United States District Court, N.D. California
November 8, 2005.
WALTER L. WAGNER, Plaintiff,
DEAN FLIPPO; CAROL REED; MURAT OZGUR; and THE COUNTY OF MONTEREY, Defendants.
The opinion of the court was delivered by: JEFFREY WHITE, District Judge
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS
Now before the Court is the motion by defendants Dean Flippo,
Carol Reed, Murat Ozgur,*fn1 and the County of Monterey
(collectively "Defendants") to dismiss plaintiff Walter L.
Wagner's complaint for failure to state a claim upon which relief
can be granted. The Court finds this matter suitable for
disposition without oral argument. Civil L.R. 7-1(b). Having
carefully reviewed the parties' papers, considered their
arguments and the relevant legal authority, and good cause
appearing, the Court hereby GRANTS Defendants' motion to dismiss.
Plaintiff brings a claim under 42 U.S.C. § 1983 ("Section
1983") against Defendants for their alleged wrongful prosecution
of him in Monterey Superior Court for criminal contempt of a
court order. (Compl. at ¶ 14.) Defendants prosecuted Plaintiff
pursuant to California Penal Code § 166(a)(4), which defines
contempt of court as the willful disobedience of the written
terms of a lawfully-issued court order and classifies the crime as a
misdemeanor. (Compl. at ¶ 6.) The prosecution commenced on
November 20, 2001. (Compl. at ¶ 6.) According to Defendants,
Plaintiff disobeyed the terms of a 1977 permanent injunction when
he made several attempts to contact Ms. Gail Morton in Monterey
on November 9 and 10, 2001. (Br. at 1-2.) The permanent
injunction prohibited Plaintiff from harassing Ms. Morton by
telephone, in writing, or by walking, riding, or driving past her
home. Morton v. Wagner, No. H024187, 2003 WL 21456517, at *2
(Cal.Ct.App. June 24, 2003).*fn2
Plaintiff and Ms. Morton met as first-year students at McGeorge
Law School. Id. at *1. Plaintiff pursued Ms. Morton in an
erratic and persistent fashion. Id. He lurked in the hallway of
her apartment building, jumped out of bushes at her, and
delivered all manner of objects to her by placing them in and
around her car. Id. He sought court orders to prohibit Ms.
Morton from living with men over the age of 14 and to require her
to read books on sexual reproduction. Id. He was found on
campus wearing a wig and carrying a knife. Id. As a result of
his threatening behavior, the law school provided Ms. Morton with
a 24-hour security guard to protect her until she completed the
bar exam in 1978. Id. During this period, Ms. Morton filed a
lawsuit against Plaintiff for intentional infliction of emotional
distress; she sought a temporary and permanent injunction to
restrain Plaintiff from contacting her. Id. at *2. The lawsuit
resulted in the 1977 injunction which Defendants used to
prosecute Plaintiff. Id.
Plaintiff made continued attempts to contact Ms. Morton both at
her work and last-known home addresses even after the 1977
permanent injunction issued. Id. Plaintiff kept Ms. Morton's
parents' home in Santa Clara County under surveillance; he sent
letters to their home. Id. He attended Ms. Morton's courtroom
appearances and inquired about her at the Santa Clara County
Superior Court. Id. Once in 1999, Plaintiff followed Ms. Morton
out of the Santa Clara County courthouse as she walked to her car. Id.
The events that led Defendants to prosecute Plaintiff occurred
on November 9 and 10, 2001. (Compl. at ¶ 2.) On the morning of
November 9, 2001, Ms. Morton appeared in the Santa Clara County
courthouse on client business. Morton, 2003 WL 21456517, at *2.
She overheard a man asking one of the bailiffs if he knew of an
attorney named Gail Morton; when she looked over, she recognized
Plaintiff as the inquirer. Id. Plaintiff later drove down to
Monterey, the city where Ms. Morton resides, and appeared at Ms.
Morton's parents' home. Id. He identified himself as "Zahaenya
Wagner" and asked to contact Ms. Morton. Id. That evening,
Plaintiff telephoned Ms. Morton's father and left a telephone
number where he could be reached. (Compl. at ¶ 2; Opp. Br. at 3.)
The next day, before leaving Monterey, Plaintiff left his
business card at a shop adjacent to Ms. Morton's workplace, and
asked the shopkeeper to deliver the card to Ms. Morton in order
to make sure she received it.*fn3 (Id.)
Ms. Morton, frightened by Plaintiff's appearance in Monterey,
contacted the Pacific Grove and Monterey Police Departments on
November 10, 2001, and provided each with a copy of the 1977
injunction. Morton, 2003 WL 21456517, at *2. When she saw
Plaintiff leaving the area later in the day, she notified the
police of his presence. Id. The police arrested Plaintiff on
his way to the San Francisco airport. (Opp. Br. at 4.) At the
time of his arrest, Plaintiff was in possession of several knives
and a list containing the names of all of Ms. Morton's coworkers.
After Plaintiff's arrest, Defendants commenced a criminal
prosecution against him. (Compl. at ¶ 6.) Plaintiff, in his
defense, argued that the 1977 permanent injunction had been
voided by a mutual release entered into by Plaintiff and Ms.
Morton in 1981. (Compl. at ¶ 11; Br. at 1.) The 1981 civil action
arose out of an injurious newspaper article, and in the mutual
release, Ms. Morton agreed to "dismiss forthwith, with prejudice,
any action pending," and "to not make derogatory, untruthful, or
unfriendly remarks" about Plaintiff. (Br. at 1.) Defendants' case
against Plaintiff was dismissed with prejudice on July 14, 2004
by Judge Maldonado of the Monterey County Appellate Division of
the Superior Court of California. (Compl. at ¶ 7.) Judge
Maldonado found that the 1977 permanent injunction had been dissolved by the prior release
agreement and that Plaintiff should instead have been charged
under California stalker statutes. (Br. at 2.)
After Defendants' case was dismissed on appeal, Plaintiff
initiated this suit, claiming that "defendants' actions of
wrongful prosecution were a violation of both State and Federal
Statutes . . . and in particular, defendants actions [sic] were
a violation of Section 1983." (Compl. at ¶ 14.) Plaintiff alleges
that the wrongful prosecution consisted of: filing a criminal
complaint "based upon [the] wholly innocent activity of
Plaintiff" (Compl. at ¶¶ 6, 10); failure to research the law
(Compl. at ¶ 11); and continuing to prosecute Plaintiff after it
should have been apparent that the 1977 injunction was no longer
valid. (Id.) In response, Defendants argue that they are
absolutely immune from suit for the prosecutorial conduct
Plaintiff alleges violated his constitutional rights, and seek to
dismiss Plaintiff's complaint for failure to state a claim upon
which relief can be granted pursuant to Federal Rule of Civil
I. Legal Standard on a Motion to Dismiss.
A motion to dismiss is proper under Federal Rule of Civil
Procedure 12(b)(6) where the pleadings fail to state a claim upon
which relief can be granted. A motion to dismiss should not be
granted unless it appears beyond a doubt that a plaintiff can
show no set of facts supporting his or her claim. Conley v.
Gibson, 355 U.S. 41, 45-46 (1957). Thus, dismissal is proper
"only if it is clear that no relief could be granted under any
set of facts that could be proved consistent with the
allegations." Hishon v. King & Spaulding, 467 U.S. 69, 73
(1984). The complaint is construed in the light most favorable to
the non-moving party and all material allegations in the
complaint are taken to be true. Sanders v. Kennedy,
794 F.2d 478, 481 (9th Cir. 1986). The court, however, is not required to
accept legal conclusions cast in the form of factual allegations,
if those conclusions cannot reasonably be drawn from the facts
alleged. Cleggy v. Cult Awareness Network, 18 F.3d 752, 754-55
(9th Cir. 1994) (citing Papasan v. Allain, 478 U.S. 265, 286
(1986)). II. Defendants are Absolutely Immune from Plaintiff's Section
A. Defendants Assistant District Attorneys Flippo, Reed, and
Ozgur Are Immune.
Defendants move to dismiss Plaintiff's Section 1983 claim based
on the defense of absolute prosecutorial immunity from suit. (Br.
at 2.) Absolute or "quasi-judicial" immunity protects a
prosecutor from civil, monetary liability for injuries that arise
out of the prosecutor's execution of duties that are "intimately
associated with the judicial phase of the criminal process."
Imbler v. Pachtman, 424 U.S. 409, 430 (1976). The immunity is
quasi-judicial because it protects prosecutors when they make
discretionary judgments, similar to those made by a judge, on the
basis of evidence presented to them. Id. at 423 n. 20. Judges
are accorded an absolute immunity for "acts committed within
their judicial jurisdiction" because it serves the public
interest to have judges who are at liberty to exercise their
functions with independence and without fear of consequences.
Id. at 418-19 n. 13 (internal citations omitted). Similarly, in
the prosecutorial context, absolute immunity: (1) allows
prosecutors to "focus their energies on prosecuting rather than
defending lawsuits;" (2) enables prosecutors to "exercise
independent judgment in deciding which suits to bring and
conducting them in court;" (3) preserves "the criminal justice
system's function of determining guilt or innocence by ensuring
that triers of fact are not denied relevant (although sometimes
conflicting) evidence because of prosecutors' fear of suit;" and
(4) ensures fairness to defendants "by enabling judges to make
rulings in their favor without the subconscious knowledge that
such ruling could subject the prosecutor to liability." Id.
Prosecutors who seek absolute immunity bear the burden of
proof. Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993).
Prosecutors enjoy a presumption of qualified rather than absolute
immunity. Id. at 268; Imbler, 424 U.S. at 430. Absolute
immunity only applies to a prosecutor's "special functions,"
i.e. those functions closely associated with the prosecutor's
duties as an advocate for the State. Id. The inquiry into which
functions are prosecutorial and thus immune focuses on the nature
of the function performed rather than the identity of the actor
who performed it. Buckley, 509 U.S. at 269. Nor should any
weight be given to prosecutorial intent in the immunity inquiry.
Ashelman v. Pope, 793 F.2d 1072, 1078 (9th Cir. 1986) (en
banc). The issue is not the harm that the conduct may have
caused, but the nature of the conduct for which immunity is claimed. Buckley, 509 U.S. at 271. So long as the prosecutor is
acting in his role as an advocate for the State, his actions are
protected, even if his actions are malicious or dishonest.
Imbler, 424 U.S. at 428.
It is well-established that a prosecutor is absolutely immune
for initiating a prosecution and presenting the State's case.
Id. at 431. In addition, a prosecutor is absolutely immune
when: deciding whether or not to prosecute, Roe v. City and
County of San Francisco, 109 F.3d 578, 583 (9th Cir. 1997);
preparing and filing an information and a motion for an arrest
warrant, Kalina v. Fletcher, 522 U.S. 118, 129 (1997);
preparing for trial, Broam v. Bogan, 320 F.3d 1023, 1028-29
(9th Cir. 2003); and appearing in court to argue a motion, Burns
v. Reed, 500 U.S. 478, 492 (1991). A prosecutor's immunized
duties will involve actions preliminary to the initiation of a
prosecution and acts apart from the courtroom. Imbler,
424 U.S. at 431 n. 33.
Moreover, a prosecutor is absolutely immune from claims that
the prosecutor failed to investigate the accusations against a
defendant before filing charges; for the knowing use of false
testimony at trial; and for deciding not to preserve or turn over
exculpatory material. See Broam, 320 F.3d at 1029-1030
(internal citations omitted) (summarizing several circuit court
opinions upholding absolute prosecutorial immunity in cases where
a prosecutor was sued for deliberately withholding exculpatory
evidence or using perjured testimony); see also Marlowe v.
Coakley, 404 F.2d 70, 70 (9th Cir. 1968) (holding that absolute
immunity barred appellant's Section 1983 claims against district
attorney and his assistants for knowingly and willfully
presenting perjured testimony to a grand jury); Atkins v.
Lanning, 556 F.2d 485, 488 (9th Cir. 1977) (holding a district
attorney was absolutely immune for his failure to verify that the
proper person was named in the indictment). Even though a
prosecutor's decision not to preserve or turn over exculpatory
material before or during trial, or after a conviction, violates
a criminal defendant's due process rights, such conduct is
nevertheless entitled to absolute immunity. See id. (citing
Brady v. Maryland, 373 U.S. 83, 97 (1963)). "To be sure, this
immunity does leave the genuinely wronged defendant without civil
redress against a prosecutor whose malicious or dishonest action
deprives him of liberty, but the alternative of qualifying a
prosecutor's immunity would disserve the broader public
interest." Imbler, 424 U.S. at 427. Here, Plaintiff's complaint alleges that Defendants violated
his constitutional rights when they filed a criminal complaint,
failed to research the law, and continued to prosecute Plaintiff
in spite of evidence that the 1977 injunction had been voided.
Although Plaintiff later states in his opposition to the motion
to dismiss that he was not suing "defendants for having
initiated a prosecution," but "because . . . they continued to
maintain their prosecution, even after dismissal of the action by
the Monterey County judge." (Opp. Br. at 6.) The inconsistency in
Plaintiff's allegations does not alter the analysis, as all of
Defendants' conduct which Plaintiff alleges violated his
constitutional rights, was squarely within a prosecutor's duties
to initiate a prosecution and to present the State's case.
Defendants' decision to continue litigating despite adverse
facts raised during the trial, and after an adverse decision from
the trial court were discretionary judgments made by Defendants
based on the evidence before them. Defendants' decision to
prosecute Plaintiff is absolutely immune because it was essential
to Defendants' execution of their duties as advocates for the
State. See Imbler, 424 U.S. at 424 ("A prosecutor is duty bound
to exercise his best judgment both in deciding which suits to
bring and in conducting them in court."). Likewise, researching
or failing to research the legal and factual claims raised by
Plaintiff during his criminal trial were protected prosecutorial
functions. See Broam, 320 F.3d at 1030.
Although Plaintiff in his Case Management Statement argues that
Defendants were acting "beyond the scope of [their]
litigation-related duties" in an investigative or administrative
capacity, the facts alleged in his complaint do not support this
contention. (Case Management Statement at 9.) A police officer
investigating a crime or an office administrator assisting with
the case would not have been responsible for filing the criminal
complaint, flushing out the validity of a defense presented
during a criminal trial, or for the decision to appeal an adverse
trial court decision. Each of Defendants' alleged actions about
which Plaintiff complains were intimately associated with the
judicial process, and therefore, cannot create a basis for
Section 1983 liability. See Imbler, 424 U.S. at 431. The
Section 1983 claim against assistant district attorneys Flippo,
Reed, and Ozgur is accordingly dismissed. The individual
defendants are dismissed with prejudice because any further
amendment would be futile. Plaintiff cannot set forth any facts
that would establish Defendants' liability for prosecuting Plaintiff.
B. Plaintiff Has Failed to State a Monell Claim Against
Defendant County of Monterey.
Plaintiff also names the County of Monterey as a defendant in
the complaint caption. Absent from the complaint, however, are
any specific allegations regarding how the County of Monterey
deprived Plaintiff of his constitutional rights such that they
could be subjected to suit under Section 1983. Although
Plaintiff's Case Management Statement contains legal analysis
regarding why "counties are not shielded by immunity," this
section of the statement fails to contain any factual allegations
pertaining to the County sufficient to withstand a motion to
dismiss. (Case Management Statement at 10.)
To the extent that Plaintiff advances a theory that the County
is liable pursuant to the actions of members of its District
Attorney's Office, a municipality cannot be found liable under
Section 1983 on a respondeat superior theory. See Monell v.
N.Y. Dept. of Soc. Serv., 436 U.S. 658, 694 (1978). Municipal
liability can be imposed only for injuries inflicted pursuant to
an official governmental policy or custom. Id. at 690-94. A
county can be found liable when execution of a county policy,
whether made by its lawmakers or those whose acts can be said to
represent official policy or custom of the county, inflicts the
injury. Id. at 694. While a single decision may satisfy
Monell's municipal policy requirement, that decision must have
been made by one of the municipality's authorized decisionmakers,
i.e. by an official who "possesses final authority to establish
municipal policy with respect to the challenged action." Pembaur
v. City of Cincinnati, 475 U.S. 469, 479-81 (1986).
To hold a local government liable for an official's conduct, a
plaintiff must first establish that the official (1) had final
policymaking authority concerning the action alleged to have
caused the particular constitutional or statutory violation at
issue and (2) was the policymaker for the local governing body
for purposes of the particular act. McMillian v. Monroe County
Alabama, 520 U.S. 781, 785 (1997). The Court in McMillian
instructed courts to look to state law to determine whether an
official is the policymaker for the local government or the state
for purposes of a particular act. Id. at 786. Applying the test
set forth by the Supreme Court in McMillian, the Ninth Circuit
has held that in California, a district attorney acts as a state official
and not a county official when he decides to proceed with a
criminal prosecution. Weiner v. San Diego County,
210 F.3d 1025, 1028 (9th Cir. 2000). Therefore, a Section 1983 claim
against the County here fails because the State, and not the
County, was the actor. See id. at 1031. Plaintiff cannot amend
his complaint to name the State as a defendant because states are
not persons within the meaning of Section 1983. See Will v.
Michigan Dept. of State Police, 491 U.S. 58, 71 (1989).
Accordingly, Plaintiff's Section 1983 claim against the County is
dismissed with prejudice.
To the extent Plaintiff alleges a state law claim against the
County under the California Tort Claims Act, the Court declines
to exercise supplemental jurisdiction over this claim in the
absence of a federal question claim. See United Mine Workers v.
Gibbs, 383 U.S. 715, 726 (1966).
For the foregoing reasons, the Court GRANTS Defendants' motion
to dismiss with prejudice. The Clerk is directed to close the
IT IS SO ORDERED.
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