United States District Court, N.D. California
ORDER DISMISSING COMPLAINT
PHYLLIS J. HAMILTON, UNITED STATES DISTRICT JUDGE
October 3, 2016, plaintiff Nathaniel Dale Duffy filed the
complaint in the above-entitled action, against defendants
Alameda County District Attorney's Office, Alameda County
District Attorney Nancy E. O'Malley, and Assistant
District Attorney Annie Esposito, alleging constitutional
claims in connection with his arrest and the criminal charges
asserted against him in June 2016 by the Alameda County
District Attorney's Office.
complaint, plaintiff alleges violation of 42 U.S.C. §
1983, and claims of "abuse of process, "
"equal protection, " "perjury, " and
"double jeopardy." He asserts that defendants'
“office” charged him with carrying a concealed
weapon in violation of California Penal Code §
25400(a)(1), which statute he claims is unconstitutional;
that the Alameda County Sheriff's Department initially
“arrested and charged” him with three
misdemeanors, but that defendants later "turned them
into multiple felonies, " which he asserts constituted
abuse of process and/or malicious prosecution; that
defendants' “office” violated his equal
protection rights by charging him with multiple felonies
while "financially reward[ing] citizens for the
transport, possession in a vehicle, and sale of any type of
firearm;" that “defendant(s)” engaged in
perjury by providing "false information on court
documents" - specifically in the criminal complaint -
which contradicts information in the police report; and that
“defendant(s)” violated the "multiple
punishment protection of the double jeopardy clause" by
charging him with multiple felonies for the same alleged
crime. Plaintiff seeks damages - "[p]unitive,
declarative [sic], $200000 for emotional damages, loss of
wages, forced debt, and loss of future income."
October 3, 2016, plaintiff also filed a request for leave to
proceed in forma pauperis (“IFP”). On December 7,
2016, the court issued an order granting the IFP request,
staying the case pending resolution of the ongoing criminal
prosecution against plaintiff, and advising plaintiff that
once the stay was lifted, the complaint would be subject to
dismissal pursuant to 28 U.S.C. § 1915(e) for failure to
state a claim. The court directed plaintiff to file a
statement no later than June 7, 2017, regarding the status of
his criminal case.
8, 2017, plaintiff filed a statement indicating that in
December 2016, he had entered a plea of “No
Contest” to the charge of misdemeanor violation of
California Health & Safety Code § 11377 (possession
of a controlled substance). He asserts that all other charges
on the docket for Alameda County Superior Court Case No.
154384 were dismissed. He also states that he was placed on
misdemeanor probation for three years.
court explained in the December 7, 2016, order, when a
complaint is filed IFP, it must be dismissed prior to service
of process if it is frivolous or malicious, fails to state a
claim upon which relief may be granted, or seeks monetary
damages against defendants who are immune from suit. 28
U.S.C. § 1915(e)(2); see also Franklin v.
Murphy, 745 F.2d 1221, 1226-27 (9th Cir. 1984). Here,
the court finds that the complaint must be dismissed because
it seeks monetary damages against defendants who are immune
the defendants are immune from suit under the Eleventh
Amendment to the United States Constitution. Title 42 U.S.C.
§ 1983 creates a private right of action against
individuals who, acting under color of state law, violate
federal constitutional or statutory rights.”
Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir.
2001). Section 1983 “is not itself a source of
substantive rights, but merely provides a method for
vindicating federal rights elsewhere conferred.”
Graham v. Connor, 490 U.S. 386, 393-94 (1989).
“To establish § 1983 liability, a plaintiff must
show both (1) deprivation of a right secured by the
Constitution and laws of the United States, and (2) that the
deprivation was committed by a person acting under color of
state law.” Tsao v. Desert Palace, Inc., 698
F.3d 1128, 1138 (9th Cir. 2012).
cities, counties, and local officers sued in their official
capacity are “persons” for purposes of section
1983, see McMillian v. Monroe County, 520 U.S. 781,
784-785 (1997), states and state officers sued in their
official capacity are not considered “persons”
under § 1983 and are immune from liability under the
statute by virtue of the Eleventh Amendment and the doctrine
of sovereign immunity, Howlett v. Rose, 496 U.S.
356, 365 (1990). The Eleventh Amendment grants sovereign
immunity from civil rights suits under § 1983 to each of
the 50 states and also to state officers; this is because a
suit against a state officer is no different from a suit
against the state itself. U.S. Const. Amend. 11; 42 U.S.C.
§ 1983. In California, district attorneys represent the
state “when they prepare to and prosecute crimes,
train, and develop policies for prosecutorial staff in the
area of criminal investigation and prosecution.”
See Pitts v. County of Kern, 17 Cal.4th 340, 354,
addition, to the extent that plaintiff seeks damages against
the District Attorney and the Assistant District Attorney for
prosecuting him on criminal charges, they are absolutely
immune from suit under the doctrine of prosecutorial
immunity. See Ashelman v. Pope, 793 F.2d 1072, 1077
(9th Cir. 1986) (“Where a prosecutor acts as an
advocate ‘in initiating a prosecution and in presenting
the state's case, ' absolute immunity applies”)
(quoting Imbler v. Pachtman, 424 U.S. 409, 431
Attorneys are entitled to absolute prosecutorial immunity for
conduct that is “intimately associated with the
judicial phase of the criminal process.” Van de
Kamp v. Goldstein, 555 U.S. 335, 341 (2009).
“[A]cts undertaken by a prosecutor in preparing for the
initiation of judicial proceedings or for trial, and which
occur in the course of his role as an advocate for the state,
are entitled to the protections of absolute immunity.”
Buckley v. Fitzsimmons, 509 U.S. 259, 274 (1993).
When prosecutorial immunity applies, a plaintiff's claims
are barred, even if it leaves the plaintiff “without
civil redress against a prosecutor whose malicious or
dishonest actions deprives him of liberty.”
Imbler, 424 U.S. at 431.
from the fact that defendants are immune from suit, the court
finds that the complaint fails to state a claim as to any of
the constitutional violations asserted. The complaint fails
to state a claim for violation of the Equal Protection Clause
because plaintiff has not alleged facts showing that
defendants acted with an intent or purpose to discriminate
against him based upon his membership in a protected class.
See Serrano v. Francis, 345 F.3d 1071, 1082 (9th
Cir. 2003); see also Rosenbaum v. City & Cnty of
S.F.¸ 484 F.3d 1142, 1152 (9th Cir. 2007). The
complaint fails to state a claim for violation of the Double
Jeopardy Clause because it does not allege facts showing that
plaintiff suffered multiple criminal punishments for the same
offense. See Hudson v. U.S., 522 U.S. 93, 98-99
(1997). Finally, the complaint alleges no facts sufficient to
state a claim of malicious prosecution. See Lacey v.
Maricopa Cnty, 693 F.3d 896, 919 (9th Cir. 2012).
the claim of “perjury, ” while perjury is a
federal crime, see 18 U.S.C. § 1621, there is
no private right of action which would enable plaintiff to
assert this claim in a civil lawsuit. “[P]rivate rights
of action to enforce federal law must be created by Congress,
” and without a congressional intent to create a
private remedy, “a cause of action does not exist and
courts may not create one.” Alexander v.
Sandoval, 532 U.S. 275, 286-87 (2001); see also
Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir.1980)
(criminal statutes “provide no basis for civil
the court previously indicated in the December 7, 2016, order
that any dismissal would be with leave to amend, the court
has now more carefully considered the allegations in the
complaint and the applicable doctrines of immunity, and finds
that because defendants are absolutely immune from suit,