NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS NOV 26 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

TIMOTHY S. TOFAUTE; DAVID DIXON, No. 18-15268

Plaintiffs-Appellants, D.C. No. 1:16-cv-01627-DAD-

SKO

v.

COUNTY OF MADERA; et al., MEMORANDUM*

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of California Dale A. Drozd, District Judge, Presiding

Submitted November 18, 2019**

Before: CANBY, TASHIMA, and CHRISTEN, Circuit Judges.

Timothy S. Tofaute and David Dixon appeal pro se from the district court’s

judgment dismissing their 42 U.S.C. § 1983 action alleging federal and state law

claims arising from their arrest and criminal prosecution. We have jurisdiction

under 28 U.S.C. § 1291. We review de novo a dismissal for failure to state a claim

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). under 28 U.S.C. § 1915(e)(2)(B)(ii). Watison v. Carter, 668 F.3d 1108, 1112 (9th

Cir. 2012). We affirm.

The district court properly dismissed plaintiffs’ malicious prosecution claim

against defendant former District Attorney Keitz on the basis of prosecutorial

immunity because plaintiffs failed to allege facts sufficient to show that Keitz’s

alleged conduct was not “intimately associated with the judicial phase of the

criminal process . . . .” Imbler v. Pachtman, 424 U.S. 409, 430 (1976); Broam v.

Bogan, 320 F.3d 1023, 1029 (9th Cir. 2003) (“A prosecutor is absolutely immune

from liability for failure to investigate the accusations against a defendant before

filing charges.”).

The district court properly dismissed plaintiffs’ malicious prosecution claims

against defendants Anderson and Blehm because plaintiffs failed to allege facts

sufficient to show that former District Attorney Keitz did not “exercise[]

independent judgment in determining that probable cause for [plaintiffs’] arrest

exist[ed] . . . .” Smiddy v. Varney, 665 F.2d 261, 266 (9th Cir. 1981), overruled on

other grounds by Beck v. City of Upland, 527 F.3d 853, 865 (9th Cir. 2008); see

also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (to avoid dismissal, “a complaint

must contain sufficient factual matter, accepted as true, to state a claim to relief

that is plausible on its face” (citation and internal quotation marks omitted)).

The district court properly dismissed plaintiffs’ failure-to-train claim against

2 18-15268 Madera County because plaintiffs failed to allege facts sufficient to show that the

County policymakers were personally involved in causing their injury, were aware

that any training program was inadequate, or that a pattern of similar incidents

existed. See Connick v. Thompson, 563 U.S. 51, 61-62 (2011) (noting that actual

or constructive notice that a training program causes city employees to violate

citizens’ constitutional rights and a pattern of similar constitutional violations by

untrained employees are usually necessary for a failure-to-train claim); Ellins v.

City of Sierra Madre, 710 F.3d 1049, 1066 (9th Cir. 2013) (county may be liable

under § 1983 “when the plaintiff was injured pursuant to an expressly adopted

official policy, a long-standing practice or custom, or the decision of a final

policymaker” (citation and internal quotation marks omitted)); see also Iqbal, 556

U.S. at 678.

We do not consider arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.

3 18-15268