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September 30, 2005.


The opinion of the court was delivered by: RONALD WHYTE, District Judge

[Re Docket Nos. 11, 15]
Defendants County of Santa Clara ("County"), Gerald Egge ("Egge"), Gail Lewis ("Lewis"), Earl Pennington ("Pennington"), John Schon ("Schon") and Randy Danto ("Danto") filed motions to dismiss the County and Danto from the complaint. Plaintiffs Quedillis Ricardo Walker ("Walker"), Myrtle Vivian Walker, and William Berkeley Walker oppose the motion. The court has reviewed the papers and considered the arguments of counsel. For the reasons discussed below, the court grants in part and denies in part defendants' motions to dismiss as follows: plaintiffs' Monell claims against the County based on the actions of the district attorney, the sheriff and his deputies, and the Conflicts Administration Program are dismissed because they are state officials; defendants' motion to dismiss plaintiffs' Monell claims against the County based on the actions of Public Defender Danto is denied to the extent that Danto was not a state official, but is granted to the extent such claims are based on Danto's failure to disclose the plea agreement, which is barred by collateral estoppel; plaintiffs' claims against the sheriff and district attorney are barred by Eleventh Amendment sovereign immunity; plaintiffs' claims against the Public Defender's Office and Conflicts Administration Program are dismissed for failure to state a claim; plaintiffs' state claim for damages under Article 1, Section 15 is dismissed because plaintiffs do not contest that there is no indication that damages are provided for under Article 1, Section 15; defendants' motion to dismiss plaintiffs' Bane Act claim against the County is denied as to Walker, but granted as to Myrtle Walker and William Walker; plaintiffs' claims against the County based on negligent supervision and hiring are dismissed; plaintiffs' claims against Danto, to the extent they are based on her failure to disclose the plea agreement, are barred by collateral estoppel and alternatively for failure to state a claim; defendants' motion to dismiss plaintiffs' Bane Act claim against Danto is granted; defendants' motion to dismiss claims against Danto based on sections 821.6 and 820.2 is denied; defendants' motion to dismiss plaintiffs' claims against Danto based on the litigation privilege is granted; and plaintiffs are granted thirty days leave to amend.


  On January 10, 1991 34-year-old Lisa Hopewell, Walker's ex-girlfriend, was found murdered in her apartment with her head wrapped in duct tape, her throat slit and her vaginal area stabbed. The cause of death was asphyxia. There was evidence that someone had been drinking champagne, and also evidence of crack cocaine use. The tip of one finger of an Isotoner glove was found stuck to a piece of duct tape, there were several cigarette butts near the body, and surfaces that might have carried fingerprints appeared to have been wiped clean. Plaintiff Walker and Rahsson Bowers were tried for Hopewell's murder. Bowers' fingerprints were found on the duct tape, but there was no physical evidence linking Walker to the crime. Bowers had previously admitted to dealing crack cocaine, and was Hopewell's primary drug supplier. FAC ¶ 35. Subsequent investigation revealed that Hopewell's arms and legs, and every identifiable print from the duct tape, matched the recorded fingerprints of Bowers.

  A. Investigation and witness interviews

  Bowers was arrested on March 7, 1991 and interrogated by Deputy Sheriffs Egge, Lewis and Pennington ("Sheriffs"). Bowers initially denied involvement in the crime until the Sheriffs threatened him with the death penalty. First Am. Compl. ("FAC") ¶ 34. After being shown a series of photographs, including Walker's, Bowers identified "two white guys" and Walker in the crime. After failing a polygraph test, Bowers omitted the "two white guys" but still implicated Walker after encouragement from the Sheriffs. After implicating Walker without the "two white guys," the Sheriffs did not administer a second polygraph test on Bowers. FAC ¶ 34.

  As part of the investigation, the Sheriffs and deputy district attorney John Schon went to the county jail to interview Sarah Dunbar. FAC ¶ 40. Plaintiffs allege that Dunbar was susceptible to being manipulated because she was awaiting trial on a drug charge, and in exchange for a lesser sentence, testified falsely that Walker had a propensity for violence, that he threatened to hurt her if she testified, and that Walker wore gloves similar to the Isotoner gloves found at the murder scene. Walker and his attorney were not informed of Dunbar's interview or any deal with Dunbar, and Dunbar recanted her testimony after trial. FAC ¶ 40.

  The Sheriffs also interviewed Jacqueline Miller, who had apparently spent the night with Walker at the time of the murder. Plaintiffs allege that the Sheriffs played on Miller's vulnerability — that she was married and spending the night with Walker, who was not her husband — in order to "trick" Miller into saying that she had spent only part of the night with Walker. Although she subsequently stated that she spent the entire night with him, her initial statements to the Sheriffs were used to impeach her testimony at trial. FAC ¶ 41.

  B. Alleged suppression of evidence

  Assistant Public Defender Randy Danto was assigned to defend Bowers. As the Office of the Public Defender could not represent Walker due to a potential conflict with Bowers, Walker was represented by James Mantell, a private attorney appointed through the County's Conflicts Administration Panel. FAC ¶¶ 42-43.

  The day before the trial, Bowers wrote a letter to Deputy Sheriff Egge, accusing Egge of reneging on a plea agreement, and expressing fear that he would be subject to the death penalty. FAC ¶ 44. Bowers signed the letter in his own blood. This letter, which plaintiffs allege was critical to impeachment of Bowers' testimony at trial, was never disclosed or produced to Walker's defense counsel. FAC ¶ 45. C. Undisclosed plea agreement and plea agreement negotiations

  Plaintiffs allege that Bowers' counsel Danto had multiple conversations with Schon prior to trial in an attempt to secure a plea bargain. These conversations were not revealed to Walker or his attorney. FAC ¶ 46. Just after the commencement of trial, Schon agreed to a plea agreement with Bowers: Bowers would be allowed to plead to second degree murder in exchange for testifying against Walker. FAC ¶ 47. Plaintiffs allege that Danto and Schon agreed not to reveal the plea agreement to anyone else, including the court, until the state concluded its case against Walker. FAC ¶ 48.

  By not revealing the plea agreement, Bowers was allowed to remain in the courtroom throughout the other witness testimony. Plaintiffs allege that this was improper, as Bowers became a state witness, and was no longer an actual defendant at that point. FAC ¶ 49. At trial, Danto made numerous arguments to the jury in support of Bowers' coercion defense. Danto asserted that Walker had a record of and reputation for extreme violence, that Walker threatened Bowers and his family, and that other witnesses were afraid of Walker. Id. Plaintiffs argue that none of Danto's arguments would have been allowed had the plea agreement been revealed.*fn1

  D. Verdict and post-trial events

  Walker was convicted of first degree murder and sentenced to a term of 26 years to life in prison. During his time in prison, multiple witnesses testified that another individual, Mark Swanson, was Bowers' accomplice, and subsequent tests on cigarette butts left at the crime scene matched saliva fragments with blood taken from Swanson. FAC ¶ 53. A history of Walker's various appeals and petitions for writs of habeas corpus in the state and federal courts is discussed in more detail in the court's discussion on collateral estoppel below. Walker spent 12 years in prison before a writ of habeas corpus was issued on June 20, 2003. II. ANALYSIS

  A. Monell claims against the County under Section 1983

  State officials are not subject to suit under section 1983 because they are not persons within the meaning of the statute. See Will v. Michigan Dept. of State Police, 491 U.S. 58, 71 (1989). "Obviously, state officials literally are persons. But a suit against a state official in his or her official capacity is not a suit against the official but rather is a suit against the official's office." Will, 491 U.S. at 71 (citations omitted). "As such, it is no different from a suit against the State itself." Id. (citations omitted). On the other hand, "[p]ursuant to 42 U.S.C. § 1983, a local government may be liable for constitutional torts committed by its officials according to municipal policy, practice, or custom." Weiner v. San Diego County, 210 F.3d 1025, 1028 (9th Cir. 2000) (citing Monell v. Department of Social Servs., 436 U.S. 658, 690-91 (1978)). "[A] local government may not be sued under § 1983 for an injury inflicted solely by its employees or agents. Instead, it is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983." Monell, 436 U.S. at 694.

  Thus, the question initially turns on whether the official is a representative of the County or a representative of the State. In answering this question, the official's function in a particular area, "as defined by state law, must be evaluated to determine whether he acts for the state or the county." Weiner, 210 F.3d at 1028 (citing McMillian v. Monroe County Alabama, 520 U.S. 781, 786 (1997)).

  1. Section 1983 claim based on conduct of district attorney

  Walker does not bring a claim based on the District Attorney's decision to prosecute. Rather, plaintiffs' section 1983 claim argues that the District Attorney is subject to Monell liability based on two theories: (1) customs and policies of the District Attorney that plaintiff alleges violate the constitutional rights of criminal suspects and defendants; and (2) delegating final policy making authority to Schon, or ratifying his conduct. Defendants counter that Schon is not a "person" for purposes of section 1983 liability because he was prosecuting crimes against Walker.

  In Pitts v. County of Kern, plaintiffs were individuals whose convictions for child molestation were reversed on appeal due to prosecutorial misconduct. 17 Cal. 4th 340, 345 (1998). Plaintiffs subsequently brought a section 1983 suit against, inter alia, the County of Kern for employing the deputy district attorney and chief prosecutor. After conducting a detailed analysis, the California Supreme Court concluded that a district attorney represents the state when preparing to prosecute and when prosecuting criminal violations of state law. Id. at 356-62. The California Supreme Court went on to find that there was no reasonable distinction between a district attorney's actions when prosecuting violations of state law, and the district attorney's training and developing policy in these areas. Thus, a district attorney also represents the state when training and developing policies related to prosecuting violations of state law. See id. at 362-63; Venegas v. County of Los Angeles, 32 Cal. 4th 820, 832-33 (2004); see also Weiner, 210 F.3d at 1030 (county district attorney acts as state official when deciding whether to prosecute an individual); accord Brewster v. Shasta County, 275 F.3d 803, 810 (9th Cir. 2001).

  Similarly, here the court is satisfied that when establishing customs and policies related to prosecuting individuals for violations of state law, the district attorney and deputy district attorney Schon were both acting as state officials, and the County is therefore not subject to liability under section 1983 for their actions.

  2. Section 1983 claim based on conduct of sheriffs

  Plaintiffs contend that the Ninth Circuit's holding in Brewster v. Shasta County controls, and therefore that the sheriff, when investigating crime, acts as a final policymaker for the County when investigating crime within the County. 275 F.3d 803, 812 (9th Cir. 2001). Defendants counter that Venegas v. County of Los Angeles is controlling. 32 Cal. 4th 820 (2004). In Venegas, the California Supreme Court expressly disagreed with the Ninth Circuit's decision in Brewster, and held that "California sheriffs act as state officers while ...

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