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Lininger v. Pfleger

United States District Court, N.D. California

November 6, 2017

RONALD PFLEGER, et al., Defendants.



         In this 42 U.S.C. § 1983 case, Plaintiff Stacy Lininger (“Plaintiff”) alleges in relevant part that Defendant Dean Flippo, the District Attorney for Monterey County, California, initiated a malicious prosecution against her in violation of the Fourth and Fourteenth Amendments. ECF 1 (“Compl.”). In the motion before the Court, Defendant Flippo moves to dismiss Plaintiff's cause of action against him on the grounds that Plaintiff lacks standing to seek injunctive relief and that any claim against him is barred by prosecutorial immunity. ECF 11. The Court held a hearing on October 24, 2017. Having considered the submissions of the parties, the relevant law, and the arguments presented, the Court grants Flippo's motion with leave to amend in part for the reasons below.


         a. 2014-2015 Events

         For purposes of this motion, the Court accepts the facts in the Complaint as true and also considers facts as submitted in Defendant's request for judicial notice.[1] In 2014, Plaintiff was prosecuted for calling police repeatedly pursuant to California Penal Code 653m(a) (making annoying or harassing phone calls). Plaintiff pled nolo contendere. Plaintiff was placed on probation for two years and ordered to obey all laws, not commit a similar offense, and “not annoy, harass or dial 911 without a true, valid and legitimate emergency.” She was also ordered to “not dial 911 repeatedly.” ECF 11-1 at 5-6.

         In January 2015, Plaintiff was working as a teacher in a program for juvenile offenders. Compl. at ¶ 2. One of her male students informed her that during a routine traffic stop, a Carmel Police officer had touched him inappropriately. Id. Plaintiff made a report of a child abuse incident to her employer/supervisor. Compl. at ¶ 3. She also called and made a report to the Carmel Police Department. Id. The officer who took Plaintiff's report was Defendant Ronald Pfleger. Plaintiff heard nothing more about the incident for several months. Compl. at ¶ 4. Beginning on Friday, June 26, 2015 through Sunday, June 28, 2015, Plaintiff placed approximately 18-20 phone calls to the Carmel Police Department to follow up on her earlier report. ECF 11-1 at 10.

         b. State Criminal Proceedings

         The State filed two charges arising out of Plaintiff's June 2015 calls. The first case sought revocation of Plaintiff's 2014 probation for violation of conditions, including making harassing calls to 911, or alternatively, violating the law by violating California Penal Code 653m (making annoying phone calls as defined by the statute) (Case No. MS317393A). The second charged a violation of California Penal Code 653m(a) (Case No. MS333633A). ECF 11-1 at 9.

         In January 2017, after a revocation hearing in Case No. MS317393A, the state court ruled that Plaintiff had not violated her conditions of probation. First, the court found that Plaintiff did not make calls to 911, but rather dialed the non-emergency 911 number. ECF 11-1 at 14. Second, in analyzing whether Plaintiff violated section 653m(b), the court found that even though Plaintiff did make repeated calls, she did not do so with specific intent to annoy or harass as the statute requires. ECF 11-1 at 17-18. Finally, the court concluded that the calls were made in good faith, which is protected by the statute. ECF 11-1 at 18. In May 2017, the State dismissed the second case charging a violation of California Penal Code 653m(a). Compl. at ¶ 14.

         c. Plaintiff's Complaint and Defendant's Motion to Dismiss

         Plaintiff now brings a complaint against a Carmel Police Department officer Roger Pfleger, the City of Carmel, and the Monterey County District Attorney, Dean Flippo. Plaintiff asserts three causes of action under 42 U.S.C. § 1983: 1) Against Defendant Pfleger for retaliation in violation of the First Amendment; 2) Against the City of Carmel for retaliation in violation of the First Amendment; and 3) Against Defendant Flippo for malicious prosecution in violation of the Fourth and Fourteenth Amendment. Plaintiff apparently seeks damages only for the first two causes of action for retaliation.[2] Compl. at ¶¶ 37, 38, 44. Plaintiff requests injunctive relief for her malicious prosecution claim.

         Plaintiff's complaint alleges that Defendant Flippo “willfully, maliciously, in bad faith, and in reckless disregard of Plaintiff's federally protected constitutional rights” instituted a criminal proceeding for “making harassing telephone calls against Plaintiff without probable cause.” Compl. at ¶¶ 49-50, 58. More specifically, Plaintiff alleges that Flippo brought the case for the purpose of “punishing Plaintiff for the exercise of her First Amendment rights when she took Carmel police department officers to task for their misdeeds and malfeasance.” Compl. at ¶ 56. Plaintiff further alleges that Defendant Flippo acted pursuant to office policy or practice to “steadfastly defend[] the interests of law enforcement against challenges by private citizens.” Compl. at ¶52. Plaintiff alleges that the “criminal proceedings terminated in Plaintiff's favor.” Compl. at ¶ 51. Plaintiff alleges that she “suffered” from the alleged malicious prosecution and that the harm did not end until Case No. MS333633A against her was dismissed. Compl. at ¶¶ 14, 62. She goes on to alleged that she “suffered and others suffer wrongful prosecution for the exercise of First Amendment rights in Monterey County” and that a permanent injunction is necessary to “prevent the chilling effect these policies and practices have upon the rights of Monterey County citizens to police their police.” Compl. at ¶¶ 62, 64.

         Defendant Flippo filed his motion to dismiss on August 11, 2017.[3] ECF 11. Defendant Flippo argues that Plaintiff does not have standing to seek injunctive relief for her malicious prosecution claim because she has failed to plead facts that demonstrate a real and immediate threat of injury. ECF 11 at 9-10. Defendant also argues that the suit should be barred by prosecutorial immunity (ECF 11 at 10) and that the injunctive relief that Plaintiff seeks would violate the principles of comity and federalism (ECF 28 at 8). The Court agrees that Plaintiff does not have standing to obtain injunctive relief for malicious prosecution under § 1983. The Court also finds that Defendant Flippo is immune from suit in his official capacity and in so finding does not reach Defendant's argument of comity.

         II. RULE 12(B)(6) STANDARD

         Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. To survive a motion to dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This “facial plausibility” standard requires the plaintiff to allege facts that add up to “more than a sheer possibility that a defendant has acted unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662 (2009). In deciding whether the plaintiff has stated a claim, the court must assume the plaintiff's allegations are true and draw all reasonable inferences in the plaintiff's favor. Usher v. City of L.A., 828 F.2d 556, 561 (9th Cir. 1987). However, the court is not required to accept as true “allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008). Leave to amend must be granted unless it is clear that the complaint's deficiencies cannot be cured by amendment. Lucas v. Dep't. of Corr., 66 F.3d 245, 248 (9th Cir. 1995).


         a. Legal Standard: Pleading a 1983 claim arising out of ...

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