United States District Court, N.D. California
April 29, 2004.
STEVEN C. ATKINS, Plaintiff,
COUNTY OF ALAMEDA, CITY OF ALAMEDA, OFFICER P. WYETH, EILEEN MCANDREW, and DOES 1-10, Defendants
The opinion of the court was delivered by: MARILYN PATEL, Chief Judge, District
MEMORANDUM AND ORDER
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
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.