FINDINGS AND RECOMMENDATIONS
Plaintiff, proceeding pro se, is suing for money damages for alleged violations of his constitutional rights arising out of his prosecution for a charge of sexual activity with a minor.*fn1
Presently pending are three motions to dismiss plaintiff's complaint*fn2 , submitted for decision on the papers on January 29, 2009. Dckt. Nos. 7, 9, 21, 33. For the following reasons, this court recommends that the motions be granted in part.
Plaintiff filed this action for damages following a decision of the California Court of Appeal, First Appellate District, reversing plaintiff's conviction on a charge of sexual misconduct with a minor for failure of the trial court to give a unanimity instruction to the jury. Dckt. No. 1. Plaintiff seeks damages only, for the alleged violation of his civil rights associated with his conviction, confinement, medical care while incarcerated and required registration as a sex offender.
The complaint (which is more than 150 pages in length, including exhibits) is hardly a model of clarity. It fails to conform to the pleading requirements of Fed. R. Civ. P. 8, as it lacks a straightforward and complete statement of the pertinent facts, and the legal claims fail generally to identify the defendants to whom the claims are directed. Although no specific cause of action is identified, it appears from the complaint that plaintiff is attempting sue under 42 U.S.C. § 1983 for alleged violations of his constitutional rights and the complaint will be construed accordingly. Nonetheless, the complaint is both vague and rambling. Particularly lacking is a coherent chronology explaining plaintiff's repeated reference to his "three trials." The following facts are therefore pieced together from the complaint, the motions to dismiss and plaintiff's oppositions and additional exhibits. The court has attempted to match the appropriate defendants to the proper claims.
On March 24, 2004, in Solano County Superior Court, plaintiff was charged with four counts of sexual misconduct with a minor. See Felony Complaint, People v. Navarro, Solano County Superior Court Case No. FCR 214694 (Ex. A to Defendants' Request for Judicial Notice, Dckt. No. 7).*fn3 On February 6, 2006, plaintiff was convicted by a jury of only one count, violation of California Penal Code § 288(c)(1) (lewd act on a minor 14 or 15 years of age). Id., Ex. B. On March 13, 2006, plaintiff appealed the conviction. Id., Ex. C. On October 9, 2007, the California Court of Appeal, First Appellate District, reversed the conviction on the ground that the trial court had prejudicially erred in failing to give an unanimity instruction to the jury, requiring the jury to agree upon a specific act underlying the conviction rather than a continuous course of conduct. Id., Ex. D (People v. Navarro, California Court of Appeal, First Appellate District Case No. A113201; see also People v. Navarro, 2007 WL 2923974 at *8 (Cal. App. 1 Dist. October 9, 2007)).*fn4
Plaintiff served time in prison and was released around August or September 2007.*fn5
Dckt. No. 22 at 9. At some point in this time period Solano County Superior Court refused to hear plaintiff's habeas petition. Compl. at 32.
Plaintiff was retried in March 2008. Compl. at 3. The court assumes it was solely on the § 288(c)(1) charge and that the jury deadlocked, as a third trial was held in May 2008. Id. In that third trial the jury deadlocked on the single charge under § 288(c)(1), and the District Attorney's office dismissed the case in the interest of justice. Dckt. No. 31 at 6.
On August 8, 2008, in compliance with the California Tort Claims Act, plaintiff filed a claim with the California Victim Compensation and Government Claims Board. By letter dated September 2, 2008, plaintiff was informed that his claim would be placed on the Board's consent agenda. On October 23, 2008, the Board rejected plaintiff's claim and stated: "Board staff believes that the court system is the appropriate means for resolution of these claims, because the issues presented are complex and outside the scope of analysis and interpretation typically undertaken by the Board." Compl. at 150.
Thereafter, plaintiff filed the instant suit alleging that the Solano County District Attorney's office secured plaintiff's criminal conviction by knowingly relying on false or misleading evidence, including the allegedly perjured testimony of Vacaville Police Officers Donaldson and Datzman; that plaintiff was wrongly incarcerated and, while incarcerated, denied adequate medical care, causing plaintiff pain and suffering, including a heart attack shortly after his release; that plaintiff was subjected to unreasonable and vague parole conditions; and that plaintiff's name was improperly and incorrectly placed on the state's Sex Offender Registry, and not promptly removed from the registry at the appropriate time. Plaintiff claims multiple violations of his civil rights and seeks $459,000 in compensatory damages, $3,000,000 in general damages and punitive damages.
Motions to dismiss the complaint have been filed by all of the named defendants, as follows: (1) County of Solano, Solano County District Attorney David Paulson and Solano County Deputy District Attorney Julie Underwood ("Solano County Defendants"), Dckt. No. 7; (2) City of Vacaville, Vacaville Police Department, Vacaville Police Chief Richard Word and Vacaville Police Officers Raye Donaldson and Jeffrey Datzman ("Vacaville City Defendants"), Dckt. No. 9; and (3) State of California; California Governor Arnold Schwarzenegger, California Department of Justice; California Attorney General Edmund G. Brown, Jr.; California Department of Corrections, and its Secretary, Matthew Cate; and California Board of Prison Terms, and its Chairman, Robert Doyle ("State Defendants"), Dckt. No. 21.*fn6
In order to survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than a "formulaic recitation of the elements of a cause of action"; it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007). "The pleading must contain something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id. (quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004)). "[A] complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, __ U.S. __, 129 S.Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id.
In considering a motion to dismiss, the court must accept as true the allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hosp. Trs., 425 U.S. 738, 740 (1976), construe the pleading in the light most favorable to the party opposing the motion and resolve all doubts in the pleader's favor. Jenkins v. McKeithen, 395 U.S. 411, 421, reh'g denied, 396 U.S. 869 (1969). The court will "'presume that general allegations embrace those specific facts that are necessary to support the claim.'" Nat'l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 256 (1994) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)). Moreover, pro se pleadings are held to a less stringent standard than those drafted by lawyers. Haines v. Kerner, 404 U.S. 519, 520 (1972).
The court may consider facts established by exhibits attached to the complaint. Durning v. First Boston Corp., 815 F.2d 1265, 1267 (9th Cir. 1987). The court may also consider facts which may be judicially noticed, Mullis v. U.S. Bankr. Ct., 828 F.2d 1385, 1388 (9th Cir. 1987), and matters of public record, including pleadings, orders, and other papers filed with the court, Mack v. South Bay Beer Distribs., 798 F.2d 1279, 1282 (9th Cir. 1986). The court need not accept legal conclusions "cast in the form of factual allegations." W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
A pro se litigant is entitled to notice of the deficiencies in the complaint and an opportunity to amend, unless the complaint's deficiencies could not be cured by amendment. See Noll v. Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987).
As a threshold matter, plaintiff's conviction was reversed on appeal. Thus, this lawsuit generally meets the criteria for pursuing a civil rights action based upon the overturned conviction, its prosecution, plaintiff's incarceration and other allegedly related injuries. "[I]n order to recover damages for allegedly unconstitutional conviction or imprisonment, or for other harm caused by actions whose unlawfulness would render a conviction or sentence invalid, a § 1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).
Plaintiff alleges that Solano County District Attorney David Paulson and Solano County Deputy District Attorney Julie Underwood (the attorney who prosecuted plaintiff) improperly pursued charges in all three trials against him. Compl. at 4-5. Plaintiff states that the defendants should have known that a unanimity instruction was required. He also claims that these defendants presented perjured testimony, knowingly turned over false evidence in discovery and aided the mother of the victim in a civil case. Compl. at 4-5, 8; Dckt. No. 17 at 22. It appears that plaintiff alleges his Due Process rights were violated as well as the Double Jeopardy clause of the Fifth Amendment. Compl. at 32, 36-37. Plaintiff contends that these district attorney defendants acted outside the scope of their professional duties, thus shedding the protection of absolute prosecutorial immunity. Compl. at 4-5. Plaintiff also names Solano County as a defendant because the Solano County Superior Court did not hear plaintiff's habeas case.*fn7
Defendants Paulson and Underwood argue that claims against them should be dismissed with prejudice because they are immune from liability. "Prosecutors are absolutely immune from liability under § 1983 for their conduct insofar as it is 'intimately associated' with the judicial phase of the criminal process." Botello v. Gammick, 413 F.3d 971, 975 (9th Cir. 2005); Burns v. Reed, 500 U.S. 478, 486 (1991). Prosecutors are fully protected by absolute immunity when performing traditional activities related to the initiation and presentation of criminal prosecutions. Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976); Botello, 413 F.3d at 976 (it is "well established that a prosecutor has absolute immunity for the decision to prosecute a particular case."). Thus, even claims of malicious prosecution, falsification of evidence, coercion of perjured testimony and concealment of exculpatory evidence will be dismissed on grounds of prosecutorial immunity. See Stevens v. Rifkin, 608 F. Supp. 710, 728 (N.D. Cal. 1984). However, this immunity protects prosecutor only when acting in their roles in the initiation and presentation of criminal prosecutions. Thus, in Ewing v. City of Stockton, __ F. 3d __ , 2009 WL 4641736 (9th Cir. Dec. 9, 2009), the Ninth Circuit emphasized that prosecutors are only entitled to qualified immunity, not absolute immunity, when advising police in an investigation. Id. at * 12-13.
Here, plaintiff alleges that prosecutors Paulson and Underwood engaged in the following conduct for which they should not be immune: (1) not giving a unanimity instruction; (2) presenting perjured testimony; (3) Underwood was in contact with the victim's mother regarding a civil case; and (4) turning over backdated emails. Judges instruct juries, not the attorneys. Construing plaintiff's allegation to be that the prosecutors failed to ask for a unanimity instruction, the failure to seek a particular jury instruction is clearly part of the judicial proceedings and the defendants are entitled to absolute immunity. The same is true as to the allegations of perjured testimony. The presentation of witnesses and the direct and cross-examination of witnesses are acts plainly within the role of prosecutors as participants in the judicial proceedings and plaintiff's claims in this regard are barred by absolute prosecutorial immunity.
Plaintiff notes that defendant Underwood was in contact with the mother of the victim regarding a civil matter against plaintiff. Dckt. No. 17 at 22. The exact nature of Underwood's contact with the mother of the victim and the scope of the time period is difficult to discern from plaintiff's pleadings, though it seems to have involved obtaining a restraining order and also a deposition.*fn8 Dckt. No. 17 at 22, 66. Neither of these allegations articulate facts or specific conduct that deprived plaintiff of a federally-protected right.
Plaintiff also alleges that defendants Paulson and Underwood turned over emails during discovery that they knew were backdated. Yet, it is not clear from plaintiff's complaint at what point in the investigation the backdating occurred or if these defendants were even involved in the backdating.*fn9 The allegation that discovery was turned over in the course of the prosecution of the criminal case that was altered in some way asserts conduct that was performed within the course of the judicial proceeding and is not adequate to overcome absolute immunity. To be sure, there are remedies and sanctions that pertain to such conduct, when it actually occurs, but an action for damages under Section 1983 is not among them.
Plaintiff's claims against Paulson and Underwood, as currently drafted, are barred by the doctrine of absolute prosecutorial immunity. A review of plaintiff's pleadings*fn10 indicates that the conduct plaintiff describes was associated with the judicial phase of the proceedings. However, to the extent it might be possible for plaintiff to articulate facts showing that Underwood's alleged contact with the mother of the victim and the alleged backdating of emails occurred during the police investigation and outside to scope of the judicial proceedings only qualified immunity rather than absolute immunity would apply. Ewing, 2009 WL 4641736 (9th Cir. Dec. 9, 2009). Because the complaint contains no such allegation and it is unclear whether plaintiff could allege such facts, the court does not separately analyze qualified immunity. However, plaintiff will be given an opportunity to amend his complaint.
There are other flaws in the complaint as it pertains to the county defendants. To state a claim against Solano County under § 1983, plaintiff must allege facts to support a violation of his constitutional rights pursuant to a policy or custom of the municipality. Cortez v. County of Los Angeles, 294 F.3d 1186, 1188 (9th Cir. 2001) (citing Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690-91 (1978)). A plaintiff cannot therefore state a § 1983 claim against a municipal defendant unless he alleges that the municipal defendant maintained a policy or custom pertinent to the plaintiff's alleged injury and explains how such policy or ...