The opinion of the court was delivered by: RONALD WHYTE, District Judge
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS TO
[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 ¶¶
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
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.
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 ...