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United States District Court, N.D. California

April 29, 2004.

STEVEN C. ATKINS, Plaintiff,

The opinion of the court was delivered by: MARILYN PATEL, Chief Judge, District


Motion for Summary Judgment

On July 31, 2003, plaintiff Steven C. Atkins, proceeding pro se, brought this civil action against defendants the County of Alameda, City of Alameda, Eileen McAndrew, and Officer Patrick Wyeth of the Alameda Police Department (collectively "defendants"). Atkins' complaint alleges that defendants participated — individually and collectively — in the false arrest, illegal search, and malicious prosecution of plaintiff; in the process, plaintiff claims, defendants violated the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. For these supposed violations, plaintiff seeks unspecified sums of compensatory and punitive damages, and he requests an award of costs and attorneys' fees.

  On August 20, 2003, defendants filed an answer to plaintiff's complaint. On March 8, 2004, the court granted defendants' motion to stay this action pursuant to the Soldiers' and Sailors' Civil Relief Act, see 50 U.S.C. § 501, et seq., though the court expressly permitted two defendants (viz., McAndrew and the County of Alameda) to file limited summary judgment motions. McAndrew and the County have now filed joint motions for summary judgment. The court has considered the parties' arguments fully, and for the reasons set forth below, the court rules as follows. BACKGROUND*fn1

  On November 20, 2002, Stephanie Atkins phoned the Alameda Police Department ("APD") to report that her father, plaintiff Steven Atkins, had been drinking heavily and had left home in his car.*fn2 Speaking with an APD emergency operator, Stephanie described the make and license number of plaintiff's car — a Jeep Cherokee — adding that she believed plaintiff was planning to purchase more alcohol. APD dispatched Officer Wyeth to respond to Stephanie's call. Officer Wyeth could not locate plaintiff (or plaintiff's vehicle) in the areas surrounding plaintiff's home, most notably at any of the neighborhood's liquor stores. Still needing to verify Stephanie's report, Officer Wyeth drove to the Atkins' home. Once there, Officer Wyeth spotted a vehicle matching Stephanie's description in the driveway of plaintiff's home. The vehicle's headlights were on; its engine block was warm; and it had been parked such that its bumper pressed against the garage door.

  Wearing a micro-cassette recorder, Officer Wyeth approached plaintiff's front door. An extensive exchange involving Officer Wyeth, plaintiff, Stephanie, and plaintiff's wife, Sheila, followed.*fn3 Concerned for Stephanie's safety, Officer Wyeth entered the home through an unlocked screen door. Stephanie then confirmed that she had placed the call to APD; Sheila added that plaintiff had been drinking consistently that evening. At Sheila's request, Officer Wyeth placed plaintiff under arrest*fn4 and transported him to the APD jail,*fn5 where plaintiff spent approximately four hours in a detoxification cell. At 12:35 a.m., after being cited and after signing a promise to appear, plaintiff was released. Sheila later requested an emergency protective order.

  Within two weeks, the district attorney of Alameda County filed charges against plaintiff for driving under the influence and refusing to take a chemical test. See Cal Veh. Code §§ 23152(a), 23577. Deputy District Attorney McAndrew was assigned to the case. On December 12, 2002, plaintiff was arraigned, and he pled not guilty. Two weeks later, McAndrew offered plaintiff a plea deal, one that would allow plaintiff to accept responsibility for a first DUI offense. Plaintiff refused, offering McAndrew a "waiver" of a malicious prosecution suit instead. See McAndrew Decl., Exh. D. Approximately a month later, on January 27, 2003, McAndrew met with Stephanie. During this meeting, McAndrew learned that neither Sheila nor Stephanie wished to proceed with the prosecution and that neither wanted to testify against plaintiff. Citing insufficient evidence, the district attorney dismissed the criminal action on the same day; plaintiff was immediately notified.

  Approximately six months later, plaintiff filed a complaint in this court, alleging a myriad of civil rights violations and seeking unspecified amounts of compensatory and punitive damages. See 42 U.S.C. § 1983. On March 8, 2004, the court stayed this action, pursuant to the Soldiers' and Sailors' Civil Relief Act, see 50 U.S.C. § 501, et seq., expressly permitting defendants McAndrew and the County of Alameda to file limited summary judgment motions. McAndrew and the County have now filed related motions for summary adjudication, arguing, inter alia, that they are absolutely immune from suit.


  Under Federal Rule of Civil Procedure 56, summary judgment shall be granted "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial . . . since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); Fed.R.Civ.P. 56(c). When a party makes a summary judgment motion, that party bears the initial burden of identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. To discharge this burden, the moving party must show that the nonmoving party has failed to disclose the existence of any "significant probative evidence tending to support the complaint." First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 290 (1968). If the moving party satisfies this preliminary hurdle, the burden then shifts to the nonmoving party to "go beyond the pleadings, and by her own affidavits, or by the `depositions, answers to interrogatories, and admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex Corp., 477 U.S. at 324 (citations omitted).

  Not all disputes that arise in the course of litigation constitute genuine issues of material fact. A dispute about a material fact is genuine — and thus adequate to survive a motion for summary judgment — "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Mere allegations or unsubstantiated denials do not, without more, generate a genuine issue of material fact. See Gasaway v. Northwestern Mut. Life Ins. Co., 26 F.3d 957, 960 (9th Cir. 1994). When considering motions for summary judgment, the court views the facts — and the inferences drawn therefrom — in the light most favorable to the party opposing the motion. See T.W. Elec. Serv., Inc. v. Pacific Elec. Contractor's Ass'n, 809 F.2d 626, 631 (9th Cir. 1987). The court does not, at this juncture, make credibility determinations. See Anderson, 477 U.S. at 249.


  It is now axiomatic that prosecutors are "absolutely immune from liability under [42 U.S.C.] section 1983 for their conduct in initiating a prosecution and in presenting the State's case insofar as that conduct is intimately associated with the judicial phase of the criminal process." Burns v. Reed, 500 U.S. 478, 486 (1991) (citing Imbler v. Pachtman, 424 U.S. 409, 431 (1976)) (internal quotation marks omitted); see also Roe v. City and County of San Francisco, 109 F.3d 578, 583 (9th Cir. 1997). This "absolute immunity" protects prosecutors "from liability for failure to investigate the accusations against a defendant before filing charges," and it shields prosecutors from suit for the performance of so-called "traditional prosecutorial duties" — e.g., trial preparation and decisions about whether or not to prosecute. See Broam v. Bogan, 320 F.3d 1023, 1028-29 (9th Cir. 2003) (elaborating the distinction between "absolute" and "qualified" immunity, the latter of which applies where a prosecutor is performing purely "investigatory or administrative" functions) (citing O'Connor v. Nevada, 686 F.2d 749, 750 (9th Cir. 1982)); Roe, 109 F.3d at 583 ("There can be no question that the nature of the decision not to prosecute is intimately associated with the judicial phase of the criminal process.").

  There is no question that absolute prosecutorial immunity covers McAndrew's conduct in this instance. Without exception, McAndrew's actions were "intimately associated with the judicial phase" of the overall criminal process: She oversaw plaintiff's arraignment; she offered plaintiff a plea bargain (and received a strange counter-offer in return); she met with a key witness; and she opted not to prosecute when faced with evidence insufficient to succeed at trial. During oral argument, plaintiff attempted (for the first time) to concoct a "conspiracy" claim from McAndrew's conduct. But McAndrew's actions do not give rise to a "conspiracy." Rather, such activities are central to the execution of a prosecutor's core judicially-related duties, and they are precisely the kind of activities absolute prosecutorial immunity is meant to shield.*fn6 See, e.g., Radcliffe v. Rainbow Construction Co., 254 F.3d 772, 782 (9th Cir. 2001) ("A prosecutor's activities in connection with the preparation and filing of charging documents . . . are protected by prosecutorial immunity.") (citing Kalina v. Fletcher, 522 U.S. 118, 129 (1997)); see also Broam, 320 F.3d at 1029. It follows that McAndrew is absolutely immune from suit in this instance, whatever her motives and whatever the overall effect of her conduct. See id. ("If the action was part of the judicial process, the prosecutor is entitled to the protection of absolute immunity whether or not he or she violated the civil plaintiff's constitutional rights") (citing Scheuer v. Rhodes, 416 U.S. 232, 242 (1974); emphasis added); In re Gruntz, 202 F.3d 1074, 1086 n.13 (9th Cir. 2000) ("[W]e have eschewed general examination of prosecutorial motives.") (en banc). McAndrew's motion for summary judgment must be granted accordingly.

  The County's related motion for summary adjudication must also be granted, albeit for an importantly different reason. As McAndrew and the County correctly observe, plaintiff's claims against the County are based on — and, in a sense, derivative of — plaintiff's untenable claims against McAndrew. For this reason, apparently, defendants conclude that McAndrew's absolute immunity protects the County as well. To buttress this conclusion, defendants cite only a single state law case and a provision of state statutory law. See Gensburg v. Miller, 31 Cal.App.4th 512, 525 (Cal.App. 1994); Cal. Gov't Code § 815.2(a).*fn7

  What state law says, however, is inapposite here. The Ninth Circuit has long reminded that "[i]mmunity under [section] 1983 is governed by federal law; state law cannot provide immunity from suit for federal civil rights violations." Id. (emphasis added; citing, e.g., Martinez v. California, 444 U.S. 277, 284 (1980)). As a matter of federal law, "[t]here are [] no personal immunities available vicariously or otherwise to municipal actors under [section] 1983." Wallis v. Spencer, 202 F.3d 1126, 1143-44 (9th Cir. 2000) (discussing the many different scopes of state and federal immunity). "The County," put simply, "is not protected by [McAndrew's] [] immunity." Cruz v. Kauai County, 279 F.3d 1084, 1067 n.1 (9th Cir. 2002) (citing Owen v. City of Independence, 445 U.S. 622, 638 (1980)).*fn8 If the County is deserving of summary adjudication, then, it must be for a different reason.

  A different reason pertains here. Decades ago, the Supreme Court held that "a local government may not be sued under [section] 1983 for an injury inflicted solely by its employees or agents." Monell v. Department of Social Services, 436 U.S. 658, 694 (1978); see also McMillian v. Monroe County, 520 U.S. 781, 783 (1997). "Instead," the Supreme Court noted, a municipal entity may be liable under section 1983 only where the individual employee is executing official "policy or custom." Id; see also Brass v. County of Los Angeles, 328 F.3d 1192, 1198 (9th Cir. 2003). Plaintiff has adduced no evidence to suggest that his putative injuries were "inflicted" by anyone — or anything — other than prosecutor McAndrew. Id. Nor has plaintiff proffered anything to show that a particular County "policy or custom" gave rise to any deprivation of his constitutional rights. Id. If anything, plaintiff has demonstrated that the County has a "policy" of withdrawing criminal charges when pivotal witnesses no longer wish to testify and when full prosecution would be otherwise injudicious. Such a "policy" does not give rise to a constitutional violation, and it does not allow plaintiff to survive the County's motion for summary judgment. Id.


  For the foregoing reasons, defendants' motions for summary judgment are GRANTED. IT IS SO ORDERED.

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