FILED

NOT FOR PUBLICATION

JAN 26 2021

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

PAUL S. DANIELS; NANETTE S. No. 19-17534

DILLARD,

D.C. No. 3:19-cv-00602-JSC Plaintiffs-Appellants,

v. MEMORANDUM*

COUNTY OF ALAMEDA; ALAMEDA

COUNTY BOARD OF SUPERVISORS;

NATE MILEY; SCOTT HAGGERTY;

ALAMEDA COUNTY AUDITOR-

CONTROLLER AGENCY; PATRICK J.

O’CONNELL,

Defendants-Appellees,

and

KEITH CARSON; RICHARD VALLE;

WILMA CHAN, County Supervisor;

SUSAN MURANISHI; DIANA SOUZA;

ROBERT LIEBER,

Defendants.

Appeal from the United States District Court for the Northern District of California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Jacqueline Scott Corley, Magistrate Judge, Presiding

Argued and Submitted January 12, 2021 San Francisco, California

Before: BYBEE and R. NELSON, Circuit Judges, and WHALEY,** District Judge.

Paul Daniels and Nanette Dillard appeal the district court’s order dismissing

their malicious- and retaliatory-prosecution claims, which they brought under 42

U.S.C. § 1983. The couple argues that the district court erroneously relied on

California law—instead of federal law—to impose a presumption that the Alameda

County District Attorney had probable cause to charge them in connection with

misappropriated federal grant funds. Alternatively, the couple contends that the

district court erred in concluding that their complaint failed to adequately connect

any particular defendant to the district attorney’s charging decision. The district

court had jurisdiction under 28 U.S.C. §§ 1331, 1343(a)(3), and we have

jurisdiction under 28 U.S.C. § 1291. We review de novo the district court’s

dismissal for failure to state a claim under Rule 12(b)(6) of the Federal Rules of

Civil Procedure. Curtis v. Irwin Indus., Inc., 913 F.3d 1146, 1151 (9th Cir. 2019).

We affirm.

** The Honorable Robert H. Whaley, United States District Judge for the Eastern District of Washington, sitting by designation. 2 The district court correctly applied California law to find that probable cause

existed to charge Daniels and Dillard criminally. It is well settled that the

existence of probable cause dooms a malicious- or retaliatory-prosecution claim.

See Hartman v. Moore, 547 U.S. 250, 265–66 (2006); Lassiter v. City of

Bremerton, 556 F.3d 1049, 1054 (9th Cir. 2009). We have unambiguously held

that state law determines whether probable cause existed in a state court action

“because we have incorporated the relevant elements of the common law tort of

malicious prosecution into our analysis under § 1983.” Awabdy v. City of

Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004). Nothing about that admonition is

dicta, and it clearly binds us here.

In “California, as in virtually every other jurisdiction” prima facie evidence

of probable cause exists when a defendant is held to answer to criminal charges

after a preliminary hearing. Id. at 1067 (citing Holliday v. Holliday, 55 P. 703, 704

(Cal. 1898)). That prima facie evidence is only rebutted if the prosecution was

“induced by fraud, corruption, perjury, fabricated evidence, or other wrongful

conduct undertaken in bad faith.” Id. (citations omitted). If the criminal charges

result in a conviction, the prima facie presumption becomes conclusive and may

only be overcome by a showing that the conviction was obtained by fraud or

perjury. Plumley v. Mockett, 79 Cal. Rptr. 3d 822, 838 (Cal. Ct. App. 2008). Even

3 an appellate reversal of the criminal conviction will not negate probable cause

absent one of those factors. See Bealmear v. S. Cal. Edison Co., Ltd., 139 P.2d 20,

21 (Cal. 1943).

Daniels and Dillard have not rebutted either presumption. The couple has

not alleged any facts demonstrating that their convictions were the result of fraud

or perjury. Nor have they adequately alleged that the district attorney’s decision to

charge them was the result of fraud, corruption, perjury, or other bad-faith motives.

The complaint alleges wide-spread corruption within the Alameda County

government. But the couple does not plausibly allege that the defendants were

“actively instrumental in causing the initiation of legal proceedings.” See Awabdy,

368 F.3d at 1067. And where the complaint does allege specific facts related to the

district attorney’s decision to charge the couple, the allegations are too attenuated

to have been “instrumental” to the charging decision. Id.

Alternatively, the couple failed to allege specific facts tying any particular

defendant to the district attorney’s charging decision. To state a claim in a § 1983

action, a plaintiff must plead facts showing that each defendant’s “own individual

actions . . . violated the Constitution.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009).

The closest the complaint comes to plausibly connecting a particular defendant to

the district attorney’s charging decision is that one county board member

4 recommended that the district attorney investigate Dillard for allegedly

misappropriating federal grant funds in March 2011. Even assuming that the

defendant specifically asked the district attorney to charge the couple, we presume

that a district attorney’s charging decision “result[ed] from an independent

determination on the part of the prosecutor.” Awabdy, 368 F.3d at 1067. The

isolated allegation here does not rebut that presumption and has not “nudged [the

couple’s] claims . . . across the line from conceivable to plausible.” Iqbal, 556

U.S. at 680 (citations omitted).

AFFIRMED.

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