YVONNE GONZALEZ ROGERS, District Judge.
Pro se plaintiff Gerald Len Cooley brings this civil rights action against defendants the City of Walnut Creek (the "City"), City of Walnut Creek Police Detective Greg Leonard, unnamed Walnut Creek detectives ("Detective Does 1-10"), the County of Contra Costa (the "County"), deputy district attorney Alison Chandler ("DDA Chandler"), and district attorney Mark Peterson ("DA Peterson") pursuant to 42 U.S.C. section 1983 ("Section 1983") for violation of his constitutional rights. (See generally Fourth Amended Civil Rights Complaint ("4AC"), Dkt. No. 52.)
Now before the Court are two motions to dismiss the 4AC pursuant to Federal Rule of Civil Procedure 12(b)(6), namely one filed by the County, (see Dkt. No. 53 ("County's MTD")), and one filed by the City (see Dkt. No. 56 ("City's MTD")).
Plaintiff filed the initial complaint in this action on February 1, 2018. (Dkt. No. 1.) On March 9, 2018, he filed an amended complaint. (Dkt. No. 8.) The case was subsequently reassigned to the undersigned on March 21, 2018, and plaintiff thereafter filed a motion for leave to file a second amended complaint, which this Court granted. (Dkt. Nos. 12, 13, 15.)
On March 29, 2018, DDA Chandler and the County filed a motion to dismiss, (Dkt. No. 18), and plaintiff filed a motion for leave to file a third amended complaint ("3AC") two weeks later. (Dkt. No. 23.) On April 23, 2018, the City filed a motion to dismiss the 3AC and for a more definite statement. (Dkt. No. 25.) The following day, the Court granted plaintiff's motion for leave to file the 3AC and, in light of the City's motion and because the 3AC tracked the prior complaint with the exception of two added paragraphs regarding DA Peterson, the Court allowed defendants to file supplements to their pending motions, rather than entirely new motions to dismiss. (Dkt. No. 26.)
While the two motions to dismiss were pending, plaintiff filed a motion for leave to file a fourth amended complaint, with a proposed complaint attached thereto. (Dkt. No. 43.) On December 4, 2018, the Court granted both motions to dismiss the 3AC, dismissing certain claims without leave to amend and the remaining claims with leave to amend. (Dkt. No. 45 ("MTD Order").) In so doing, the Court addressed the proposed substantive amendments included in plaintiff's proposed fourth amended complaint in order to "provide further guidance to plaintiff as he prepares his next amended complaint and for the sake of efficiency." (Id. at 1. n.1.) Specifically, the Court ruled that plaintiff's Section 1983 malicious prosecution claim was: (i) dismissed without leave to amend to the extent it arose from plaintiff's substantive due process rights under the Fourteenth Amendment; (ii) dismissed without leave to amend as asserted against DDA Chandler; and (iii) dismissed with leave to amend as asserted against Walnut Creek Police Department ("WCPD") Officer Does 1-10. The Court also ruled that plaintiff's section 1983 Brady claim as asserted against DA Peterson was dismissed without leave to amend, plaintiff's Monell claim as asserted against the County was dismissed with leave to amend, and plaintiff's Monell claim as asserted against the City was dismissed with leave to amend. The Court gave plaintiff until January 15, 2019 to file an amended complaint.
Rather than file an amended complaint, plaintiff filed a notice of appeal on December 28, 2018. (Dkt. No. 46.) On January 24, 2019, the Ninth Circuit dismissed the appeal for lack of jurisdiction because this Court's order challenged in the appeal was not final or appealable. (Dkt. No. 50.) In light of the Ninth Circuit's order, this Court extended plaintiff's deadline to file a fourth amended complaint to February 5, 2019. (Dkt. No. 51.)
On February 5, 2019, plaintiff filed the operative 4AC. The 4AC asserts various Section 1983 claims, which are discussed in further detail below. The instant motions followed.
The following facts are based on the allegations of plaintiff's 4AC:
On August 27, 2016, Courtney Brown was murdered outside a bar and grill in Walnut Creek named Crogan's. (4AC ¶ 5.) Detective Leonard and Detective Does 1-10 were assigned to find the murderer. (Id.) On or around August 29, 2016, Detective Leonard and Detective Does 1-10 served an arrest and search warrant on Larry Griffin, plaintiff's cousin, for the murder. (Id.) They obtained Griffin's cell phone records and found unanswered calls from plaintiff "prior to, during[,] and after the murder and cellphone pings that provided the approximate location of the cellphones during the relevant times." (Id.)
Detective Leonard and Detective Does 1-10 called plaintiff and asked to speak with him at the police station. (Id. ¶ 6.) Plaintiff decided not to go to the police station since he could not afford an attorney. (Id. ¶ 7.) Detective Leonard and Detective Does 1-10 "obtained an arrest and search warrant and compared cellphone pings from Larry Griffin and [p]laintiff's cellphones[,] which revealed that [p]laintiff did not arrive or leave with Larry Griffin on the night of the murder." (Id.)
On October 5, 2016, Detective Leonard and Detective Does 1-10 arrested plaintiff for being an accessory to murder after the fact in violation of California Penal Code section 32 and took him to the police station for questioning. (Id. ¶¶ 1, 8.) Detective Leonard and Detective Does 1-10 told plaintiff that they did not believe he was directly involved with the murder but that they believed he had "knowledge concerning the facts of the murder and that he could [provide] the identity of other unidentified individuals that may have been involved with the murder." (Id. ¶ 9.) Plaintiff alleges that:
(Id. ¶ 10.)
On October 7, 2016, "despite the fact that cellphone records exonerated [p]laintiff," and "with malice and the specific intent to improperly induce [p]laintiff into providing information concerning the murder that he had no knowledge of," and "with the lack of probable cause," DDA Chandler filed a felony complaint against plaintiff "due to unreasonable pressure" from Detective Leonard and Detective Does 1-10. (Id. ¶ 11.) Plaintiff was arraigned on October 13, 2016 and was granted supervised ankle bracelet monitoring. (Id. ¶ 12.) DDA Chandler subsequently opposed the court's decision to release plaintiff. (Id.)
DDA Chandler then conspired with Detective Leonard and Detective Does 1-10 to withhold cell phone records which showed that "[p]laintiff did not arrive nor [sic] leave Walnut Creek with Larry Griffin." (Id. ¶ 13.) After plaintiff was appointed an attorney, the attorney discovered that no written report existed implicating plaintiff as accessor to Brown's murder. (Id. ¶ 16.) He also discovered that the cell phone records showed that plaintiff did not arrive in or leave Walnut Creek with Griffin on the night of the murder and asked for plaintiff's immediate release. (Id. ¶ 17.) Plaintiff was released on or around January 27, 2017, after having spent approximately four months in jail. (Id.)
On May 22, 2017, prior to plaintiff's preliminary hearing, DDA Chandler requested that the felony charges against plaintiff be dismissed "due to insufficient evidence because no evidence existed implicating [p]laintiff in the accessory of or the actual murder." (Id. ¶ 18.) The court granted DDA Chandler's request. (Id.)
Based on these allegations, plaintiff's 4AC asserts the following claims pursuant to Section 1983: (i) a malicious prosecution claim against DDA Chandler; (ii) a Brady claim against DA Peterson; (iii) a malicious prosecution claim against Detective Leonard and Detective Does 1-10; (iv) a false arrest claim against Detective Leonard and Detective Does 1-10; (v) a Monell claim against the City; and (vi) a Monell claim against the County. Specifically, plaintiff alleges:
(Id. ¶¶ 21-25 (emphases removed).)
Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. To survive a motion to dismiss, the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This "facial plausibility" standard requires the plaintiff to allege facts that add up to "more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In deciding whether the plaintiff has stated a claim, a court must assume that the plaintiff's allegations are true and draw all reasonable inferences in the plaintiff's favor. Usher v. City of L.A., 828 F.2d 556, 561 (9th Cir. 1987). However, the court is not required to accept as true "allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (internal quotation marks omitted). Leave to amend must be granted to a pro se litigant unless it is clear that the complaint's deficiencies cannot be cured by amendment. Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995).
In summary, the Court previously dismissed without leave to amend plaintiff's malicious prosecution claim against DDA Chandler on the grounds that: (i) as asserted against her in her individual capacity, the claim was barred under the doctrine of prosecutorial immunity; and (ii) as asserted against her in her official capacity, the claim was barred under the Eleventh Amendment. (See MTD Order at 7-8.) As for DA Peterson, the Court previously read plaintiff's Brady claim against DA Peterson as being asserted against DA Peterson only in his individual capacity, which plaintiff did not dispute. (See id. at 13.) Based on that undisputed interpretation, the Court dismissed the claim without leave to amend as barred under the doctrine of prosecutorial immunity. (See id.) Accordingly, and for the reasons stated in the Court's previous order, the Court reaffirms its previous decision and
Plaintiff's Brady claim against DA Peterson in his official capacity fares no better. Specifically, plaintiff indicates that he "seek[s] claims for Respondeat Superior Liability against [DA Peterson] for implementing a practice, policy, or custom of allowing his Deputy District Attorneys to withhold exculpatory material or information[.]" (4AC ¶ 4.) As a preliminary matter, and as the Court previously advised plaintiff, "[t]here is no respondeat superior liability under [S]ection 1983." Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989); see also Iqbal, 556 U.S. at 676 ("Because vicarious liability is inapplicable to . . . § 1983 suits, a plaintiff must plead that each Government-official defendant, through the official's own individual actions, has violated the Constitution."); MTD Order at 13 n.15. Putting plaintiff's respondeat superior allegations aside, as the Court must, plaintiff complains only about an alleged practice, policy, or custom promulgated by DA Peterson of not disclosing Brady evidence, and DA Peterson's purported failure to train deputy district attorneys regarding disclosure of the same. Plaintiff makes no claim against DA Peterson that does not involve the initiation of prosecution or for actions that are not intimately connected with the deputy district attorneys' roles in judicial proceedings. Thus, for the same reasons plaintiff's malicious prosecution claim is barred as against DDA Chandler, plaintiff's Brady claim is barred as against DA Peterson. (See MTD Order at 8.) Moreover, other than conclusory allegations regarding a practice, policy, or custom, the complaint lacks any substantive allegations that withstand review.
Accordingly, plaintiff's Section 1983 Brady claim as asserted against DA Peterson in his official capacity is
Plaintiff alleges malicious prosecution against Detective Leonard and Detective Does 1-10 in violation of his Fourth Amendment rights. (4AC ¶ 1.)
Where an actor such as a police officer, investigator, or even a prosecutor knowingly provides misinformation, conceals exculpatory evidence, or otherwise engages in wrongful conduct that was "actively instrumental in causing the initiation of legal proceedings," a claim for malicious prosecution will lie. Awabdy v. City of Adelanto, 368 F.3d 1062, 1067 (9th Cir. 2004). To establish a malicious prosecution claim under Section 1983, a plaintiff must allege: (1) the initiation of a prosecution which ended in a termination favorable to the plaintiff; (2) lack of probable cause; (3) malice; and (4) that the prosecution was done for the purpose of denying the plaintiff's constitutional rights. See Smith v. Almada, 640 F.3d 931, 938 (9th Cir. 2011); Awabdy, 368 F.3d at 1066-68. "Ordinarily, the decision to file a criminal complaint is presumed to result from an independent determination on the part of the prosecutor, and thus, precludes liability for those who participated in the investigation or filed a report that resulted from the initiation of proceedings." Awabdy, 368 F.3d at 1067. "However, the presumption of prosecutorial independence does not bar a subsequent § 1983 claim against state or local officials who improperly exerted pressure on the prosecutor, knowingly provided misinformation to him, concealed exculpatory evidence, or otherwise engaged in wrongful or bad faith conduct that was actively instrumental in causing the initiation of legal proceedings." Id.
As an initial matter, and as the Court noted in its previous order, the presumption of prosecutorial independence is an evidentiary presumption that is applicable at the summary judgment stage to direct the order of proof; "it is not a pleading requirement to be applied to a motion to dismiss, before discovery has taken place." Galbraith v. Cty. of Santa Clara, 307 F.3d 1119, 1126 (9th Cir. 2002); see also MTD Order at 10. With this in mind, the Court finds the allegations in the 4AC are sufficient to withstand the City's motion to dismiss. Specifically, plaintiff alleges that he was arrested without probable cause because Detective Leonard and Detective Does 1-10 knew prior to booking him that his cell phone records did not support the theory that plaintiff was in the area of the murder when it happened or that he was in contact with the shooter. (See 4AC ¶ 10.) He further alleges that Detective Leonard and Detective Does 1-10 acted "for the improper purpose of incarcerating [p]laintiff in order to induce [p]laintiff into providing information he did not have concerning additional suspects or other information implicating Larry Griffin." (Id.)
As for the City's contention that plaintiff's malicious prosecution clam is barred by qualified immunity, that argument fails since it hinges on the contents of the statement of probable cause over which the City seeks judicial notice. (See City's MTD at 11 ("Here, taking judicial notice of the contents of the Statement of Probable Cause . . ., which was the basis for the Ramey Warrant issued to Det. Jeha . . ., there was still sufficient sufficient indicia of probable cause to obtain the Ramey Warrant for [p]laintiff's arrest.").) For the reasons previously discussed, the Court declines to accept as true the facts alleged in the statement of probable cause. (See supra at 3 n.3.)
Accordingly, the City's motion to dismiss preemptively plaintiff's malicious prosecution claim against Detective Leonard and Detectives Does 1-10 is
With respect to plaintiff's Section 1983 false arrest claim against Detective Leonard and Detective Does 1-10, the City is correct that plaintiff has amended his complaint numerous times and has never before moved or been granted leave by this Court to add such a claim to this action. However, when balanced against the fact of plaintiff's pro se status, as well as the rules liberally favoring amendment of a complaint,
"A claim for unlawful arrest is cognizable under Section 1983 as a violation of the Fourth Amendment, provided the arrest was without probable cause or other justification." Dubner v. City & Cty. of S.F., 266 F.3d 959, 964 (9th Cir. 2001). "Probable cause to arrest exists when officers have knowledge or reasonably trustworthy information sufficient to lead a person of reasonable caution to believe that an offense has been or is being committed by the person being arrested." United States v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007).
As stated above, the 4AC alleges that plaintiff was arrested without probable cause because Detective Leonard and Detective Does 1-10 knew prior to booking him that his cell phone records did not support the theory that plaintiff was in the area of the murder when it happened or that he was in contact with the shooter. (See 4AC ¶ 10.) Drawing reasonable inferences in favor of plaintiff, the Court finds that plaintiff has sufficiently alleged facts showing that his arrest was without probable cause.
In general, counties are liable under Section 1983 for acts by their employees that are caused by an official policy or custom. Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 690, 694 (1978). Here, however, the alleged employees against whom plaintiff complains are "Contra Costa Deputy District Attorney Mark Peterson and Deputy District Attorney Alison Chandler." (4AC ¶ 3.) As indicated in the Court's previous order, district attorneys and deputy district attorneys act on behalf of the state, and not the county, when initiating and prosecuting criminal cases. (See MTD Order at 8.) Accordingly, as alleged, no Monell claim can be stated against the County based on the actions of its district attorney's office because a district attorney represents the state, and not the county, when preparing to prosecute and while prosecuting crimes. See Ceballos v. Garcetti, 361 F.3d 1168, 1182 (9th Cir. 2004) ("Counties are not entitled to sovereign immunity. . . . [H]owever, the County can be held liable only if the District Attorney acted as a county officer. If the District Attorney was a state officer . . ., he is entitled to Eleventh Amendment immunity . . . and the County cannot be held liable for those acts."), reversed and remanded on other grounds, 547 U.S. 410 (2006); see also Weiner v. San Diego Cty., 210 F.3d 1025, 1031 (9th Cir. 2000) (holding that because district attorneys are state officers when exercising their prosecutorial functions, Section 1983 claims against the county failed because the state was the relevant actor, not the county).
Because plaintiff remains unable to allege a Monell claim against the County despite the 4AC being the fifth iteration of his complaint, plaintiff's Monell claim against the same is
Plaintiff's Monell claim against the City also fails. While a city may also be liable under Section 1983 for actions of its employees caused by the city's official policies or customs, here, plaintiff's allegations, again, are "conclusory and seemingly rely on his own experience." MTD Order at 16-17; see also Ragan v. Cty. of Humboldt Dep't of Health & Human Servs., No. 16-cv-05580-RS, 2017 WL 878083, at *7 (N.D. Cal. Mar. 6, 2017) (finding that plaintiffs insufficiently alleged a custom, policy, or practice to establish Monell liability against the county because they only pleaded actions "related to their own experience"). While plaintiff references "a repeated practice of arresting numerous minority citizens across Contra Costa County for violent crimes such as murder and assault without probable cause," he does not allege an actual formal policy, unwritten custom, or longstanding practice with sufficient particularity to infer that such a policy, custom, or practice exhibits deliberate indifference to plaintiff's constitutional rights or caused the constitutional violations he alleges. (4AC ¶ 25.) He merely assumes one exists. As the Court previously explained, such as an assumption is insufficient. (See MTD Order at 17.)
Because plaintiff has failed to cure the deficiencies in his Monell claim against the City, and because he indicates no ability to do so in his opposition to the City's motion to dismiss, (see Opp. to City's MTD at 6 (merely repeating verbatim paragraph 25 of the 4AC without providing further argument)), plaintiff's Monell claim against the City is
For the foregoing reasons, the County's motion to dismiss is
The Court understands that plaintiff intends to assert claims for malicious prosecution and false arrest against Detective Jeha. The Court grants the request to so amend. The Court further understands that the City's counsel has agreed to accept service of the Fifth Amended Complaint on Detective Jeha's behalf. (See Notice.)
Plaintiff's Fifth Amended Complaint, which shall contain
The Court advises plaintiff that a Handbook for Pro Se Litigants, which contains helpful information about proceeding without an attorney, is available in the Clerk's office or through the Court's website,
The Court also advises plaintiff that additional assistance may be available by making an appointment with the Legal Help Center.
This Order terminates Docket Numbers 53 and 56.
The Court also notes that plaintiff has filed several exhibits in support of his opposition to the City's motion to dismiss without an affidavit or declaration authenticating those exhibits as required by Civil Local Rule 7-5. See Dkt. No. 60 ("Opp. to City's MTD") at ECF pp. 7-34. The Court did not rely on any of those exhibits in its analysis herein. However, plaintiff is advised that all future filings must comply with all applicable Federal Rules of Civil Procedure and Civil Local Rules.
As ordered at the hearing held on March 26, 2019, the City's counsel has notified the Court that she contacted Detective Leonard regarding acceptance of service, and he authorized her to accept service on his behalf. See Dkt. No. 64 ("Notice"). A copy of the notice was mailed to plaintiff on April 2, 2019. See Dkt. No. 65. The Court gave plaintiff a week from receipt of the notice to effectuate service on Detective Leonard. For efficiency reasons, the Court provides guidance herein with respect to the claims against Detective Leonard.
Moreover, neither Awabdy nor Fetters v. Cty. of L.A., 243 Cal.App.4th 825 (2016), which the City relied on at oral argument, requires plaintiff to plead more with respect to the favorable termination element of his malicious prosecution claim. Rather, DDA Chandler's request for dismissal "because no evidence existed implicating [p]laintiff" constitutes a showing of a favorable outcome as it establishes, for pleading purposes, plaintiff's innocence. 4AC ¶ 18.
To the extent plaintiff seeks to substitute Detective Jeha for Doe 1 and assert a false arrest claim for judicial deception based on Detective Jeha's inclusion of material false statements in the affidavit submitted in support of the warrant application, he may do so in his Fifth Amended Complaint.
