United States District Court, N.D. California
PAUL S. DANIELS, et al., Plaintiffs,
ALAMEDA COUNTY, et al., Defendants.
ORDER RE: DEFENDANTS' MOTION TO DISMISS AND
STRIKE FIRST AMENDED COMPLAINT RE: DKT. NO. 54
JACQUELINE SCOTT CORLEY, UNITED STATES MAGISTRATE JUDGE.
Daniels and Nanette Dillard allege that they were prosecuted
by the Alameda County District Attorneys' Office in
retaliation for exercising their First Amendment rights. The
Court previously granted Defendants' motion to dismiss
Plaintiffs' Section 1983 malicious and retaliatory
prosecution claim because Plaintiffs had not plausibly
alleged that each defendant caused Plaintiffs'
prosecution or that there was an absence of probable cause
for their prosecution. (Dkt. No. 48.) In response to
Plaintiffs' First Amended Complaint, Defendants have
again moved to dismiss under Federal Rule of Civil Procedure
12(b)(6) and to strike the state law claims under California
Code of Civil Procedure § 425.16, the anti-Strategic
Lawsuits Against Public Participation (anti-SLAPP)
statute. (Dkt. No. 54.) Having considered the
parties' briefs and having had the benefit of oral
argument on November 21, 2019, the Court GRANTS
Defendants' motion to dismiss without leave to amend.
Plaintiffs have failed to cure the pleading defects in their
First Amended Complaint.
move to dismiss Plaintiffs' claims on multiple grounds.
The threshold question, however, is whether Plaintiffs have
adequately pled their malicious and retaliatory prosecution
Section 1983 claims and cured the pleading defects identified
in the Court's prior Order. Because they have not, the
Court need not and does not address Defendants' other
Section 1983 Malicious and Retaliatory Prosecution
prevail on a section 1983 malicious prosecution claim a
plaintiff must prove that criminal proceedings were
instituted with malice, without probable cause, and for the
purpose of denying the plaintiff a specific constitutional
right. Freeman v. City of Santa Ana, 68 F.3d 1180,
1189 (9th Cir. 1995). The claim “requires ‘the
institution of criminal proceedings against another who is
not guilty of the offense charged' and that ‘the
proceedings have terminated in favor of the
accused.'” Lacey v. Maricopa Cty., 693
F.3d 896, 919 (9th Cir. 2012) (quoting Restatement (Second)
of Torts § 653 (1977)). A Section 1983 retaliatory
prosecution claim requires a showing of a
“‘retaliatory motive on the part of an official
urging prosecution combined with an absence of probable cause
supporting the prosecutor's decision.'”
Beck v. City of Upland, 527 F.3d 853, 865 (9th Cir.
2008) (quoting Hartman v. Moore, 547 U.S. 250, 265
Court's prior order examined Plaintiffs' malicious
and retaliatory prosecution claims in detail. The claims were
dismissed because (1) Plaintiffs had not adequately tied
their allegations to misconduct by any particular defendant,
and (2) Plaintiffs had not adequately alleged an absence of
probable cause. The same defects remain.
Allegations Tying Defendants to the Prosecution
state either a malicious or retaliatory prosecution claim,
Plaintiffs must allege facts that support a plausible
inference that each defendant “improperly exerted
pressure on the prosecutor, knowingly provided misinformation
to him, concealed exculpatory evidence, or otherwise engaged
in wrongful or bad faith conduct that was actively
instrumental in causing the initiation of legal
proceedings.” Awabdy v. City of Adelanto, 368
F.3d 1062, 1067 (9th Cir. 2004); see also Beck, 527
F.3d at 865 (holding that a retaliatory prosecution claim
requires a showing of a “retaliatory motive on the part
of an official urging prosecution combined with an absence of
probable cause supporting the prosecutor's
decision”); Leer v. Murphy, 844 F.2d 628, 633
(9th Cir. 1988); see also Gressett v. Contra Costa
Cty., No. C-12-3798 EMC, 2013 WL 2156278, at *15 (N.D.
Cal. May 17, 2013) (the plaintiff must “plead
sufficient facts to hold each Individual Defendant liable for
amended complaint fails allege facts sufficient to show that
each of the named defendants-Alameda County, the Alameda
County Auditor-Controller Agency, the Alameda County Board of
Supervisors, Nate Miley, Scott Haggerty, and Patrick
O'Connell-“engaged in wrongful or bad faith conduct
that was actively instrumental in causing the initiation of
legal proceedings.” Awabdy, 368 F.3d at 1067.
With respect to Defendants Miley and Haggerty, Plaintiffs (1)
quote a news article stating that “Scott Haggerty says
he has spoken to the District Attorney's office about a
criminal investigation into Dillard's involvement in
allegedly bilking ACAP, ” and (2) allege that
“Miley and Haggerty were both exerting political
pressure upon the District Attorney's Office to find
something for which Dillard could be prosecuted.” (FAC
at ¶ 18.) The “mere allegation” that Mr.
Haggerty had a conversation with the District Attorney a year
before Plaintiffs was charged does not plausibly suggest that
the District Attorney brought the charges because of
what Mr. Haggerty said. See Bala v. Stenehjem, 671
F.Supp.2d 1067, 1096 (D.N.D. 2009) (“the mere
allegation that former United States Attorney Wrigley met
with law enforcement officials, state authorities, and the
IRS does not suggest plausible illicit activity.”).
Similarly, the “bare allegation” that Mr. Miley
and Mr. Haggerty were exerting political pressure on the
District Attorney to bring charges is a conclusory statement
that is “little more than a formulaic recitation of the
elements.” Ashcroft v. Iqbal, 556 U.S. 662,
681 (2009); see also Riley v. City of Richmond, No.
C 13-4752 MMC, 2014 WL 1101036, at *2 (N.D. Cal. Mar. 18,
2014) (finding that “plaintiff's conclusory
allegations that ‘the case lacked probable cause for
prosecution'  and that defendants ‘provided
misinformation' to and ‘concealed exculpatory
evidence' from the prosecutor , are insufficient as a
matter of law”).
have Plaintiffs included specific allegations which tie
Alameda County, the Alameda County Board of Supervisors, the
Alameda County Auditor-Controller Agency, and Patrick
O'Connell to the alleged wrongful prosecution. Indeed,
for Defendants the Alameda County Auditor-Controller Agency
and Patrick O'Connell, the only allegation as to them has
nothing do with the District Attorney and instead is that
they “created a fraudulent accounting purporting to
verify that ACAP lacked funds to go forward” so that
Mr. Miley and Mr. Haggerty could dismantle ACAP and dismiss
all its employees including Mr. Daniels. (FAC at ¶ 17.)
Similarly, while there are numerous allegations with respect
to Alameda County and the Alameda County Board of
Supervisors, there are no allegations which tie these
entities' actions to Plaintiffs' prosecution except
for the allegation that an “Alameda County
representative” threatened Ms. Dillard at the mediation
of her Brown Act case that if she did not refund the
settlement payment she and Mr. Daniels would be prosecuted.
(FAC at ¶ 27.) This vague allegation that an unnamed
Alameda County representative threatened Ms. Dillard does not
plausibly support an inference that the Alameda County Board
of Supervisors or Alameda County caused the District
Attorney's Office to bring charges two weeks later-two
months before the Brown Act case settled.
(Id. at ¶ 29.)
have therefore again failed to allege a plausible basis for
liability as to any Defendant.
Absence of Probable Cause
plaintiff alleging a retaliatory prosecution must show the
absence of probable cause for the underlying criminal charge.
If there was probable cause, the case ends.” Lozman
v. City of Riviera Beach, Fla., 138 S.Ct. 1945, 1952
(2018) (citing Hartman v. Moore, 547 U.S. 250,
265-66 (2006)); see also Nieves v. Bartlett, 139
S.Ct. 1715, 1726 (2019) (“It has long been
“settled law” that retaliatory prosecution
requires proving “the want of probable cause”).
The same probable cause analysis applies to a section 1983
malicious prosecution claim. See Awabdy, 368 F.3d at
1066 (“to prevail on a § ...