Opinion
No. CIV. S-05-2270 WBS GGH.
March 24, 2006
MEMORANDUM AND ORDER RE: MOTION TO DISMISS
Plaintiffs Heather Marie Ewing and Mark Lee Ewing allege four causes of action against defendants: (1) direct violation of plaintiffs' constitutional rights, actionable under 42 U.S.C. § 1983, (2) violation of plaintiffs' constitutional rights through a custom or policy, also actionable under 42 U.S.C. § 1983, (3) negligence, and (4) negligent supervision. (Compl.) Pursuant to Federal Rule of Civil Procedure 12(b)(6), defendants San Joaquin County, San Joaquin County Sheriff's Department, District Attorney John D. Phillips, Deputy District Attorney Lester F. Fleming, and Investigator Vito Bertocchini now move for dismissal of the federal and state claims against them.
I. Factual and Procedural Background
On November 6, 2004, Mark Donahue died from a stab wound sustained in an altercation that took place outside a bar called Shakers in Stockton, California. (Compl. ¶ 11.) In connection with this death, the authorities initially sought two male members of the Jus Brothers motorcycle club in their 30's to late 40's and a female companion. (Id.) Following a brief investigation conducted along with the San Joaquin County Sheriff's Department and District Attorney's Office, officers of the Stockton Police Department arrested plaintiffs for Donahue's murder on November 8, 2004. (Id. ¶¶ 12, 15.)
Plaintiffs claim that throughout their detention, defendants were presented with, and failed to investigate, "significant, credible, and verifiable exculpatory evidence." (Id. ¶¶ 15, 17.) Specifically, plaintiffs point out that two men, Robert Memory and Frank Prater, admitted to being involved in the November 6th altercation with Donahue and voluntarily surrendered themselves to the police on November 12, 2004. (Id. ¶ 17.) They also allege that "Prater had previously, on November 10, 2004, attempted to surrender to the Police Department with counsel, but the Police Department refused to arrest him stating that they did not have an arrest warrant for him yet." (Id.) Plaintiffs, however, remained in custody with charges pending against them until November 15, 2004. (Id. ¶ 18.)
On January 31, 2006, defendants San Joaquin County, San Joaquin County Sheriff's Department, Phillips, Fleming, and Bertocchini moved to dismiss plaintiffs' complaint as to them for failure to state a cognizable claim. (Mem. of P. A. in Supp. of Defs.' Mot. to Dismiss 4.) The parties subsequently agreed to dismiss without prejudice plaintiffs' claims against the San Joaquin County Sheriff's Department. (Mar. 6, 2006 Dismissal by Stipulation.) Remaining before the court is defendants Phillips, Fleming, and Bertocchini's ("the DA Defendants") motion, in which they argue that plaintiffs fail to allege that the DA Defendants did anything besides initiate and present the State's case, which are protected activities for prosecutors. (Mem. of P. A. in Supp. of Defs.' Mot. to Dismiss 10.) Also still before the court is defendant San Joaquin County's motion to dismiss.
II. Discussion
A. Legal Standard
On a motion to dismiss, the court must accept the allegations in the complaint as true and draw all reasonable inferences in favor of the pleader. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Cruz v. Beto, 405 U.S. 319 (1972). The court may not consider material beyond the complaint, however, reliance on matters of public record is allowed. Mack v. S. Bay Beer Distribs., 798 F.2d 1279, 1282 (9th Cir. 1986), abrogated on other grounds by Astoria Fed. Sav. Loan Ass'n v. Solimino, 501 U.S. 104 (1991) (explaining that reliance on matters of public record "does not convert a Rule 12(b)(6) motion to one for summary judgment"). Dismissal is appropriate only when "it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Van Buskirk v. CNN, Inc., 284 F.3d 977, 980 (9th Cir. 2002) (emphasis added); see also Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
B. Inspector Bertocchini
In support of their motion to dismiss, the DA Defendants argue that they are entitled to either absolute or qualified immunity for their actions and those taken by Bertocchini, who allegedly assisted with efforts to gather facts in support of the search warrant issued for plaintiffs' residence and plaintiff Heather Ewing's person. Prosecutors and their investigators are only absolutely immune from suit for conduct `intimately associated with the judicial phase of the criminal process.'" KRL v. Moore, 384 F.3d 1105, 1113 (9th Cir. 2004);Demery v. Kupperman, 735 F.2d 1139, 1143 (9th Cir. 1984) (quoting Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). They are afforded mere qualified immunity when performing investigatory or administrative functions separate from their role as judicial advocates. Broam v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003) (citing Imbler, 424 U.S. at 430 and Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993)). Significantly, the Supreme Court has observed that "[a] prosecutor neither is, nor should consider himself to be, an advocate before he has probable cause to have anyone arrested." Buckley, 509 U.S. at 274.
The allegations in plaintiffs' complaint and the evidence plaintiffs submitted in support of their opposition to defendants' motion suggest that Bertocchini contributed in some manner to plaintiffs' arrest. (Compl. ¶ 12; Pls.' Req. for Judicial Notice Ex. A, 10 (search warrant and supporting affidavit).) In providing supplementary and collaborative information to police investigators, prior to any probable cause determination, Bertocchini was not acting as an advocate for the state in a judicial proceeding. The judicial phase of the criminal process was not even underway. Consequently, Bertocchini cannot claim absolute prosecutorial immunity for his contributions to the Stockton Police Department's initial investigation. See Spivey v. Robertson, 197 F.3d 772, 776 (5th Cir. 1999) (suggesting that prosecutors do not act as advocates when they "manufacture evidence for the police to place in an affidavit for probable cause").
The search warrant and supporting affidavit submitted by plaintiffs in opposition to this motion are public records which the court can consider on a motion to dismiss. People v. Jackson, 128 Cal. App. 4th 1009, 1022 (2005) (observing that California law "provides that the documents and records in an executed search warrant `shall be open to the public as a judicial record'" (quoting Cal. Penal Code § 1534(a))).
This leaves the possibility of qualified immunity. "Qualified immunity protects `all but the plainly incompetent or those who knowingly violate the law.'" Lee v. Gregory, 363 F.3d 931, 934-35 (9th Cir. 2004) (quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). In applying it, the court asks "(1) whether, `taken in the light most favorable to the party asserting the injury, the facts alleged show the officer's conduct violated a constitutional right'; and, if a violation of a constitutional right [can] indeed be found, (2) `whether the right was clearly established.'" Sissoko v. Rocha, 412 F.3d 1021, 1038 (9th Cir. 2005) (quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)).
Plaintiffs allege that Bertocchini, by providing misleading evidence to police investigators, interfered with their constitutional right to a reliable determination of probable cause before being arrested. (Compl. ¶ 14, 18.) Indeed, plaintiffs certainly have such a right. Baker v. McCollan, 443 U.S. 137, 142-43 (1979) ("By virtue of its `incorporation' into the Fourteenth Amendment, the Fourth Amendment requires the States to provide a fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty." (citing Gerstein v. Pugh, 420 U.S. 103, 125 (1975))). Additionally, taking the facts alleged in the complaint as true, the court cannot find beyond doubt that plaintiffs can prove no facts to establish that Bertocchini violated plaintiffs' constitutional rights by tainting the probable cause determination for the search warrant, the execution of which led to plaintiffs' arrests. Consequently, the court cannot at this time hold that Bertocchini's conduct did not violate plaintiffs' constitutional rights.
The court notes that plaintiffs' complaint simply alleges that "employees of the District Attorney's Office [were] responsible in some manner and fashion for the Plaintiffs' arrests and/or prolonged arrest and detention. . . ." (Compl. ¶ 12.) Seeded throughout the complaint, however, are allegations which, when read as a whole, further explain the basis for plaintiffs' claims. Significantly, plaintiffs allege that their arrests were based on insufficient evidence. (Id. ¶ 14.) These allegations sufficiently provide defendants with "fair notice of what the plaintiff[s'] claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47-48 (1957). Moreover, plaintiffs further explain in their opposition brief that they believe that defendant Bertocchini maliciously provided police investigators with misleading evidence that was later used to support the search warrant. (Pls.' Opp'n to Defs.' Mot. to Dismiss 4.)
Likewise, the court cannot at this stage determine whether it would have been "clear to a reasonable officer that [Bertocchini's] conduct was unlawful in the situation confronted." Brosseau v. Haugen, 543 U.S. 194, 199 (2004). The full extent of Bertocchini's conduct has not yet been described to the court and at the pleading stage, plaintiffs are not required to provide a detailed account. Morgan v. United States, 323 F.3d 776, 780 (9th Cir. 2003) (noting that courts do not apply a heightened pleading standard simply because the government asserts the defense of qualified immunity); see also Crawford-El v. Britton, 523 U.S. 574, 600 (1998) (observing that, even in cases where qualified immunity is at issue, "summary judgment serves as the ultimate screen to weed out truly insubstantial lawsuits prior to trial"); McKenna v. Wright, 386 F.3d 432, 434 (2d Cir. 2004) ("[A] qualified immunity defense can be presented in a Rule 12(b)(6) motion, but . . . the defense faces a formidable hurdle when advanced on such a motion. . . ."). Bertocchini's contributions to the initial investigation, in which he undisputedly played some part, could violate clearly established federal law under some circumstances. Consequently, the court cannot say that it is beyond doubt that plaintiffs can prove no set of facts in support of their claims which would entitle them to relief and Bertocchini is not entitled to dismissal based on qualified immunity at this time.
C. District Attorneys Phillips and Fleming
Plaintiffs appear to have two theories for the District Attorneys' § 1983 liability. First, plaintiffs posit that when he went forward with plaintiffs' arraignment, Fleming knowingly, or at least recklessly, relied on the allegedly false and misleading evidence supplied by Bertocchini. (Pls.' Opp'n to Defs.' Mot. to Dismiss 4.) For such acts, which are "intimately associated with the judicial phase of the criminal process," Fleming is absolutely immune. Imbler, 424 U.S. at 430; Burns v. Reed, 500 U.S. 478, 492 (1991) (holding that prosecutors are endowed with absolute immunity for pretrial court appearances "in support of taking criminal action against a suspect", even if the prosecutor's presentation to the court was false and/or misleading); see also Morley v. Walker, 175 F.3d 756, 760 (9th Cir. 1999) (stating in dicta that a prosecutor is absolutely immune for "fail[ure] to dismiss the charges after learning new information").
Second, plaintiffs argue that the prosecutors can be held accountable for Bertocchini's actions, as he was merely acting pursuant to orders from Fleming and Phillips. (Pls.' Opp'n to Defs.' Mot. to Dismiss 4, 7.) A supervisor cannot be held liable under § 1983 on a simple respondeat superior basis, absent a statute stating otherwise, and the parties have not addressed whether a relevant statute exists. Redman v. County of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991). However, supervisory liability can attach "if supervisory officials implement a policy so deficient that the policy `itself is a repudiation of constitutional rights' and is `the moving force of the constitutional violation.'" Because the court has rejected Bertocchini's request for immunity, it follows that Fleming and Phillips likewise cannot be absolved of liability as his supervisors at this early stage. Jackson v. City of Bremerton, 268 F.3d 646, 653 (9th Cir. 2001) (holding that a supervisor can only escape liability if plaintiff did not actually suffer a constitutional injury at the hands of his subordinate).
The court notes that supervisory liability is the only theory under which plaintiffs here can state a claim against the District Attorneys for Bertocchini's actions. Plaintiffs cannot bring a Monell claim based on allegations that Bertocchini deprived plaintiffs of their constitutional rights pursuant to a policy or custom of the District Attorney's Office. See Monell v. Dep't of Soc. Servs. of New York, 436 U.S. 658, 694 (1978). Such claims are available only against local government entities and, as explained in part II.D, the California District Attorneys represent the state, not their local county, when performing investigative and prosecutorial functions. See id. at 690 n. 54 ("Our holding today is, of course, limited to local government units. . . ."); Weiner v. San Diego County, 210 F.3d 1025, 1030-31 (9th Cir. 2000); Walker v. County of Santa Clara, No. 04-02211, 2005 WL 2437037, at *4 (N.D. Cal. Sept. 30, 2005) ("[A] district attorney also represents the state when training and developing policies related to prosecuting violations of state law.").
The DA Defendants did not brief whether plaintiffs have alleged cognizable state law claims for negligence and/or negligent supervision against them. These claims would not be covered by qualified immunity, because qualified immunity applies only to the federal claims. Foster v. McGrail, 844 F. Supp. 16, 29 (D. Mass. 1994). In the absence of arguments on this matter, the court declines to consider whether plaintiffs have stated viable claims against the DA defendants.
D. San Joaquin County
In the March 6, 2006 stipulation, plaintiffs stressed that their voluntary dismissal applied only to defendant San Joaquin County Sheriff's Department. The County, evidently, still remains a defendant in this case and a party to this motion.
Plaintiffs' § 1983 claim against the County appears to be based on the fact that the "employees of the Sheriff's Department and the District Attorney were employees of the County of San Joaquin. . . ." (Compl. ¶ 13.) These "employees" allegedly deprived plaintiffs of their constitutional rights pursuant to a policy or custom of the County. (Id. ¶¶ 28-29.) As plaintiffs have dismissed the Sheriff's Department and do not name any individual employees of the Department, the court assumes that plaintiffs intend to maintain their claims against the County based on its relationship with the District Attorney's Office.
However, plaintiffs' complaint misstates the relationship between the San Joaquin District Attorney and San Joaquin County. The Ninth Circuit has held, based on a detailed analysis of state law, that California District Attorneys, despite being named for particular counties, are state officers when investigating and prosecuting individuals in the name of the people of the state.Weiner, 210 F.3d at 1030-31 (observing that California Government Code § 25303 "precludes a county from obstructing `the investigative and prosecutorial function of the district attorney of a county'"); see also Pitts v. County of Kern, 17 Cal. 4th 340, 364 (1998) (holding that "the functions for which a prosecutor may obtain absolute, as opposed to qualified, immunity [do not] parallel those for which a district attorney represents the state, as opposed to the county"). Because the County did not have authority over the DA Defendants' activities, as described in plaintiffs' complaint, plaintiffs have failed to state a cognizable claim against the County. See Grech v. Clayton County, Ga., 335 F.3d 1326, 1330 (11th Cir. 2003) (holding that, to state a § 1983 claim against a local governmental entity for an unconstitutional policy or custom, "a plaintiff . . . must show that the local governmental entity, here the county, has authority and responsibility over the governmental function in issue").
III. Conclusion
While this motion was pending, plaintiffs voluntarily dismissed defendant San Joaquin County Sheriff's Department and opposed only defendants Phillips, Fleming, and Bertocchini's arguments in support of their motion to dismiss. As explained above, the court lacks sufficient facts to determine whether Bertocchini is immune from suit at this stage in the litigation. Phillips and Fleming, as Bertocchini's supervisors, likewise cannot be dismissed at this time. However, because the remaining defendants are not subject to the control of the County, the County cannot be held liable under § 1983 for promulgating a policy or custom that violated plaintiffs' constitutional rights.
IT IS THEREFORE ORDERED that
(1) defendants Phillips, Fleming, and Bertocchini's motion to dismiss this action as to them be, and the same hereby is, DENIED.
(2) defendant San Joaquin County's motion to dismiss plaintiffs' § 1983 claims as to it be, and the same hereby is, GRANTED.
(3) pursuant to the parties' March 6, 2006 stipulation, this action is hereby dismissed as against defendant San Joaquin County Sheriff's Department without prejudice, each party to bear its own costs.