NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 19 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JACK KIMM, No. 17-17316

Plaintiff-Appellant, D.C. No. 2:14-cv-01966-JWS

v.

MEMORANDUM*

MARTIN BRANNAN; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the District of Arizona John W. Sedwick, District Judge, Presiding

Argued and Submitted June 11, 2019 San Francisco, California

Before: GOULD, IKUTA, and R. NELSON, Circuit Judges.

In 2007, La Paz County Attorney Martin Brannan filed a criminal indictment

against Jack Kimm, charging multiple counts of forgery and perjury. La Paz

County investigator Frank Haws was the only witness in the grand jury

proceedings. The Arizona state court later dismissed the indictment without

prejudice because of a conflict of interest between Haws and the alleged victim,

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Rayburn Evans, who was the former La Paz County Sheriff. In 2009, Brannan’s

successor as La Paz County Attorney, Samuel Verderman, and deputy county

attorney, Thomas Jones, filed another indictment against Kimm based on the same

charges. The Arizona state court dismissed the indictment with prejudice.

Kimm then filed a civil case in the federal district court. The crux of the

complaint alleged that certain La Paz County employees conspired to prosecute

Kimm on criminal charges in retaliation for Kimm’s prior civil suit against Evans.

Kimm asserted several state and federal claims against Brannon, Verderman,

Jones, Haws, and Evans, along with two claims against La Paz County under

Monell v. Department of Social Services, 436 U.S. 658, 690–91 (1978). Kimm

appeals the district court’s dismissal of several of his claims under Rule 12(b)(6)

and the district court’s subsequent grant of summary judgment in favor of

defendants on the remaining claims.

1. The district court did not err by dismissing claims against Haws on the basis

of testimonial immunity. Kimm’s amended complaint alleged that Haws testified

before the grand jury without investigating the underlying claims, provided false or

misleading testimony, and conspired to provide false or misleading testimony.

Each of these acts falls squarely within the bounds of testimonial immunity under

settled law. Rehberg v. Paulk, 566 U.S. 356, 375 (2012); Lisker v. City of Los

2 Angeles, 780 F.3d 1237, 1241 (9th Cir. 2015); Franzi v. Koedyker, 758 P.2d 1303,

1306–08 (Ariz. Ct. App. 1985).

2. The district court did not err by dismissing claims against Brannan, Jones,

and Verderman on the basis of prosecutorial immunity. Kimm’s complaint alleged

that Brannan sought no outside investigation into Evans’s claims against Kimm,

presented false or misleading testimony to the grand jury, and did not present the

grand jury with exculpatory information. Kimm’s complaint alleges that

Verderman and Jones engaged in the same conduct, and further alleges that the two

conspired to do so. Each of the alleged acts upon which Kimm’s claims are based

is intimately associated with the judicial phase of the criminal process. For this

reason, the prosecutors are immune from suit arising from these actions. See

Imbler v. Pachtman, 424 U.S. 409, 430 (1976); Ashelman v. Pope, 793 F.2d 1072,

1078 (9th Cir. 1986) (en banc); Challenge, Inc. v. State, 673 P.2d 944, 948 (Ariz.

Ct. App. 1983).

3. The district court did not err in granting summary judgment to Evans on

Kimm’s malicious prosecution claim. To prevail on a malicious prosecution claim

under § 1983, a plaintiff “must show that the defendants prosecuted [the plaintiff]

with malice and without probable cause, and that they did so for the purpose of

denying [the plaintiff] equal protection or another specific constitutional right.”

Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir. 1995). Under Arizona

3 law, probable cause is a complete defense to a claim for malicious prosecution.

Bird v. Rothman, 627 P.2d 1097, 1100 (Ariz. Ct. App. 1981). The district court

correctly determined that the facts known to Evans—(1) that a forensic document

examiner had concluded that the signatures on four of the five contracts were

forged, and (2) that Kimm stated during his deposition that he witnessed Evans

sign the contracts—established probable cause to suspect Kimm forged the

signatures and lied about it under oath.

4. The district court did not err in granting summary judgment to Evans on

Kimm’s racketeering claims. Under both federal and Arizona law, a racketeering

claim requires the showing of a predicate unlawful act and a pattern of such

activity. 18 U.S.C. § 1961 et seq.; Ariz. Rev. Stat. § 13-2312. The district court

correctly concluded that there is no evidence in the record suggesting any unlawful

conduct on Evans’s part, much less a pattern of such activity.

5. The district court did not err in granting summary judgment to Evans on

Kimm’s abuse of process claims. To make out a prima facie claim for abuse of

process under Arizona law, Kimm must show “(1) a willful act in the use of

judicial process; (2) for an ulterior purpose not proper in the regular conduct of the

proceedings.” Nienstedt v. Wetzel, 651 P.2d 876, 881 (Ariz. Ct. App. 1982).

“Some definite act or threat not authorized by the process, or aimed at an objective

not legitimate in the use of the process, is required; and there is no liability where

4 the defendant has done nothing more than carry out the process to its authorized

conclusion, even though with bad intentions.” Joseph v. Markovitz, 551 P.2d 571,

574–75 (Ariz. Ct. App. 1976). The district court correctly concluded that there

was no genuine issue of material fact that Evans took any willful act other than

bringing criminal charges.

6. The district court did not err in dismissing Kimm’s Monell claim alleging a

custom or practice of bringing unfounded criminal charges against Evans’s

opponents. The district court correctly concluded that Kimm’s complaint did not

allege any facts to establish that such a custom or practice existed.

7. The district court dismissed Kimm’s Monell claim alleging final

policymaker liability without comment. We conclude that that claim requires more

analysis. Kimm alleged that Brannan and Verderman acted as final policymakers

for La Paz County when determining whether to initiate the criminal proceedings

against Kimm as well as in determining the manner in which to pursue the case.

Kimm also alleged that Brannan and Verderman pursued the case without

sufficient investigation and presented the case in a misleading manner to the grand

jury. Kimm also alleged that Verderman conspired with others to pursue the case

despite the conflict of interest. We remand the matter to the district court to

consider in the first instance (1) whether La Paz County Attorneys act as final

policymakers for the county when making decisions about the initiation and pursuit

5 of criminal proceedings, see McMillian v. Monroe County Alabama, 520 U.S. 781,

785 (1997); and, if so, (2) whether Kimm alleged facts sufficient to state a claim

for relief that is plausible on its face.

AFFIRMED in part and REVERSED and REMANDED in part. The parties shall

bear their own costs.

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