Davis v. San Diego District Attorney et al

Filing 95

ORDER Granting 76 Motion to Dismiss; Dismissing Complaint; Denying 77 Motion for Summary Judgment; Denying 81 Motion for Declaratory Judgment; Denying 94 Motion Ex parte Motion for Joinder. The Clerk SHALL close the file. Signed by Judge Janis L. Sammartino on 9/4/2018. (All non-registered users served via U.S. Mail Service)(acc)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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GAVIN B. DAVIS,

Case No.: 17-CV-654 JLS (BGS)
Plaintiff,

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ORDER: (1) GRANTING MOTION
TO DISMISS; (2) DISMISSING
COMPLAINT; (3) DENYING
MOTION FOR SUMMARY
JUDGMENT; (4) DENYING
MOTION FOR DECLARATORY
JUDGMENT; AND (5) DENYING EX
PARTE MOTION FOR JOINDER

v.
SAN DIEGO DISTRICT ATTORNEY;
MR. LEONARD TRINH; SAN DIEGO
POLICE DEPARTMENT; JOHN DOES,

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Defendants.

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(ECF Nos. 76, 77, 81, 94)

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Presently before the Court are Defendants Leonard Trinh and San Diego District

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Attorney’s Motion to Dismiss Third Amended Complaint, (“MTD,” ECF No. 76). Also

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before the Court are Plaintiff Gavin B. Davis’s Response in Opposition, (“Opp’n,” ECF

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No. 84), and Defendants’ Reply in Support of, (“Reply,” ECF No. 85), the Motion to

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Dismiss.1 Additionally, Plaintiff filed a Motion for Summary Judgment, (ECF No. 77), to

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Plaintiff filed a sur-reply in response to Defendants’ Reply, (ECF No. 87). The Local Rules do not allow
for sur-replies. “District courts have the discretion to either permit or preclude the filing of a sur-reply.”
Estate of Alvarado v. Tackett, No. 13-CV-1202 W (JMA), 2018 WL 1141502, at *1 (S.D. Cal. Mar. 2,
2018) (citing Johnson v. Wennes, No. 08-CV-1798-L (JMA), 2009 WL 1161620, at *2 (S.D. Cal. Apr.
28, 2009)). Courts generally exercise discretion when a valid reason exists, such as where the movant
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which Defendants filed a Response in Opposition, (ECF No. 79), and Plaintiff filed a

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Reply, (ECF No. 83). The Court vacated the hearing on both motions and took them under

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submission without oral argument pursuant to Civil Local Rule 7.1(d)(1). (ECF No. 88.)

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Finally, Plaintiff filed a motion requesting the Court judicially notice certain facts and

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further requesting declaratory relief, (ECF No. 81), as well as an ex parte “Motion for

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FRCP 19 Compulsory Joinder,” (ECF No. 94). Having considered the parties’ arguments

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and the law, the Court rules as follows.

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BACKGROUND

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This case arises out of allegations that Defendant District Attorney Trinh “is

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Vindictively and Maliciously Prosecuting the Plaintiff” in a state criminal case currently

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pending before the Superior Court of San Diego: State of California v. Gavin B. Davis, No.

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SCD266332. (Third Am. Compl. (“TAC”), ECF No. 72, ¶ 10.) Plaintiff further alleges

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that Defendant Trinh has attempted to remand Plaintiff to the San Diego County Sheriff’s

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Department on an unreasonable and excessive bail. (Id.)

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In March 2016, the San Diego police department arrested Plaintiff for reasons not

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disclosed by Plaintiff. (Id. ¶ 13.) He does state, however, that he posted bail and Defendant

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San Diego District Attorney’s Office brought a case against him—State v. Davis, No.

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SCD266332. (Id.) Then, in June 2016, Plaintiff was arrested again by the San Diego police

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for perjury and fraud; Plaintiff was released on $50,000 bail. (Id. ¶ 14.) Plaintiff alleges

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that a case was opened against him with respect to these charges as case number

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SCD267655, which was later consolidated with case number SCD266332. (Id.) Plaintiff

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states that the charges for the June 2016 arrest were subsequently dropped in August 2017.

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(Id.)

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On October 5, 2016, Defendant Trinh moved the state trial court to remand Plaintiff

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to custody without bail, which the court granted. (Id. ¶ 15.) On October 18, 2016, the San

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raises new arguments in the Reply brief. Id. (citation omitted). Here, Defendants do not advance any new
arguments in their Reply brief and the Court declines to exercise its discretion to consider Plaintiff’s surreply. Accordingly, the Court STRIKES the document from the record, (ECF No. 87).
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Diego Sheriff’s Department transferred Plaintiff from George Baily Donovan Facility to

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San Diego Central Jail. (Id. ¶ 19.) On October 19, 2016, Plaintiff alleges that he was given

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a “1368 Examination,”2 which Plaintiff says he passed “with flying colors.” (Id. ¶¶ 20–

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21.) On November 2, 2016, Defendant Trinh requested bail in the amount of $200,000,

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but Plaintiff states that the state trial court set bail at $10,000. (Id. ¶ 22.) In November

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2016, Plaintiff retained counsel for his two criminal cases, (id. ¶ 24), but his counsel

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withdrew on January 27, 2017, citing a conflict of interest, (id. ¶ 25). Plaintiff alleges that

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at the same January 27th hearing, Mr. Trinh requested Plaintiff be remanded to custody

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without bail, which the trial court denied. (Id. ¶ 26.)

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Plaintiff did not attend his next court appearance on April 17, 2017, which resulted

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in the trial court issuing two bench warrants and increasing Plaintiff’s bail, at Defendant

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Trinh’s request, from $10,000 to $50,000 in No. SCD266332 and from $50,000 to

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$100,000 in No. SCD26765. (Id. ¶ 28.) Plaintiff traveled to Vermont in April 2017 and

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the U.S. Marshal Service arrested him there in May 2017. (Id. ¶ 30.) Plaintiff states that

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he posted bail in Vermont, (id.), as well as posting the $50,000 bond in No. SCD266332

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and retaining new counsel, (id. ¶ 31). Plaintiff appeared before the trial court in California

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on July 7, 2017, where the court ordered Plaintiff to post a $100,000 bond or be remanded

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to custody the same day. (Id. ¶ 32.) Plaintiff states he was able to post the $100,000 bond.

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(Id.)

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In August 2017, the San Diego District Attorney’s Office notified Plaintiff’s new

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counsel that Plaintiff was to be arraigned on a new criminal charge for failing to appear at

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the April 2017 hearing. (Id. ¶ 34.) Plaintiff appeared for the new criminal charge and was

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released on his own recognizance. (Id.) Plaintiff’s next hearing was October 10, 2017,

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and Plaintiff alleges that he appeared for the morning court session, but was unable to

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attend the afternoon session having been admitted to the University of California, San

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The Court assumes a 1368 examination refers to California Penal Code § 1368, which generally allows
the court to suspend criminal proceedings if the court doubts the mental competence of the defendant.
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Diego’s Emergency Department. (Id. ¶ 37.) As a result, Defendant Trinh requested bail

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be increased to $1,000,000. (Id.) Plaintiff offered to surrender to the District Attorney’s

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office several times throughout October 2017. (Id. ¶ 39.) Instead, Plaintiff alleges he was

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arrested on November 1, 2017, (id.), and remained in custody until April 23, 2018, (id.

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¶ 40). While in custody, Plaintiff alleges he was not allowed access to the law library and

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was denied access to his attorney. (Id.) Plaintiff entered a plea agreement and was released

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on his own recognizance on April 23, 2018. (Id. ¶¶ 41–42.) Plaintiff filed his Third

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Amended Complaint on May 15, 2018.

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Plaintiff brings six claims. First, Plaintiff brings a claim under 42 U.S.C. § 1983

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against both Defendant Trinh and his employer the San Diego District Attorney’s office

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for violation of Plaintiff’s Fourth Amendment rights. (Id. ¶ 11.) Second, Plaintiff brings

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§ 1983 claim against Defendant Trinh for violating his Eighth Amendment rights due to

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excessive bail as well as an alleged beating Plaintiff suffered while in detention on October

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20, 2016. (Id.) Third, Plaintiff brings the same claims against Defendant San Diego

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District Attorney’s office. Fourth, Plaintiff alleges a § 1983 claim for deprivation of his

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Fifth and Fourteenth Amendment rights based on Defendant Trinh’s denial of his access to

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the courts. (Id.) Plaintiff’s fifth cause of action is for the same allegations against

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Defendant San Diego District Attorney’s office. (Id.) Plaintiff’s sixth cause of action is

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against both Defendants for § 1983 malicious prosecution.

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This lawsuit has been lingering in this Court for more than a year. Plaintiff filed his

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original forty-four-page Complaint in March 2017. (ECF No. 1.) In response, Defendants

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San Diego District Attorney and Leonard Trinh filed a motion to dismiss, (ECF No. 5), as

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did Defendant City of San Diego (erroneously sued as San Diego Police Department),

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(ECF No. 6). Plaintiff filed a motion for preliminary injunction. (ECF No. 9.) The Court

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denied the preliminary injunction, (ECF No. 19), which Plaintiff appealed to the Ninth

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Circuit, (ECF No. 22). In the interim, this Court granted Defendants’ motions to dismiss

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and dismissed Plaintiff’s complaint without prejudice. Plaintiff filed a First Amended

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Complaint, (ECF No. 32), and then filed a Second Amended Complaint, (ECF No. 37), but
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labeled the latter as his “First Amended Complaint.” The Ninth Circuit affirmed this

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Court’s Order denying preliminary injunctive relief. (ECF No. 64.) The Court granted

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Defendants’ motion and dismissed Plaintiff’s Second Amended Complaint. Plaintiff filed

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his Third Amended Complaint, which only named Defendants Trinh and San Diego

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District Attorney’s Office. Defendants responded with the current Motion to Dismiss

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based under Rules 12(b)(1) and 12(b)(6).

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LEGAL STANDARD

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Federal Rule of Civil Procedure 12(b)(6) permits a party to raise by motion the

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defense that the complaint “fail[s] to state a claim upon which relief can be granted,”

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generally referred to as a motion to dismiss. The Court evaluates whether a complaint

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states a cognizable legal theory and sufficient facts in light of Federal Rule of Civil

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Procedure 8(a), which requires a “short and plain statement of the claim showing that the

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pleader is entitled to relief.”

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allegations,’ . . . it [does] demand more than an unadorned, the-defendant-unlawfully-

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harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.

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Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In other words, “a plaintiff’s obligation to

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provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and

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conclusions, and a formulaic recitation of the elements of a cause of action will not do.”

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Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). A

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complaint will not suffice “if it tenders ‘naked assertion[s]’ devoid of ‘further factual

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enhancement.’” Iqbal, 556 U.S. at 677 (citing Twombly, 550 U.S. at 557).

Although Rule 8 “does not require ‘detailed factual

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In order to survive a motion to dismiss, “a complaint must contain sufficient factual

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matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. (quoting

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Twombly, 550 U.S. at 570); see also Fed. R. Civ. P. 12(b)(6). A claim is facially plausible

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when the facts pled “allow the court to draw the reasonable inference that the defendant is

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liable for the misconduct alleged.” Iqbal, 556 U.S. at 677 (citing Twombly, 550 U.S. at

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556). That is not to say that the claim must be probable, but there must be “more than a

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sheer possibility that a defendant has acted unlawfully.” Id. Facts “‘merely consistent
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with’ a defendant’s liability” fall short of a plausible entitlement to relief. Id. (quoting

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Twombly, 550 U.S. at 557). Further, the Court need not accept as true “legal conclusions”

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contained in the complaint. Id. This review requires context-specific analysis involving

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the Court’s “judicial experience and common sense.”

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“[W]here the well-pleaded facts do not permit the court to infer more than the mere

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possibility of misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the

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pleader is entitled to relief.’” Id.

Id. at 678 (citation omitted).

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Additionally, while the court “ha[s] an obligation where the petitioner is pro se,

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particularly in civil rights cases, to construe the pleadings liberally and to afford the

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petitioner the benefit of any doubt,” Hebbe v. Pliler, 627 F.3d 338, 342 & n.7 (9th Cir.

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2010) (citing Bretz v. Kelman, 773 F.2d 1026, 1027 n.1 (9th Cir. 1985)), it may not “supply

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essential elements of claims that were not initially pled.” Ivey v. Bd. of Regents of the Univ.

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of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

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ANALYSIS

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Defendants move to dismiss Plaintiff’s complaint on four grounds. They argue

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Plaintiff’s claims are barred by both absolute immunity and the Younger abstention

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doctrine. (See MTD 4–5.)3 Defendants further contend that to the extent Plaintiff’s

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allegations are not intimately associated with the judicial phase of the criminal process, he

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fails to meet the Rule 8 pleading requirement. (Id. at 6–7.) Finally, they argue Plaintiff is

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abusing the legal process. (Id. at 7.)

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I.

Absolute Immunity for Defendant Trinh

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Defendants contend that all of Plaintiff’s claims arise from the prosecution of his

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criminal charges and both state and federal law grant prosecutors immunity from civil suits

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arising from criminal prosecutions. (Id. at 4 (citing Imbler v. Pachtman, 424 U.S. 409,

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430–31 (1976); and Cal. Gov. Code § 821.6).) Defendants point out that a criminal

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Pin citations to docketed material refer to the CM/ECF page numbers electronically stamped at the top
of each page.
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defendant who feels aggrieved by a prosecutor’s conduct in a criminal prosecution must

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seek recourse in the criminal proceedings, not a collateral civil lawsuit.

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Plaintiff responds that cases concerning a Fourth Amendment false imprisonment

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claim, brought under 42 U.S.C. § 1983, are immediately actionable. (Opp’n 6 (citing

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Wallace v. Kato, 549 U.S. 384, 389–93 (2007)).)

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State prosecutors, like Defendant Trinh, are entitled to absolute prosecutorial

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immunity for acts taken in their official capacity. See Van de Kamp v. Goldstein, 555 U.S.

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335, 341 (2009); Imbler, 424 U.S. at 430–31 (holding prosecutors absolutely immune from

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civil suits for damages under § 1983 for initiating criminal prosecutions and presenting

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cases). “[A]bsolute immunity may not apply when a prosecutor is not acting as ‘an officer

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of the court,’ but is instead engaged in other tasks, say investigative or administrative

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tasks.” Van de Kamp, 555 U.S. at 342 (quoting Imbler, 424 U.S. at 431 n.33). The burden

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of showing absolute immunity falls on the official seeking to assert it and the Supreme

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Court has emphasized that courts are “quite sparing” in recognition of absolute immunity.

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Burns v. Reed, 500 U.S. 478, 486–87 (1991) (quoting Forrester v. White, 484 U.S. 219,

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224 (1988)).

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Courts take a functional approach to determining whether immunity applies; thus,

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the Supreme Court has applied absolute immunity where a prosecutor initiates a judicial

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proceeding or appears in court to present evidence for a search warrant. Van de Kamp, 555

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U.S. at 343 (citations omitted). Conversely, absolute immunity does not apply when a

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prosecutor gives advice to police during a criminal investigation, when a prosecutor makes

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statements to the press, or when a prosecutor acts as a complaining witness in support of a

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warrant. Id. (citations omitted).

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The decisions taken by Defendant Trinh in Plaintiff’s state criminal cases all fall

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within the traditional scope of absolute immunity. Actions such as requesting a criminal

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defendant be remanded to custody, adding or dropping criminal charges, and requesting

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significant bail amounts are all prosecutorial decisions and not investigative or

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administrative. See Ismail v. Cnty. of Orange, 917 F. Supp. 2d 1060, 1068 (C.D. Cal.
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2012), aff’d 676 Fed. App’x 690, 691 (9th Cir. 2017). These actions encompass every

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claim Plaintiff alleges against Defendant Trinh. (See TAC ¶ 11 (alleging the following

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against Defendants: attempting to remand Plaintiff to custody, requesting excessive bail

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amounts, placing Plaintiff in custody, and engaging in malicious prosecution).)

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Plaintiff’s argument to the contrary is unavailing. Wallace v. Kato, 549 U.S. at 387,

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dealt with whether a petitioner’s § 1983 suit was time barred, not with absolute immunity.

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Absolute immunity is, by definition, absolute and is not limited by the type of § 1983 suit.

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See Imbler, 424 U.S. at 429 (discussing remedies for prosecutorial misconduct other than

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§ 1983). Accordingly, the Court GRANTS the Motion to Dismiss and DISMISSES

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WITH PREJUDICE all claims against Defendant Trinh.

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II.

Supervisory Absolute Immunity

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In Van de Kamp v. Goldstein, 555 U.S. at 340, the question before the Supreme

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Court was whether absolute immunity applied to allegations against the supervisors of trial

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prosecutors for failure to “adequately [] train and [] supervise” their subordinate

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prosecutors. The plaintiff in the case did not argue the supervisory prosecutors themselves

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erred in the criminal trial; instead, he argued the supervisors were liable because their

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“general methods of supervision” caused a “consequent error by an individual prosecutor”

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at trial. Id. at 346. The Supreme Court held that absolute immunity barred the plaintiff’s

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claims against the supervisory prosecutors. Id. at 344–46.

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In Torres v. Goddard, 793 F.3d 1046, 1049 (9th Cir. 2015), the Ninth Circuit dealt

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with a case where the Arizona Attorney General’s office issued seizure warrants for money

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wire transfers that enabled human trafficking over the U.S.-Mexico border. Specifically,

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the court addressed an allegation that the Attorney General ratified seizure warrants and

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whether the Attorney General had absolute immunity for his subordinate’s actions. The

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plaintiffs in Torres argued that their claims arose from the Attorney General’s acquiescence

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and ratification of his subordinate’s procurement of particular seizure warrants. Id. at 1058.

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The court applied Van de Kamp’s absolute immunity rule to the Attorney General because

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there was
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no functional difference between a civil forfeiture prosecutor’s
preparation and application for seizure warrants, and his
supervisor’s decision to allow him to engage in those activities.
A supervisor’s decision to permit a subordinate prosecutor to
prepare and apply for seizure warrants is an “act[] undertaken by
[the supervisor] in preparing for the initiation of judicial
proceedings,” and “occur[s] in the course of [the supervisor’s]
role as an advocate for the [s]tate.”
Id. (alterations in original) (quoting Kalina v. Fletcher, 522 U.S. 118, 126 (1997)).

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Here, Plaintiff’s TAC does not clearly distinguish between the actions taken by

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Defendant Trinh and those taken by San Diego District Attorney’s Office. He alleges, for

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example, that he is bringing a § 1983 claim “related to Defendant Leonard [Trinh]’s clear

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pattern of attempting to remand the Plaintiff (defendant therein) to custody, pre-trial, in his

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prosecution (SCD2666332) of the Plaintiff, on behalf of Defendant SDDA.” (TAC ¶ 11.)

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Plaintiff also alleges that after his March 2016 arrest, “Defendant SDDA brought case no:

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SCD266332, [State of California] v. Gavin B. Davis, against the Plaintiff.” (Id. ¶ 13

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(alteration in original).) Later in the complaint, Plaintiff alleges that after his May 2017

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arrest in Vermont, “Defendant Leonard [Trinh] and Defendant SDDA aggressively sought

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extradition.” (Id. ¶ 30.) In August 2017, Plaintiff alleges that the San Diego District

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Attorney’s Office notified Plaintiff’s counsel that he would be arraigned on a new criminal

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charge. (Id. ¶ 34.) When Plaintiff appeared for arraignment, “Defendant [San Diego

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District Attorney], with a reasonable attorney of its employ at the arraignment, agreed to

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grant the Plaintiff (defendant therein), release on his Own Recognizance.” (Id.)

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At their core, Plaintiff’s allegations against the San Diego District Attorney’s Office

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are essentially a placeholder for actions by prosecutors other than Defendant Trinh.

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Whether those attorneys are fellow trial attorneys who appeared in lieu of Defendant Trinh

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or are supervisory attorneys who directed or ratified Trinh’s trial related decisions, the

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outcome is the same. The foregoing allegations demonstrate that all actions and decisions

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by the District Attorney’s office related to the initiation of judicial proceedings or occurred

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in the course of a supervisor’s role as an advocate for the state.4 See Torres, 793 F.3d at

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1058. Absolute immunity applies here.

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“Indeed, if the rule were otherwise, a plaintiff could just ‘restyle a complaint

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charging a trial failure so that it becomes a complaint charging a failure of training or

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supervision’ and thereby ‘eviscerate Imbler.’” Id. (quoting Van de Kamp, 555 U.S. at 347).

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Accordingly, the Court finds Plaintiff’s claims against Defendant Trinh and the San Diego

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District Attorney’s Office are barred by absolute immunity. Because absolute immunity

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bars the entirety of Plaintiff’s claims, the Court need not reach Defendants’ remaining

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arguments.

The Court GRANTS Defendants’ Motion and DISMISSES WITH

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PREJUDICE Plaintiff’s claims with regard to the San Diego District Attorney’s Office.

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III.

Plaintiff’s Pending Motions

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Plaintiff has filed several motions that the Court briefly addresses. First, Plaintiff

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filed a motion for summary judgment, (ECF No. 77). Defendants filed an Opposition brief,

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(ECF No. 79), in which they argue, inter alia, that Plaintiff’s motion cannot succeed

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because he is not entitled for judgment as a matter of law, (id. at 3 (citing Fed. R. Civ. P.

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56(a))). The Court agrees; Plaintiff’s claims are barred by absolute immunity and he cannot

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Even if the Court were to construe Plaintiff’s allegations as a Monell theory of liability, see Monell v.
Dep’t of Soc. Servs. of the City of N.Y., 436 U.S. 658 (1978), they cannot succeed. “An agency or
department of a municipal entity is not a proper defendant under § 1983.” Boyd v. City of Oceanside
Police Dep’t, No. 11-CV-3039 LAB WMC, 2012 WL 993402, at *4 (S.D. Cal. Mar. 23, 2012) (citing
Vance v. Cnty. of Santa Clara, 928 F. Supp. 993, 996 (N.D. Cal. 1996)). Plaintiff cannot maintain a
section 1983 suit against the San Diego District Attorney’s Office; he could only maintain a § 1983 claim
against the County of San Diego. To plead municipality liability, Plaintiff must allege: (1) he was deprived
of a constitutional right; (2) the municipality had a policy; (3) the policy amounted to deliberate
indifference to plaintiff's constitutional right; and (4) the policy was the “moving force behind the
constitutional violation.” Van Ort v. Estate of Stanewich, 92 F.3d 831, 835 (9th Cir.1996). Here, Plaintiff
has not alleged any policy; instead, he alleges that the San Diego District Attorney’s Office made
prosecutorial decisions in his case, which is why the Court applies Van de Kamp in the first instance.
A separate reason for absolute immunity also applies in this case. When a county district attorney
acts in her prosecutorial capacity then she acts on behalf of the State. See Weiner v. San Diego Cnty., 210
F.3d 1025, 1030 (9th Cir. 2000). And, therefore, California district attorneys possess Eleventh
Amendment immunity when “acting in [their] prosecutorial capacity.” Del Campo v. Kennedy, 517 F.3d
1070, 1073 (9th Cir. 2008) (alteration in original) (quoting Weiner, 210 F.3d at 1028; and citing Pitts v.
Cnty. of Kern, 17 Cal. 4th 340 (1998)).
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prevail as a matter of law. The Court DENIES Plaintiff’s motion for summary judgment,

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(ECF No. 77). Second, Plaintiff filed an ex parte motion for FRCP 201 Judicial Notice

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and FRCP 57 Declaratory Decree, (ECF No. 81). Plaintiff requests declaratory relief in

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addition to his requested relief in his complaint. However, Plaintiff cannot maintain a civil

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lawsuit against Defendants and the Court DENIES his ex parte motion, (ECF No. 81).

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Third, Plaintiff filed an ex parte motion for FRCP 19 Compulsory Joinder of San

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Diego City Attorney, (ECF No. 94). Plaintiff requests to join as new party the San Diego

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Office of the City Attorney under Federal Rule of Civil Procedure 19. (Id. at 2.) Plaintiff

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states that a non-party John Gregory Unruh,5 his former father-in-law, is providing false or

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misleading statements to the City Attorney’s Office, which have resulted in further criminal

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proceedings initiated against him. (See id. at 3 (“Defendant Greg, through the San Diego

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City Attorney, has now brought a Ca [Penal Code] § 166a charge against the

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Plaintiff . . . .”).) Because absolute immunity bars maintenance of a suit in its entirety,

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Plaintiff cannot join a party to claims against Defendants. If the Court were to construe

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Plaintiff’s motion as a request for leave to amend, such an amendment would be futile.

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The City Attorney is functionally performing prosecutorial functions. Adding a defendant

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who is performing prosecutorial functions would be barred under absolute immunity. See

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King v. Nat’l Futures Ass’n, 189 F.3d 473, 1999 WL 510945, at *1 (9th Cir. 1999)

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(unpublished decision) (“In any event, his proposed addition of [a National Future

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Association] attorney as a defendant would have been futile because officials performing

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quasi-judicial functions are entitled to absolute immunity.” (citing Fry v. Melaragno, 939

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F.2d 832, 836 (9th Cir. 1991))); Shapiro v. City of Carlsbad, No. 11-cv-1080 DMS (MDD),

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2011 WL 6099565, at *2 (S.D. Cal. Dec. 7, 2011) (finding amendment would be futile to

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Plaintiff’s motion describes Mr. Unruh as a defendant. (See generally ECF No. 94.) Mr. Unruh was a
defendant in Plaintiff’s prior complaints, but was removed from his operative third amended complaint.
Therefore, he is not a named defendant. See Fed. R. Civ. P. 10(a) (“The title of the complaint must name
all the parties . . . .”). Claims that are voluntary dismissed are considered waived if not repled in a
subsequent complaint. See Lacey v. Maricopa Cnty., 693 F.3d 896, 928 (9th Cir. 2012) (en banc). By
failing to name Mr. Unruh in his third amended complaint, Plaintiff waived his claim against him.
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add individual defendants where they would be absolutely immune from malicious

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prosecution claims (citing Cal. Gov’t Code §821.6; and Asgari v. City of Los Angeles, 15

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Cal. 4th 744, 753 n.7 (1997))). Accordingly, the Court DENIES Plaintiff’s ex parte

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motion, (ECF No. 91).

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CONCLUSION

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For the reasons stated above, the Court GRANTS Defendants’ Motion to Dismiss,

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(ECF No. 76). Accordingly, the Court DISMISSES WITH PREJUDICE Plaintiff’s

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Third Amended Complaint, (ECF No. 72). Because Defendants have absolute immunity,

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further amendment of Plaintiff’s claims would be futile. See Cahill v. Liberty Mut. Ins.

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Co., 80 F.3d 336, 339 (9th Cir. 1996) (noting denial of leave to amend is not an abuse of

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discretion where further amendment would be futile). Additionally, the Court DENIES

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Plaintiff’s pending motions, (ECF Nos. 77, 81, 94). The Clerk SHALL close the file.

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IT IS SO ORDERED.
Dated: September 4, 2018

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28
12
17-CV-654 JLS (BGS)