual content that allows the court to draw the reasonable inference that the 18 defendant is liable for the misconduct alleged.”) (internal citations omitted). III. 19 PLAINTIFFS’ AMENDED COMPLAINT This action is one of six cases1 filed in in October–November 2016 in this Court arising 20 21 out of an altercation that occurred at the Chukchansi Gold Resort and Casino (the “Casino”) in 22 Coarsegold, California, and which resulted in Plaintiffs’ arrest and criminal prosecution. 23 A. Factual Allegations2 24 In August 2014, a “hostile faction” (the “Hostile Faction”) of the Picayune Rancheria of 25 26 27 28 1 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); Oliveira v. County of Madera, 1:16-cv-1626-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). 2 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.”). 3 1 Chukchansi Indians “took over” the Casino “by force.” (Am. Compl. ¶ 24.) The Hostile Faction 2 “took residence” in the Casino and hired a private security company, Security Training Concepts 3 (“STC”), “to protect them against any attempts by the [Picayune Rancheria of Chukchansi Indians 4 Tribal Council (“Tribal Council”)] to retake the Casino.” (Id. ¶ 25.) 5 1. The Incidents at the Butler Building in September 2014 6 On or about September 3, 2014, members of the Tribal Council entered the “Butler 7 Building,” a structure located on the Picayune Rancheria, “in order to secure the facility from 8 trespass” by the Hostile Faction. (Id. ¶ 26.) The Madera County Sheriff’s Department “threatened 9 the Tribal Council that if they were to vacate the building at any time they would lose any control 10 of the facility and the [Department] would prohibit any parties from entering the building.” (Id. ¶ 11 27.) In order to comply with the Sheriff’s Department’s instruction, “Treasurer Vernon King 12 volunteered to continuously occupy the Butler Building.” (Id. ¶ 28.) Mr. King “planned to live 13 and sleep in the Butler Building over several days.” (Id.) 14 According to Plaintiffs, Mr. King is a diabetic, and “Defendants were aware of [Mr.] 15 King’s medical condition.” (Id. ¶ 29.) The Madera County Sherriff’s Department “threatened 16 Tribal Council [] members with arrest if they made any attempt to enter the building to provide 17 relief to [Mr.] King.” (Id. ¶ 27.) “Plaintiffs advised [the Department] that such a threat was 18 unlawful and [the Department] responded they would arrest them for disobeying a lawful order,” 19 and the Department “posted deputy sheriffs at the entrance to the Butler Building to prevent access 20 by members of the Tribal Council.” (Id. ¶¶ 27, 30.) The Tribal Council “made several attempts to 21 provide food to [Mr.] King, but was turned away by the [Madera County Sheriff’s Department].” 22 (Id. ¶ 31.) 23 Upon arriving at the Butler Building, Chief of the Chukchansi Tribal Police Department of 24 the Picayune Rancheria of Chukchansi Indians (“Tribal Police”) John Oliveira (“Mr. Oliveira”) 25 contacted “Sgt. Weaver” of the Madera County Sheriff’s Department regarding the refusal to 26 allow food to Mr. King. (Id. ¶ 32.) Sgt. Weaver advised Plaintiffs that orders from Defendant 27 Pogue were to not allow Mr. King access to food. (Id.) After Mr. Oliveira “advised Sgt. Weaver 28 of the civil rights implications,” Sgt. Weaver allowed food to be delivered to Mr. King. (Id. ¶ 33.) 4 1 According to Plaintiffs, when Sgt. Weaver advised Defendant Pogue over the telephone of his 2 decision to allow Mr. King access to food, Mr. Oliveira overheard Defendant Pogue “chastising 3 Sgt. Weaver for disobeying orders.” (Id. ¶ 34.) According to Plaintiffs, Defendant Pogue stated 4 that Mr. King can “‘fucking starve’ or come out of that building.” (Id.) 5 On September 12, 2014, Plaintiffs accepted positions as Tribal Police Officers. (Id. ¶ 23.) 6 During the course of their employment as Tribal Police Officers, Plaintiffs were asked by the 7 Tribal Council to investigate certain events at the Casino. (Id. ¶ 39.) 8 On or about September 19, 2014, the Tribal Council summoned Mr. Oliveira to the Butler 9 Building, where he made contact with Defendant Pogue. Defendant Pogue advised Mr. Oliveira 10 that the County “had decided the Butler Building is a part of the Casino and therefore the Tribal 11 Council must vacate the building or risk arrest.” (Id. ¶¶ 35–36.) Defendant Pogue thereafter 12 ordered Tribal Council members “to move two concrete barriers being used for security purposes 13 on the roadway underneath the highway separating the Casino from the Tribal Business 14 Compound,” as they were in his view “in violation of state vehicle code.” (Id. ¶ 38.) Mr. Oliveira 15 advised Defendant Pogue that his requests were “outside the jurisdiction” of the County under 16 “Public Law 280.” (Id. ¶ 37.) According to Plaintiffs, Public Law 280 “confer[s] jurisdiction on 17 certain states, to include the State of California, over most or all of Indian country within their 18 borders . . . .” (Id. ¶ 17.) 19 2. 20 21 The October 3, 2014, Meeting with Defendant Keitz and Allegations of Corruption Against Defendant Johnson On or about October 3, 2014, Mr. Oliveira met with Defendant Keitz. (Id. ¶ 79.) At that 22 meeting, Mr. Oliveira gave advance notice of the Tribal Police’s intention to enter the Casino for 23 the purposes of searching for “an audit (‘the Audit’) required by the National Indian Gaming 24 Commission (‘NIGC’) for compliance with the Indian Gaming Regulatory Act” and to 25 “investigate allegations of corruption against [Defendant] Anderson.” (Id. ¶¶ 39, 79.) According 26 to Plaintiffs, Defendant Keitz did not advise Mr. Oliveira not to act. (Id. ¶ 61.) The meeting with 27 Defendant Keitz was “followed up with an email, which referenced the subject of the meeting.” 28 (Id. ¶ 79.) 5 1 Plaintiffs further allege that, “[u]pon information and belief,” Defendant Anderson 2 “benefitted from his relationship with the Hostile Faction.” (Id. ¶ 55.) According to Plaintiffs, 3 they were “provided information regarding the acceptance of bribes” by Defendant Anderson, and 4 Defendant Anderson was “made aware of the investigation into the alleged bribes being conducted 5 by Plaintiffs, thereby giving Defendant Anderson “motive to prosecute, defame, and discredit” 6 Plaintiffs. (Id. ¶ 80.) 7 3. The Incident at the Casino on October 9, 2014 8 During Plaintiffs’ employment as Tribal Police Officers, the Tribal Council requested the 9 Tribal Police to search for the Audit required by the NIGC for compliance with the Indian Gaming 10 Regulatory Act. (Id. ¶ 39.) The NIGC had issued a “Temporary Closure Order” for the Casino if 11 the audit was not received by October 27, 2014. (Id. ¶ 41.) The Tribal Council had made several 12 requests for the Audit from the Hostile Faction, who “refused to relinquish it to the Tribal Council 13 or the NIGC.” (Id. ¶ 42.) According to Plaintiffs, the Audit would subsequently reveal “over 14 $49,000,000 in unaccounted funds . . . for which members of the Hostile Faction would be 15 culpable.” (Id. ¶ 39.) 16 On or about October 9, 2014, Plaintiffs and eight (8) other members of the Tribal Police 17 went into the Casino to obtain a copy of the Audit and “were confronted by armed STC security 18 guards employed by the Hostile Faction.” (Id. ¶ 42.) STC personnel “assaulted tribal officers 19 with a Taser and refused to drop it after several verbal commands.” (Id. ¶ 43.) The Tribal Police 20 “detained several of the STC security guards for release to the [] County Sheriff’s Department.” 21 (Id. ¶ 44.) 22 Tribal Resolution 2014-79, issued by the Tribal Council, requested the County Sheriff’s 23 Department to remove detained STC personnel from the Picayune Rancheria. (Id. ¶ 46.) On 24 October 9, 2014, Defendant Anderson was provided a copy of Tribal Resolution 2014-79 at the 25 scene, and was verbally requested by “the tribal attorney” and Tribal Council members “on at least 26 six separate occasions” to remove the detained security guard from the Picayune Rancheria. (Id.) 27 Plaintiffs allege that Defendant Anderson “refused to arrest the security guards or remove them 28 from the Picayune Rancheria.” (Id. ¶ 47.) 6 1 At some point thereafter, Defendant Anderson “took custody of the security guards for the 2 Hostile Faction from the Tribal Police and removed them from the premises.” (Id. ¶ 49.) 3 Defendant Anderson “recognized” Plaintiffs as Tribal Police Officers and “made no attempt[] to 4 arrest or obstruct” Plaintiffs from carrying out their “official duties.” (Id. ¶ 50.) However, 5 unbeknownst to Plaintiffs, Defendant Anderson “promptly released security guards working for 6 the Hostile Faction” outside the Casino, “which resulted in the security guards returning inside and 7 assaulting several Tribal Police officers within five minutes of their release.” (Id. ¶ 51.) After the 8 “assault” on Tribal Officers by STC personnel, Defendants Anderson and Pogue arrived at the 9 scene. (Id. ¶ 53.) Plaintiffs allege that Defendant Pogue “withdrew his firearm and assaulted 10 Plaintiff [] Dixon without cause or provocation,” and later “attempt[ed] to physically remove a 11 firearm from Plaintiff [] Tofaute’s holster as he walked by.” (Id.) 12 Plaintiffs allege further that “[d]espite evidence indicating STC owner, Leonard Rossen, 13 discharged his Taser at a Tribal Police Officer,” the County Sheriff’s Department “refused to 14 examine the evidence on the scene to include physical evidence of the discharge in the form of 15 company manufactured identification markers identifying which particular Taser was discharged, 16 a wound to the Tribal Officer’s hand, or video evidence available to [the Department].” (Id. ¶ 52.) 17 According to Plaintiffs, “[v]ideo evidence also reveals Tribal Officers offering the [County 18 Sheriff’s Department] investigators an opportunity to inspect all the Tasers in possession of the 19 Tribal Officers, as well as [] the wound to Plaintiff [] Tofaute’s hand, but [the] investigators 20 refused.” (Id.) 21 According to Plaintiffs, “[u]ntil the arrival of [the County Sheriff’s Department] on the 22 scene, no patrons of the Casino were placed at risk, nor was there any interference with gaming or 23 other business operations.” (Id. ¶ 45.) Plaintiffs allege that “[v]ideo evidence shows patrons 24 gambling, shopping, and checking into the hotel well over an hour after the Tribal Police secured 25 STC personnel and the scene,” and also shows “the evacuation of the Casino was solely [due to] 26 the actions of the [Sheriff’s Department] and [the] Hostile Faction.” (Id.) 27 4. The Criminal Complaint Filed October 31, 2014 28 On October 31, 2014, Defendant Keitz “filed a criminal complaint against [] Plaintiffs, and 7 1 the other Tribal Police officers, alleging 27 felony counts to include kidnapping, false 2 imprisonment, assault with a firearm, and illegal use of a stun gun.” (Id. ¶ 57.) Shortly thereafter, 3 Plaintiffs were arrested and required to post bail, which was set at $800,000 for Plaintiff Tofaute 4 and $400,000 for Plaintiff Dixon. (Id. ¶ 58.) According to Plaintiffs, Defendants knew that 5 Plaintiffs did not possess a firearm or Taser, and that neither Plaintiffs nor any other Tribal Police 6 officer discharged a Taser. (Id. ¶ 60.) Plaintiffs allege that there was no kidnapping; instead 7 Plaintiffs “lawfully and under tribal authority detained the security guards hired by the Hostile 8 Faction and turned them over” to Defendant Anderson and his deputies. (Id.) According to 9 Plaintiffs, “[u]pon information and belief,” the County officials “recognized or were aware of the 10 legitimacy of the authority of the Tribal Council that employed [] Plaintiffs,” as the County 11 “accepted” $500,000 from the Tribal Council in April 2014 that was “publicized in the media.” 12 (Id. ¶ 85.) 13 Ultimately, the criminal action was dismissed by Defendant Linn, who “opined on the 14 record that the actions lacked merit.” (Id. ¶ 59.) Specifically, Plaintiffs allege that Defendant 15 Linn “stated to the court on the record that the charges were dismissed for insufficient evidence,” 16 and “stated to the media that Defendants’ filing of criminal charges ‘wreaked of politics.’” (Id. ¶¶ 17 78, 82.) Plaintiffs allege further that Defendant Keitz “filed an inaccurate and false complaint 18 against [] Plaintiffs three days before election day,” and, upon filing charges, “held a press 19 conference to gain publicity and increase his potential votes.” (Id. ¶ 81.) 20 B. Claims Asserted 21 Based on these allegations, Plaintiffs attempt to state the following claims: 22 1. Fourth and Fourteenth Amendment violations under 42 U.S.C. § 1983 (“Section 1983”) against all Defendants (“First Cause of Action,” Am. Comp. ¶¶ 63–74); 2. Malicious Prosecution under Section 1983 against Defendants Madera County, Linn, Anderson, Keitz, Fogg, and Blehm (“Second Cause of Action,” Am. Compl. ¶¶ 75–90); 3. “Arrest Without Probable Cause” under Section 1983 against Defendants Anderson, Keitz, Fogg, and Blehm (“Third Cause of Action,” Am. Compl. ¶¶ 91– 95); 4. “False Arrest” under Section 1983 against Defendants Keitz, Fogg, Anderson, and Blehm (“Fourth Cause of Action,” Am. Compl. ¶¶ 96–103); 23 24 25 26 27 28 8 5. “Intentional/Negligent Infliction of Emotional Distress” against Defendants Keitz, Fogg, Anderson, and Blehm (“Sixth Cause of Action,” Am. Compl. ¶¶ 115–120); 7. “Interference with Economic Relations” against Defendants Madera County, Keitz, Linn, Anderson, Fogg, and Blehm (“Seventh Cause of Action,” Am. Compl. ¶¶ 121–122); 8. Negligence against all Defendants (“Eighth Cause of Action,” Am. Compl. ¶¶ 123– 128); and 9. 2 “Failure to Properly Train” under Section 1983 against Defendants Anderson, Keitz, and Madera County (“Fifth Cause of Action,” Am. Compl. ¶¶ 104–114); 6. 1 “Injunctive Relief” (“Ninth Cause of Action,” Am. Compl. ¶¶ 129–132) 3 4 5 6 7 IV. 8 9 A. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 DISCUSSION 42 U.S.C. § 1983: Malicious Prosecution To state a claim under § 1983, a plaintiff must allege that: (1) the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct deprived plaintiff of rights, privileges or immunities secured by the Constitution or laws of the United States. Jensen v. City of Oxnard, 145 F.3d 1078, 1082 (9th Cir. 1998). To prevail on a § 1983 claim of malicious prosecution, a plaintiff “must show that the defendants prosecuted [him] with malice and without probable cause, and that they did so for the purpose of denying [him] equal protection or another specific constitutional right.” Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004). See also Usher v. City of L.A., 828 F.2d 556, 562 (9th Cir. 1987) (a malicious prosecution claim is not generally cognizable federally if the state judicial system provides a remedy, but “an exception exists to the general rule when a malicious prosecution is conducted with the intent to deprive a person of equal protection of the laws or is otherwise intended to subject a person to a denial of constitutional rights”). 1. Defendant Keitz Like the original complaint, Plaintiffs’ amended complaint references malicious prosecution but fails to raise any valid malicious prosecution claim under Section 1983. As previously stated in the February 2, 2017, screening order, state prosecutors are entitled to absolute prosecutorial immunity from claims under §1983 when they are acting pursuant to their official role as advocates for the state performing functions “intimately associated with the judicial 28 9 1 phase of the criminal process.” Imbler v. Pachtman, 424 U.S. 409, 430 (1976). See also Gobel v. 2 Maricopa Cty., 867 F.2d 1201, 1203 (9th Cir. 1989). 3 “In determining whether absolute immunity is available for particular actions, the courts 4 engage in a ‘functional’ analysis of each alleged activity.” Kulwicki v. Dawson, 969 F.2d 1454, 5 1463 (3rd Cir. 1992). In Schlegel v. Bebout, 841 F.2d 937, 943-44 (9th Cir. 1988), the Ninth 6 Circuit provided guidance to determine the scope of prosecutorial immunity: 7 8 9 10 11 12 13 14 15 16 17 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 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. 18 (emphasis in original; citations omitted.) The classification of the challenged acts, not the 19 motivation underlying them, determines whether absolute immunity applies. Ashelman v. Pope, 20 793 F.2d 1072 (9th Cir. 1986) (en banc). 21 Prosecutors and other eligible government personnel are absolutely immune from § 1983 22 liability in connection with challenged activities related to the initiation and presentation of 23 criminal prosecutions. Imbler, 424 U.S. at 430–31; see also Kalina v. Fletcher, 522 U.S. 118 24 (1997); Roe v. City of S.F., 109 F.3d 578, 583 (9th Cir. 1997); Gobel, 867 F.2d at 1203. Courts 25 have held that the filing of a criminal complaint in state court is an activity protected by absolute 26 prosecutorial immunity. See, e.g., Heinemann v. Satterberg, 731 F.3d 914, 916 (9th Cir. 2013) 27 (upholding district court’s finding on summary judgment that the decision to file a criminal 28 complaint against the defendant in state court was protected by absolute prosecutorial immunity.); 10 1 Geiche v. City & Cnty. of San Francisco, No. C 08–3233 JL, 2009 WL 1948830, at *4 (N.D. Cal. 2 July 2, 2009) (“Here, named defendant Steger is alleged to have done (and in fact did) nothing 3 more than sign the charging instrument against Plaintiff. Filing the criminal complaint was an 4 essential part of instigating the criminal prosecution and such conduct is entitled to absolute 5 immunity.”) (citing Demery v. Kupperman, 735 F.2d 1139, 1144 (9th Cir. 1984); Ybarra v. Reno 6 Thunderbird Mobile Home Village, 723 F.2d 675, 679 (9th Cir. 1984); Freeman on Behalf of the 7 Sanctuary v. Hittle, 708 F.2d 442, 443 (9th Cir. 1983)). 8 “[A]bsolute prosecutorial immunity attaches to the actions of a prosecutor if those actions 9 were performed as part of the prosecutor’s preparation of his case, even if they can be 10 characterized as ‘investigative’ or ‘administrative.’” Demery v. Kupperman, 735 F.2d 1139, 1143 11 (9th Cir. 1984), cert. denied, 469 U.S. 1127 (1985). A prosecutor is absolutely immune when 12 making a decision to initiate a prosecution “even where he acts without a good faith belief that any 13 wrongdoing has occurred.” Kulwicki, 969 F.2d at 1463–64. Immunity extends to “the preparation 14 necessary to present a case,” including “obtaining, reviewing, and evaluation of evidence.” Id. at 15 1465 (quoting Schrob v. Catterson, 948 F.2d 1402, 1414 (3rd Cir. 1991)). 16 Absolute prosecutorial immunity applies even if it leaves “the genuinely wronged 17 defendant without civil redress against a prosecutor whose malicious or dishonest action deprives 18 him of liberty.” Imbler, 424 U.S. at 427. Even charges of malicious prosecution, falsification of 19 evidence, coercion of perjured testimony and concealment of exculpatory evidence will be 20 dismissed on grounds of prosecutorial immunity. See Stevens v. Rifkin, 608 F. Supp. 710, 728 21 (N.D. Cal. 1984). Further activities intimately connected with the judicial phase of the criminal 22 process include making statements that are alleged misrepresentations and mischaracterizations 23 during hearings and discovery and in court papers, see Fry v. Melaragno, 939 F.2d 832,837–38 24 (9th Cir. 1991), and conferring with witnesses and allegedly inducing them to testify falsely, see 25 Demery, 735 F.2d at 1144. 26 Plaintiffs’ amended complaint alleges that Defendant Keitz met with Mr. Oliveira before 27 the altercation at the Casino and that Defendant Keitz “did not advise [the Tribal Police] not to 28 act.” (Am. Compl. ¶ 61.) The amended complaint then, without any supporting factual detail, 11 1 concludes that Defendant Keitz “filed an inaccurate and false complaint against [] Plaintiffs three 2 days before election day.” (Id. ¶ 81.) This allegation is conclusory and therefore not entitled to 3 any weight. Iqbal, 556 U.S. at 681 (“Threadbare recitals of the elements of a cause of action, 4 supported by mere conclusory statements, do not suffice.”). The bare factual allegation that 5 Defendant Keitz met with Mr. Oliveira and “did not advise [the Tribal Police] not to act” is 6 insufficient to allege that Defendant Keitz was not acting in his official capacity in initiating his 7 prosecution of Plaintiffs. The amended complaint does not allege that Defendant Keitz was acting 8 outside his authority and therefore he is entitled to absolute prosecutorial immunity. Imbler, 424 9 U.S. at 430–31. As such, Plaintiffs’ § 1983 claim against Defendant Keitz is barred. See, e.g., 10 Jones v. Keitz, No. 1:16-cv-01725-LJO-EPG, 2017 WL 1375230, at *4 (E.D. Cal. Apr. 17, 2017) 11 (dismissing similar § 1983 claim against Defendant Keitz as barred by absolute prosecutorial 12 immunity). 13 14 2. Defendants Anderson, Linn, Blehm and Fogg The Ninth Circuit has long recognized that “[f]iling a criminal complaint immunizes 15 investigating officers . . . from damages suffered thereafter because it is presumed that the 16 prosecutor filing the complaint exercised independent judgment in determining that probable 17 cause for an accused’s arrest exists at that time.” Smiddy v. Varney, 665 F.2d 261, 266 (9th Cir. 18 1981) (“Smiddy I”), overruled on other grounds by Beck v. City of Upland, 527 F.3d 853, 865 (9th 19 Cir. 2008). However, “[t]he presumption can be overcome, for example, by evidence that the 20 officers knowingly submitted false information or pressured the prosecutor to act contrary to her 21 independent judgment.” Smiddy v. Varney, 803 F.2d 1469, 1471 (9th Cir. 1986), opinion modified 22 on denial of reh’g, 811 F.2d 504 (9th Cir. 1987) (“Smiddy II”); see also Borunda v. Richmond, 23 885 F.2d 1384, 1390 (9th Cir. 1988) (evidence that police officers provided prosecutor with only a 24 police report containing “striking omissions” indicated that the officers “procured the filing of the 25 criminal complaint by making misrepresentations to the prosecuting attorney” and was sufficient 26 to overcome the presumption). In contrast, the Ninth Circuit has clarified that a plaintiff’s account 27 of the incident in question, by itself, does not overcome the presumption of independent judgment. 28 Sloman v. Tadlock, 21 F.3d 1462, 1474 (9th Cir. 1994). When a plaintiff pleads no facts to rebut 12 1 the presumption of prosecutorial independence, dismissal is appropriate. Smiddy II, 803 F.2d at 2 1471. In the amended complaint, Plaintiffs allege Defendant Anderson “was made aware of the 3 4 investigation into the alleged bribes being conducted by Plaintiffs,” and “had motive to prosecute, 5 defame, and discredit Plaintiffs.” (Am. Compl. ¶¶ 80–81.) This vague insinuation falls far short 6 of alleging that Defendants Anderson, Linn, Blehm, and/or Fogg pressured the prosecutor to press 7 charges, supplied false information to the prosecutor, withheld relevant information from the 8 prosecutor, or otherwise persuaded the prosecutor to act contrary to his independent judgment.3 9 Smiddy II, 803 F.2d at 1471. In short, Plaintiffs have alleged no facts in the amended complaint 10 that, if true, would rebut the Smiddy presumption of prosecutorial independence. Therefore, 11 Plaintiffs do not—and cannot—state a claim under § 1983 based on malicious prosecution against 12 Defendants Anderson, Linn, Blehm, or Fogg. See, e.g., Jones v. Keitz, No. 1:16-cv-01725-LJO13 EPG, 2017 WL 3394121, at *5 (E.D. Cal. Aug. 8, 2017) (dismissing similar malicious prosecution 14 claims against Defendants Anderson and Blehm). 15 B. 42 U.S.C. § 1983: False Arrest and “Arrest Without Probable Cause”4 16 Plaintiffs also allege that Defendants violated their constitutional rights under the Fourth 17 Amendment by arresting them. (Am. Compl. ¶¶ 64, 76–77.) Where an arrest occurs after the 18 filing of criminal charges, as Plaintiffs allege here (see Am. Compl. ¶¶ 57–58), the arrest 19 necessarily took place pursuant to legal process and therefore was not a “false” arrest. See 20 Wallace v. Kato, 549 U.S. 384, 389 (2007). As this Court explained in Miller v. Schmitz, No. 1:1221 22 23 24 25 26 27 28 3 Indeed, the amended complaint makes no specific allegations about Defendants Linn or Fogg related to the false arrest or malicious prosecution allegations, and makes no factual allegations at all pertaining to Defendant Blehm. The only factual allegation in the amended 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 Plaintiffs, that “their intent was to ‘make an example’ of [] Plaintiffs.’” (Id. ¶ 82.) These allegations are insufficient to suggest, as they must, that Defendants Linn’s or Fogg’s actions overcame Defendant Keitz’s independent judgment. Smiddy II, 803 F.2d at 1471. 4 As Plaintiffs’ § 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 Cnty., 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). 13 1 CV-00137-LJO, 2012 WL 1609193, at *4–5 (E.D. Cal. May 8, 2012): 2 3 4 5 6 7 8 9 10 11 12 13 14 15 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 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. 20 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). 21 Because the arrest alleged in the amended complaint took place pursuant to legal process 16 17 18 19 22 (i.e. the October 31, 2014, filing of the criminal complaint by Defendant Keitz), Plaintiffs’ § 1983 23 claim predicated on false arrest in violation of the Fourth Amendment is “subsumed by a claim for 24 malicious prosecution.” Miller, 2012 WL 1609193, at *4 (E.D. Cal. May 8, 2012) (citing 25 Wallace, 549 U.S. at 389-90). Because Plaintiffs have previously been granted an opportunity to 26 amend their complaint and further amendment would be futile, it is recommended that Plaintiffs’ 27 claim be dismissed without leave to amend. See Jones, 2017 WL 3394121, at *4 (dismissing 28 similar false arrest claims on grounds that they are “subsumed” by claims for malicious 14 1 prosecution). 2 C. 42 U.S.C. § 1983: Monell and Supervisor Liability for “Failure to Train”5 3 Under longstanding Supreme Court authority, a municipality cannot be held liable under 4 § 1983 simply because it employs an individual accused of, or who has engaged in, illegal or 5 unconstitutional conduct. Monell v. Dept. of Soc. Servs., 436 U.S. 658, 691 (1978) (holding that 6 “[a] municipality cannot be held liable solely because it employs a tortfeasor—or, in other words, 7 a municipality cannot be held liable under § 1983 on a respondeat superior theory”); see also Bd. 8 of Cty. Comm’rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 404 (1997) (“[I]t is not enough 9 [under Monell ] for a § 1983 plaintiff merely to identify conduct properly attributable to the 10 municipality. The plaintiff must also demonstrate that, through its deliberate conduct, the 11 municipality was the ‘moving force’ behind the injury alleged.”). Because there is no respondeat 12 superior liability under § 1983, counties and municipalities may be sued under § 1983 only upon a 13 showing that an official policy or custom caused the constitutional tort. See Monell, 436 U.S. at 14 691. “A local government entity cannot be held liable under § 1983 unless the plaintiff alleges 15 that the action inflicting injury flowed from either an explicitly adopted or a tacitly authorized 16 [governmental] policy.” Ortez v. Washington Cty., State of Or., 88 F.3d 804, 811 (9th Cir. 1996) 17 (citation and quotations omitted) (alteration in original). “[L]ocal governments, like any other § 18 1983 ‘person,’ . . . may be sued for constitutional deprivations visited pursuant to governmental 19 ‘custom’ even though such a custom has not received formal approval through the body’s official 20 decisionmaking channels.” Monell, 436 U.S. at 690–91. A local governmental entity may also 21 “be liable if it had a policy or custom of failing to train its employees and that failure to train 22 caused the constitutional violation.” Collins v. City of Harker Heights, Tex., 503 U.S. 115, 123 23 (1992). “In particular . . . the inadequate training of police officers could be characterized as the 24 25 26 27 28 5 Plaintiffs purport 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 Plaintiffs’ § 1983 claims. See Vega v. Cnty. of Yolo, Nelson v. Cnty. of Sacramento, 926 F. Supp. 2d 1159, 1170 (E.D. Cal. 2013). The Court will therefore consider Plaintiffs’ § 1983 claims alleged against these entities as alleged against the County. 15 1 cause of the constitutional tort if—and only if—the failure to train amounted to ‘deliberate 2 indifference’ to the rights of persons with whom the police come into contact.” Id. (citing City of 3 Canton, Ohio v. Harris, 489 U.S. 378, 388 (1989)). 4 “A supervisor can be liable [under § 1983] in his individual capacity for his own culpable 5 action or inaction in the training, supervision, or control of his subordinates; for his acquiescence 6 in the constitutional deprivation; or for conduct that showed a reckless or callous indifference to 7 the rights of others.” Starr v. Baca, 652 F.3d 1202, 1208 (9th Cir. 2011) (quoting Watkins v. City 8 of Oakland, 145 F.3d 1087, 1093 (9th Cir. 1998)). “[A]cquiescence or culpable indifference” may 9 suffice to show that a supervisor “personally played a role in the alleged constitutional violations.” 10 Menotti v. City of Seattle, 409 F.3d 1113, 1149 (9th Cir. 2005). Where the applicable 11 constitutional standard is deliberate indifference, “a plaintiff may state a claim against a supervisor 12 for deliberate indifference based upon the supervisor's knowledge of and acquiescence in 13 unconstitutional conduct by his or her subordinates.” Starr, 652 F.3d at 1207. 14 The amended complaint alleges that “it was the policy and/or custom of the County of 15 Madera to inadequately and improperly train sheriff’s department and district attorney's office 16 personnel regarding the concurrent jurisdiction between the tribe and county as mandated or 17 required by federal law”; that Defendants “as a matter of custom, practice and policy, failed to 18 maintain adequate and proper training as to jurisdiction, tribal sovereignty and Public Law 280; 19 and to prevent the consistent and systematic violation of civil rights against Native Americans”; 20 and that Defendants “failed to provide adequate training to deputies on the proper law, protocol 21 and procedure regarding the sovereign authority of tribes, detention and arrest of non-Indians and 22 Indians, and criminal and civil jurisdiction under Public Law 280.” (Am. Compl. ¶¶ 69, 107–08.) 23 The allegation of a cognizable claim “requires more than labels and conclusions, and a formulaic 24 recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555–56. No factual 25 allegations in Plaintiffs’ amended complaint support the conclusory allegation that the County 26 failed to train its personnel, nor are there any factual allegations that the individual Defendants 27 failed to train their subordinates, or acquiesced in such unconstitutional conduct by others. A 28 conclusory allegation regarding the existence of a policy or custom or the lack of training 16 1 unsupported by factual allegations is insufficient to state a Monell claim. See Save CCSF 2 Coalition v. Lim, No. 14–cv–05286–SI, 2015 WL 3409260, at *13 (N.D. Cal. May 27, 2015) 3 (unspecific allegation regarding municipal defendant’s use of force policy insufficient to identify a 4 relevant policy or custom under Monell); Telles v. City of Waterford, No. 1:10–cv–00982–AWI– 5 SKO, 2010 WL 5314360, at *4 (E.D. Cal. Dec. 20, 2010) (to sufficiently state a claim under 6 Monell, a plaintiff must allege facts establishing a policy or establishing a lack of training; it is not 7 enough simply to state that there is a policy or allege a lack of training or supervision); Jenkins v. 8 Humboldt Cty., H.C.C.F., No. C 09-5899 PJH, 2010 WL 1267113, at *3 (N.D. Cal. Mar. 29, 2010) 9 (same); Smith v. Cty. of Stanislaus, No. 1:11–cv–01655–LJO–SKO, 2012 WL 253241, at *3 (E.D. 10 Cal. Jan. 26, 2012) (same). These generic allegations are therefore insufficient to sustain a claim 11 against Defendants under Monell. 12 “A municipality’s culpability for deprivation of rights is at its most tenuous where the 13 claim turns on a failure to train.” Connick v. Thompson, 563 U.S. 51, 61 (2011). To prove 14 deliberate indifference, a complaint must prove that a municipal actor disregarded a known or 15 obvious consequence of his or her actions. Bryan Cty., 520 U.S. at 410. When municipal 16 policymakers are on actual or constructive notice that an omission in their training program causes 17 employees to violate citizens’ constitutional rights, the municipality is deliberately indifferent if it 18 fails to act to correct the omission. Id. Failure to act in light of notice that its training program 19 results in constitutional violations “is the functional equivalent of a decision by the city itself to 20 violate the Constitution.” Canton, 489 U.S. at 395. 21 The standard is an exacting one. Applying a less demanding standard in failure-to-train 22 cases would circumvent the rule against respondeat superior liability of municipalities. Id. at 392. 23 “[M]unicipal liability under § 1983 attaches where—and only where—a deliberate choice to 24 follow a course of action is made from among various alternatives by [the relevant] officials.” 25 Penbauer v. City of Cincinnati, 475 U.S. 469, 483 (1986). To state a cognizable claim, a plaintiff 26 must allege specific facts supporting the conclusion that the municipal entity had actual or 27 constructive notice that their training program (or lack thereof) resulted in their employees’ 28 violating citizens’ federal constitutional rights and that the municipality made a deliberate choice 17 1 to train (or not to train) its employees as a deliberate decision drawn from its consideration of 2 various alternatives. 3 In the face of these very stringent requirements, Plaintiffs’ amended complaint alleges 4 nothing more than a completely unsupported legal conclusion that the County adopted a policy or 5 practice of inadequately training its County Sheriff’s Department and District Attorney’s office 6 personnel and that the individual Defendants failed to train those personnel. Plaintiffs have not 7 alleged any facts explaining, for example, how the County’s policy or custom was deficient, how 8 it caused the alleged harm, how the infirmity of the custom or policy was so obvious that 9 policymakers were on notice that the constitutional injury was likely to occur, and how the 10 individual Defendants participated in that constitutional injury. See Flores v. Cty. of Los Angeles, 11 758 F.3d 1154, 1157 n.8 (9th Cir. 2014); Starr, 652 F.3d at 1207–08, 1216–17. 12 Moreover, Plaintiffs’ amended complaint fails to allege sufficient facts to support a finding 13 that Defendants were deliberately indifferent because it does not allege any prior similar incidents. 14 See Connick, 563 U.S. at 63–64. “A pattern of similar constitutional violations by untrained 15 employees is ordinarily necessary to demonstrate deliberate indifference for purposes of failure to 16 train,’ though there exists a ‘narrow range of circumstances [in which] a pattern of similar 17 violations might not be necessary to show deliberate indifference.’” Flores, 758 F.3d at 1159 18 (quoting Connick, 563 U.S. at 62–63). In this “narrow range of circumstances,” a single incident 19 may suffice to establish deliberate indifference where the violation of constitutional rights is a 20 “highly predictable consequence” of a failure to train because that failure to train is “so patently 21 obvious.” Connick, 563 U.S. at 63–64 (discussing Canton, 489 U.S. 378). In Connick, the Court 22 concluded that failure to train liability could not be imposed upon a district attorney’s office based 23 upon a single Brady violation, concluding that “[t]hat sort of nuance [in training] simply cannot 24 support an inference of deliberate indifference.” Id. at 67. Here, Plaintiffs have not alleged facts 25 showing a pre-existing pattern of constitutional violations stemming from the alleged failure to 26 train officers regarding concurrent jurisdiction. Plaintiffs also have not alleged that the 27 unconstitutional consequences of failing to train officers in concurrent jurisdiction were “patently 28 obvious” such that liability could be predicated. 18 1 Finally, Plaintiffs do not make any connection between the failure to train County 2 personnel regarding concurrent jurisdiction and the resulting alleged malicious prosecution–nor 3 could they. Plaintiffs’ arrests by the County Sheriff’s Department took place after Plaintiffs were 4 criminally charged by the prosecutor. As explained above, it is “presumed that the prosecutor 5 filing the complaint exercised independent judgment in determining that probable cause for an 6 accused’s arrest exist[ed] at that time,” Smiddy I, 665 F.2d at 266, and Plaintiffs have not alleged 7 any facts sufficient to rebut this presumption. Therefore, whether the County and/or the individual 8 Defendants failed to train their officers regarding concurrent jurisdiction in tribal territory is 9 “irrelevant to the arrests that took place after the filing of criminal charges by the state.” Jones, 10 2017 WL 1375230, at *6. The investigation and subsequent filing of criminal charges by the 11 prosecutor broke the causal chain between any policy or custom of the County and the allegedly 12 unconstitutional prosecution. Smiddy I, 665 F.2d at 266. Plaintiffs’ vague allegations regarding 13 statements that the criminal complaint was intended to “make an example” of Plaintiffs and 14 “wreaked of politics” do nothing to explain how the County’s and the individual Defendants’ 15 alleged failure to train its personnel regarding concurrent jurisdiction caused Plaintiffs’ injuries. 16 See Jones, 2017 WL 1375230, at *6. 17 As set forth above, a conclusory pleading, unsupported by factual allegations is insufficient 18 to state a claim. Iqbal, 556 U.S. at 678; Twombly, 550 U.S. at 555. Since this claim is not 19 cognizable, it is recommended that the Court dismiss it. See Forte v. Hughes, No. 1:13-CV20 01980-LJO-SMS, 2014 WL 2930834, at *13 (E.D. Cal. June 27, 2014). 21 D. 42 U.S.C. § 1983: Violation of the Fourteenth Amendment 22 Plaintiffs allege that Defendants “deprived Plaintiffs of his [sic] rights, privileges and/or 23 immunities secured by the United States Constitution, which include but are not limited to, 24 violation of the . . . Fourteenth Amendment[] of the United States Constitution, by falsely arresting 25 Plaintiffs, by depriving Plaintiffs of his [sic] physical liberty and property, by causing Plaintiffs 26 emotional injury and economic loss by falsely arresting him [sic], by falsely and maliciously 27 prosecuting criminal actions, by unreasonably seizing his person or property, and by depriving 28 Plaintiffs of his [sic] civil rights.” (Am. Compl. ¶ 64.) The crux of Plaintiffs’ § 1983 claim is that 19 1 they were arrested and prosecuted without probable cause. Not only does this claim fail because 2 its allegations “amount to nothing more than a ‘formulaic recitation of the elements’” of the claim, 3 Iqbal, 556 U.S. at 681, it also is not cognizable under the Fourteenth Amendment. 4 To the extent Plaintiffs base the claim upon an alleged deprivation of their Fourteenth 5 Amendment rights to substantive due process, the Supreme Court has said that “where a particular 6 Amendment ‘provides an explicit textual source of constitutional protection’ against a particular 7 sort of government behavior, ‘that Amendment, not the more generalized notion of “substantive 8 due process,” must be the guide for analyzing these claims.’” 6 Albright v. Oliver, 510 U.S. 266, 9 274, (1994) (plurality) (quoting Graham v. Connor, 490 U.S. 386, 395, (1989)). When a plaintiff 10 asserts the right to be free from arrest and prosecution without probable cause, “substantive due 11 process, with its ‘scarce and open-ended’ ‘guideposts,’ can afford him no relief.” Id. at 275 12 (plurality) (internal citation omitted). The Ninth Circuit in Awabdy confirmed that “[t]he principle 13 that Albright establishes is that no substantive due process right exists under the Fourteenth 14 Amendment to be free from prosecution without probable cause.” Awabdy, 368 F.3d at 1069 15 (citing Albright, 510 U.S. at 268, 271 (plurality) (further citations omitted)). Thus, Plaintiffs’ 16 § 1983 claim based on deprivation of their Fourteenth Amendment rights to substantive due 17 process is subject to dismissal. See Hazlett v. Dean, No. CIV 2:12–01782 WBS DAD, 2013 WL 18 1749924, at *2 (E.D. Cal. Apr. 23, 2013); Chaffee v. Chiu, No. C–11–05118–YGR, 2012 WL 19 1110012, at *6 (N.D. Cal. Apr. 2, 2012) (dismissing “generalized substantive due process claims 20 under the Fourteenth Amendment” where the First and Fourth Amendments were “explicit textual 21 sources of constitutional protection in this action”). 22 E. State Law Claims 23 Pursuant to 28 U.S.C. § 1367(a), in any civil action in which the district court has original 24 jurisdiction, the district court “shall have supplemental jurisdiction over all other claims in the 25 action within such original jurisdiction that they form part of the same case or controversy under 26 27 28 6 As a preliminary matter, the Court notes that Plaintiffs’ § 1983 claim alleges violations of both the Fourth and Fourteenth Amendments. (See Am. Compl. ¶ 69.) In Section IV.B, the Court recommended dismissal of Plaintiffs’ § 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 Article III,” except as provided in subsections (b) and (c). The Supreme Court has cautioned that 2 “if the federal claims are dismissed before trial, . . . the state claims should be dismissed as well.” 3 United Mine Workers of America v. Gibbs, 383 U.S. 715, 726 (1966). See also City of Chicago v. 4 Int’l. College of Surgeons, 522 U.S. 156, 172 (1997) (“that the terms of § 1367(a) authorize the 5 district courts to exercise supplemental jurisdiction over state law claims . . . does not mean that 6 the jurisdiction must be exercised in all cases”). 7 Although the Court may exercise supplemental jurisdiction over state law claims, Plaintiffs 8 must first have a cognizable claim for relief under federal law. See 28 U.S.C. § 1367. Here, 9 Plaintiffs fail to state a claim for relief on their federal claims under 42 U.S.C. § 1983. The Court 10 generally declines to exercise supplemental jurisdiction over state law claims in the absence of 11 viable federal claims and this case presents no exception. 28 U.S.C. § 1367(c)(3); Parra v. 12 PacifiCare of Ariz., Inc., 715 F.3d 1146, 1156 (9th Cir. 2013); Herman Family Revocable Trust v. 13 Teddy Bear, 254 F.3d 802, 805 (9th Cir. 2001); see also Watison v. Carter, 668 F.3d 1108, 1117 14 (9th Cir. 2012) (if court declines to exercise supplemental jurisdiction over state law claims once 15 court dismissed federal claims, then the court should dismiss the state law claims without 16 prejudice). Therefore, the undersigned recommends that the Court not exercise jurisdiction over 17 Plaintiffs’ state law claims. See, e.g., Jones, 2017 WL 3394121, at *6 (declining to exercise 18 jurisdiction in a similar case where the only cause of action brought under federal law was 19 dismissed). 20 21 V. CONCLUSION AND RECOMMENDATIONS While leave to amend must be freely given, the Court is not required to permit futile 22 amendments. See DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th Cir. 1992); Reddy v. 23 Litton Indus., Inc., 912 F.2d 291, 296–97 (9th Cir. 1990); Rutman Wine Co. v. E. & J. Gallo 24 Winery, 829 F.2d 729, 738 (9th Cir. 1987); Klamath–Lake Pharm. Ass’n v. Klamath Med. Serv. 25 Bureau, 701 F.2d 1276, 1293 (9th Cir. 1983). Here, Plaintiffs have failed to cure the deficiencies 26 outlined in the Court’s earlier order and, based upon the record and the facts set forth in pleadings 27 filed by Plaintiffs, as well as this Court’s recent dismissal of an action based on identical claims 28 involving the same events and the same defendants, Jones, 2017 WL 3394121, it does not appear 21 1 the deficiencies of the amended complaint can be cured by amendment. Thus, it appears that 2 granting Plaintiffs further leave to amend would be futile. Lopez, 203 F.3d at 1128 (dismissal is 3 proper where it is obvious the plaintiff cannot prevail on the facts alleged and that an opportunity 4 to amend would be futile). 5 Based on the foregoing, it is HEREBY RECOMMENDED that: 6 1. 7 Plaintiffs’ amended complaint be DISMISSED without leave to amend for failure to state a cognizable federal claim; 8 2. 9 The Court DECLINE to exercise supplemental jurisdiction over Plaintiffs’ state law claims; and 10 3. 11 The Court further DIRECTS the Clerk to send a copy of this order to Plaintiffs at their The case be CLOSED. 12 respective addresses listed on the docket for this matter. 13 These findings and recommendations are submitted to the district judge assigned to this 14 action, pursuant to 28 U.S.C. § 636(b)(1)(B) and this Court’s Local Rule 304. Within twenty-one 15 (21) days of service of this recommendation, any party may file written objections to these 16 findings and recommendations with the Court and serve a copy on all parties. Such a document 17 should be captioned “Objections to Magistrate Judge’s Findings and Recommendations.” The 18 district judge will review the magistrate judge’s findings and recommendations pursuant to 28 19 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections within the specified 20 time may waive the right to appeal the district judge’s order. Wilkerson v. Wheeler, 772 F.3d 834, 21 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 22 23 IT IS SO ORDERED. 24 Dated: 25 September 19, 2017 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 26 27 28 22 .

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