INTRODUCTION

20 21 On January 25, 2022, Eun Jung Lim (“Plaintiff”), proceeding 22 pro se and in forma pauperis, filed a civil rights complaint 23 pursuant to 42 U.S.C. § 1983. (Dkt. No. 1). On February 22, 24 2022, Plaintiff filed a First Amended Complaint (or “FAC”). (Dkt. 25 No. 8). 26 27 28 Case 8:22-cv-00137-SB-AS Document 10 Filed 06/23/22 Page 2 of 23 Page ID #:64

1 The First Amended Complaint sues City of Irvine, Irvine Police 2 Department, and eight individual Irvine Police Department employees 3 (“IPD Defendants”) and seven individual Orange County District 4 Attorney’s Office employees (“OCDA Defendants”) (collectively, 5 “Individual Defendants”) for the Individual Defendants’ alleged 6 involvement in charging Plaintiff with assault and battery based 7 on fabricated conduct, and the malicious prosecution of Plaintiff, 8 following an incident on January 25, 2020. (See FAC at 2-9). 9 Plaintiff asserts violations of the Fourteen Amendment Due Process 10 and Equal Protection Clauses, 42 U.S.C. § 1981, and Plaintiff’s 11 “rights under color of law,” along with claims of malicious 12 prosecution, intentional infliction of emotional distress (or 13 “IIED”), and indemnification. (See FAC at 9-19). The IPD 14 Defendants are: (1) former Irvine Police Chief Michael Hamel; (2) 15 Sergeant Defective Sean Paul Crawford; (3) Detective Michelle 16 Hinig; (4) Officer Rene Nutter; (5) Officer Michael McNall; (6) 17 Officer Eric Steele; (7) Officer James Moore; and (8) Sergeant 18 William Russell. (FAC at 3-5). The OCDA Defendants are: (1) 19 Assistant Investigator Jerry Poole; (2) Lead Investigator Misty 20 Daniels; (3) District Attorney Todd Spitzer; (4) Deputy District 21 Attorney Dustin Rice; (5) Deputy District Attorney Taylor Krone; 22 (6) Deputy District Attorney Allison Taylor Targoff; and (7) Deputy 23 District Attorney Gaganjot Batth. City of Irvine and Irvine Police 24 Department are sued for the actions of Defendants Nutter, McNall, 25 and Steele. (FAC at 3). All Individual Defendants are sued in 26 both their individual and official capacities. (FAC at 3-6). 27 28

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1 For the reasons discussed below, the Court DISMISSES 2 Plaintiff’s First Amended Complaint WITH LEAVE TO AMEND.1 3 4 II. 5 PLAINTIFF’S ALLEGATIONS 6 7 Plaintiff alleges that on January 25, 2020, while visiting 8 her mother at Hoag Memorial Hospital Presbyterian, she was 9 assaulted and had her phone stolen by Herbert Conrad, a security 10 officer there. (FAC at 2, 7). When Defendants Nutter, McNall, 11 and Steele arrived at the scene, McNall completed a police report 12 of the incident, and included Conrad’s false allegations that 13 Plaintiff had punched Conrad in the face. (FAC at 7). McNall also 14 took photographs of Plaintiff’s hands. (Id.). When Defendant 15 Hinig arrived at the hospital, she viewed the hospital’s video 16 footage of the incident but lied about its contents. (Id.). Hinig 17 then made a declaration for a warrant of Plaintiff’s arrest, 18 charging her with assault and battery. (Id.). 19 20 Following this incident, Plaintiff was charged and prosecuted 21 by the Orange County District Attorney (“OCDA”) based on the 22 fabricated report. (FAC at 8). Plaintiff wrote letters to 23 Defendant Spritzer requesting that he view the video footage so he 24 could see that the police report was false. (Id.). But the OCDA’s 25 office did not issue a subpoena to the hospital to obtain the video 26 1 Magistrate judges may dismiss a complaint with leave to 27 amend without approval from the district judge. McKeever v. Block, 932 F.2d 795, 798 (9th Cir. 1991). 28

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1 footage, and the footage was not considered during the prosecution 2 of Plaintiff’s case. (Id.). 3 4 The OCDA dismissed its case against Plaintiff in May 2021. 5 (Id., see also Notice of Errata to Plaintiff’s First Amended 6 Complaint at 2). While Plaintiff’s case was pending, she made 7 formal requests to the Irvine Police Department (“IPD”) to obtain 8 a copy of Hinig’s declaration in support of the arrest warrant, 9 but she did not receive a copy until after her case was dismissed. 10 (Id.). Meanwhile, Plaintiff’s mother died during the pendency of 11 the case. (FAC at 9). 12 13 Based on these factual allegations, the First Amended 14 Complaint asserts the following claims: (1) Fourteen Amendment due 15 process claims against all Defendants for their prosecution of 16 Plaintiff based on the false allegations in the police report, and 17 their failure to consider the video footage of the incident showing 18 that Plaintiff was innocent of the charges (FAC at 9-10); (2) 19 Fourteenth Amendment equal protection claims against all Defendants 20 for their prosecution of Plaintiff based on false allegations, and 21 their refusal to consider the video footage evidence or provide an 22 explanation for their failure to do so, which Plaintiff contends 23 constitutes discriminatory and differential treatment (FAC at 11- 24 12); (3) 42 U.S.C. § 1981 racial discrimination claims against all 25 Defendants (FAC 13); (4) malicious prosecution claims against the 26 OCDA Defendants for initiating a criminal proceeding against 27 Plaintiff, based on false allegations, without probable cause, and 28 in total disregard of contrary evidence (FAC 14-15); (5) claims

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1 for violating Plaintiff’s constitutional rights under the color of 2 law against all Defendants for the IPD’s actions leading to 3 Plaintiff being erroneously charged, and the OCDA’s actions 4 prosecuting Plaintiff in reckless disregard for the truth (FAC at 5 15-16); (6) intentional infliction of emotional distress claims 6 against all Defendants (FAC at 17); and (7) an indemnification 7 claim against Defendant City of Irvine. (FAC at 18). Plaintiff 8 seeks monetary relief. (FAC at 19). 9 10 III. 11 STANDARD OF REVIEW 12 13 Since Plaintiff is proceeding in forma pauperis, her Complaint 14 is subject to sua sponte review and must be dismissed if it: (1) is 15 frivolous or malicious; (2) fails to state a claim upon which 16 relief may be granted; or (3) seeks monetary relief from a defendant 17 immune from such relief. See 28 U.S.C. § 1915(e)(2)(B); Lopez v. 18 Smith, 203 F.3d 1122, 1126-27 (9th Cir. 2000) (en banc); Barren v. 19 Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998); see also Calhoun 20 v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (per curiam) (Section 21 1915(e)(2)(B) applies to all complaints brought by plaintiffs 22 proceeding in forma pauperis). 23 24 Dismissal for failure to state a claim is appropriate if a 25 complaint fails to proffer “enough facts to state a claim for 26 relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 27 550 U.S. 544, 570 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 678 28 (2009). “A claim has facial plausibility when the plaintiff pleads

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1 factual content that allows the court to draw the reasonable 2 inference that the defendant is liable for the misconduct alleged.” 3 Iqbal, 556 U.S. at 678; accord Hartmann v. Cal. Dep’t of Corr. & 4 Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013). A plaintiff must 5 provide “more than labels and conclusions” or a “formulaic 6 recitation of the elements” of his or her claim. Twombly, 550 U.S. 7 at 555. However, “[s]pecific facts are not necessary; the 8 [complaint] need only give the defendant fair notice of what the 9 claim is and the grounds upon which it rests.” Erickson v. Pardus, 10 551 U.S. 89, 93 (2007) (per curiam) (citation and alterations 11 omitted); Twombly, 550 U.S. at 555. 12 13 In considering whether to dismiss a complaint, the Court must 14 accept the factual allegations of the complaint as true, Wood v. 15 Moss, 572 U.S. 744, 755 n.5 (2014); Erickson, 551 U.S. at 93-94, 16 construe the pleading in the light most favorable to the pleading 17 party, and resolve all doubts in the pleader’s favor. Jenkins v. 18 McKeithen, 395 U.S. 411, 421 (1969); Berg v. Popham, 412 F.3d 1122, 19 1125 (9th Cir. 2005). Pro se pleadings are “to be liberally 20 construed” and “held to less stringent standards” than those 21 drafted by a lawyer. Erickson, 551 U.S. at 94 (citation omitted); 22 see also Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (“Iqbal 23 incorporated the Twombly pleading standard and Twombly did not 24 alter courts’ treatment of pro se filings; accordingly, we continue 25 to construe pro se filings liberally when evaluating them under 26 Iqbal.”). Nevertheless, dismissal for failure to state a claim 27 can be warranted based on either the lack of a cognizable legal 28 theory or the absence of factual support for a cognizable legal

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1 theory. See Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 2 1104 (9th Cir. 2008). A complaint may also be dismissed for failure 3 to state a claim if it discloses some fact or complete defense that 4 will necessarily defeat the claim. Rivera v. Peri & Sons Farms, 5 Inc., 735 F.3d 892, 902 (9th Cir. 2013). 6 7 IV. 8 DISCUSSION 9 10 The Court has reviewed the FAC under the aforementioned 11 standards and has concluded the FAC is deficient and must be 12 dismissed with leave to amend. 13 14 A. Plaintiff Fails to State a Fourteenth Amendment Due Process 15 Claim 16 17 Plaintiff alleges that Defendants violated her Fourteenth 18 Amendment due process rights when they prosecuted her based on 19 false allegations. (FAC at 9-10). “To obtain relief on § 1983 20 claims based upon procedural due process, the plaintiff must 21 establish the existence of (1) a liberty or property interest 22 protected by the Constitution; (2) a deprivation of the interest 23 by the government; and (3) lack of process.” Guatay Christian 24 Fellowship v. Cnty. of San Diego, 670 F.3d 957, 983 (9th Cir. 2011) 25 (citation and alterations omitted). Thus, “[t]he first inquiry in 26 every due process challenge is whether the plaintiff has been 27 deprived of a protected interest in ‘property’ or ‘liberty.’” 28 American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 59 (1999);

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1 see also Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 569 2 (1972) (“The requirements of procedural due process apply only to 3 the deprivation of interests encompassed by the Fourteenth 4 Amendment’s protection of liberty and property.”). Plaintiff’s 5 due process claims concern the prosecution against her following 6 the January 25 incident. She asserts that Defendants violated her 7 due process rights by accepting Conrad’s false allegations without 8 further proof, failing to consider the video footage showing she 9 is innocent, and prosecuting her based on the false allegations in 10 the police report. (FAC at 9-10). However, the case was dismissed 11 in May 2021. (FAC at 8; Notice of Errata to Plaintiff’s First 12 Amended Complaint at 2). 13 14 It appears, therefore, that Plaintiff suffered no 15 constitutional deprivation of a protected liberty or property 16 interest as a result of the prosecution and related conduct. For 17 example, Plaintiff does not allege that she was detained while the 18 assault and battery charges were pending against her. 19 20 Plaintiff also does not allege that Defendants deliberately 21 fabricated evidence in violation of her due process rights. See 22 Spencer v. Peters, 857 F.3d 789, 793 (9th Cir. 2017); Devereaux v. 23 Abbey, 263 F.3d 1070, 1074-75 (9th Cir. 2001) (en banc). To state 24 a § 1983 claim for fabrication of evidence, Plaintiff must allege 25 that "(1) the defendant official deliberately fabricated evidence 26 and (2) the deliberate fabrication caused the plaintiff's 27 deprivation of liberty." Spencer, 857 F.3d at 798. Plaintiff 28 fails to state facts that show that “Defendants continued their

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1 investigation of [her] despite the fact that they knew or should 2 have known that [s]he was innocent,” or that “Defendants used 3 investigative techniques that were so coercive and abusive that 4 they knew or should have known that those techniques would yield 5 false information.” Devereaux, 263 F.3d at 1076. 6 7 Accordingly, Plaintiff fails to state a claim for violation 8 of her right to due process. 9 10 B. Plaintiff Fails to State an Equal Protection Claim 11 12 Plaintiff’s First Amended Complaint references her Fourteenth 13 Amendment right to equal protection and the general discriminatory 14 treatment she experienced (see FAC at 11-12), but she does not 15 allege any grounds to support such a claim. To state an equal 16 protection claim, typically a plaintiff must allege that 17 “defendants acted with an intent or purpose to discriminate against 18 [her] based upon membership in a protected class,” such as a 19 particular race. Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th 20 Cir. 2013) (citation omitted). “Intentional discrimination means 21 that a defendant acted at least in part because of a plaintiff’s 22 protected status.” Serrano v. Francis, 345 F.3d 1071, 1082 (9th 23 Cir. 2003) (citation omitted) (emphasis in original); see also 24 Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1026 (9th 25 Cir. 1998) (to state an equal protection claim, plaintiff “must 26 plead intentional unlawful discrimination or allege facts that are 27 at least susceptible of an inference of discriminatory intent”). 28

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1 Here, Plaintiff claims that she was “discriminatorily treated 2 when the Defendants refused to consider evidence from the footage” 3 and provided no explanation for their refusal to do so. (FAC at 4 12). However, aside from the conclusory allegations that 5 Defendants lacked a “legitimate reason” for their actions (id.), 6 Plaintiff fails to provide any facts that raise a plausible 7 inference that Defendants’ actions had a discriminatory motive – 8 i.e., that Defendants intentionally discriminated against her 9 because of her race, or any other basis. Plaintiff cannot merely 10 allege that Defendants had no “compelling government interest” to 11 prosecute Plaintiff “based on false allegations.” (FAC at 12). 12 Instead, to show discrimination, Plaintiff would need to allege 13 facts showing that Defendants treated her differently from other, 14 similarly situated individuals. 15 16 As such, Plaintiff does not state an Equal Protection claim 17 of discrimination. 18 19 C. Plaintiff Fails to State a Claim Under 42 U.S.C. § 1981 20 21 Plaintiff asserts a racial discrimination claim in violation 22 of 42 U.S.C. § 1981, but again, fails to provide specific grounds 23 for granting relief. (FAC 13-14). Section 1981 provides that 24 “[a]ll persons within the jurisdiction of the United States shall 25 have the same right in every State and Territory to make and enforce 26 contracts, to sue, be parties, give evidence, and to the full and 27 equal benefit of all laws and proceedings for the security of 28 persons and property as is enjoyed by white citizens.” To state a

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1 Section 1981 claim, a plaintiff “must allege (1) the plaintiff is 2 a member of a racial minority; (2) an intent to discriminate on 3 the basis of race by the defendant; and (3) the discrimination 4 concerns one or more of the activities enumerated in the statute.” 5 Keum v. Virgin Am. Inc., 781 F. Supp. 2d 944, 954 (N.D. Cal. 2011); 6 see also Parks Sch. of Bus., Inc., v. Symington, 51 F.3d 1480, 1487 7 (9th Cir. 1995) (citation omitted) (To state a Section 1981 claim, 8 a plaintiff “need only allege that [she] suffered discrimination . 9 . . on the basis of race.”); General Building Contractors Assoc., 10 Inc. v. Pennsylvania, 458 U.S. 375, 391 (1982) (Section 1981 “can 11 be violated only by purposeful discrimination”); Evans v. McKay, 12 869 F.2d 1341, 1344 (9th Cir. 1989) (“What is required in a section 13 1981 action . . . is that the plaintiffs must show intentional 14 discrimination on account of race.”). 15 16 Plaintiff’s Section 1981 claim fails for similar reasons as 17 her Equal Protection claim. Although the FAC alleges that 18 Plaintiff belongs to a racial minority, the FAC does not allege 19 that Defendants discriminated against Plaintiff based on her race. 20 Cf. Johnson v. Riverside Healthcare Sys., LP, 534 F.3d 1116, 1123 21 (9th Cir. 2008) (Section 1981 “creates a cause of action only for 22 those discriminated against on account of their race or 23 ethnicity[.]”); Lowe v. City of Monrovia, 775 F.2d 998, 1010 (9th 24 Cir. 1985) (“[S]ection 1981 redresses only discrimination based 25 on race.”), amended by 784 F.2d 1407 (9th Cir. 1986). Accordingly, 26 Plaintiff does not state a claim based on 42 U.S.C. § 1981. 27 28

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1 D. Plaintiff’s Violation of Constitutional Rights “Under Color 2 of Law” Claim Appears Redundant 3 4 Plaintiff alleges a claim against all Defendants for violating 5 her due process rights and other rights guaranteed by the 6 Constitution while acting under the color of law. (FAC at 15-16). 7 Although “[t]he policies underlying § 1983 include compensation of 8 persons injured by deprivation of federal rights and prevention of 9 abuses of power by those acting under color of state 10 law,” Robertson v. Wegmann, 436 U.S. 584, 590—91 (1978), the Court 11 cannot identify any authority giving rise to a freestanding 12 violation of constitutional rights “under color of law” claim. 13 Instead, it appears that Plaintiff’s claim is redundant and 14 duplicative of her other claims. Thus, the Court dismisses the 15 violation of Constitutional rights “under color of law” claim with 16 leave to amend so that Plaintiff may clarify and distinguish these 17 claims if necessary. 18 19 E. This Court Lacks Subject Matter Jurisdiction Over Plaintiff’s 20 Remaining Claims 21 22 Under 28 U.S.C. § 1367(a), if a district court has original 23 jurisdiction over one or more claims, the court also has 24 supplemental jurisdiction over all state law claims that arise out 25 of the same transaction or occurrence. 28 U.S.C. § 1367(a). 26 However, if all federal claims have been dismissed, the district 27 court no longer has supplemental jurisdiction over the state law 28 claims. Id. Here, the Court has dismissed all of Plaintiff federal

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1 claims with leave to amend. As a result, the court no longer has 2 jurisdiction over Plaintiff’s non-federal claims, including the 3 claims of malicious prosecution (Count 4)2 and intentional 4 infliction of emotional distress (Count 6). (See FAC at 14-15, 5 17). These state claims are dismissed with leave to amend. 6 7 F. Plaintiff Fails to State Claims Against the City of Irvine 8 and Irvine Police Department 9 10 Plaintiff seeks damages from the City of Irvine and Irvine 11 Police Department under the doctrine of respondeat superior for 12 the actions and/or inactions of the IPD Defendants. A local 13 government entity “cannot be held liable solely because it employs 14 a tortfeasor – or, in other words, a municipality cannot be held 15 liable under § 1983 on a respondeat superior theory.” Monell v. 16 Dep’t of Soc. Servs. of City of New York, 436 U.S. 658, 691 (1978. 17 Instead, a municipality, such as the City of Irvine, or the 18 departments and agencies within these entities, is liable under 19 § 1983 only for constitutional violations occurring as the result 20 of an official government policy or custom. Collins v. City of 21 Harker Heights, Tex., 503 U.S. 115, 121 (1992). To prove municipal 22 liability under § 1983, Plaintiff must show both a deprivation of 23 a constitutional right and a departmental policy, custom, or 24 practice that was the “moving force” behind the constitutional 25 violation. Villegas v. Gilroy Garlic Festival Ass’n, 541 F.3d 950, 26 2 Plaintiff’s malicious prosecution claim also fails because 27 the OCDA Defendants are absolutely immune from suit, as discussed in Section IV.H., infra. 28

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1 957 (9th Cir. 2008). There must be a “direct causal link between 2 a municipal policy or custom and the alleged constitutional 3 deprivation.” Collins, 503 U.S. at 123. “[P]roof of a single 4 incident of unconstitutional activity,” or even a series of 5 “isolated or sporadic incidents,” will not give rise to liability 6 under § 1983. Gant v. Cnty. of Los Angeles, 772 F.3d 608, 618 (9th 7 Cir. 2014) (citation omitted). Rather, liability must be “founded 8 upon practices of sufficient duration, frequency and consistency 9 that the conduct has become a traditional method of carrying out 10 policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996). 11 12 Here, Plaintiff fails to allege a constitutional violation 13 pursuant to any policy, custom, or practice of the City of Irvine 14 or the Irvine Police Department. Therefore, Plaintiffs’ 15 allegations are insufficient to establish municipal liability, and 16 any claims against the City of Irvine and Irvine Police Department 17 are dismissed with leave to amend.3 18 19 G. Plaintiff Fails to State an Official-Capacity Claim 20 21 Plaintiff names the Individual Defendants in both their 22 individual and official capacities. (FAC at 3-6). Official 23 capacity claims are “another way of pleading an action against an 24 entity of which an officer is an agent.” Hafer v. Melo, 502 U.S. 25

26 3 Plaintiff also raises a separate indemnification claim against Defendant City of Irvine. (FAC at 18-19). Because 27 Plaintiff fails to demonstrate a viable claim against the City of Irvine, there is no basis for liability against the City. 28

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1 21, 25 (1991) (quoting Monell, 436 U.S. at 690 n. 55). Thus, 2 Plaintiff’s claims against the Individual Defendants in their 3 official capacities are effectively claims against the City of 4 Irvine and Orange County. 5 6 Because official-capacity claims are treated as suits against 7 the entity, it is redundant to name multiple defendants of the same 8 agency in their official capacity. See, e.g., Rosas v. Baca, 2012 9 WL 933609, at *2 (C.D. Cal. Mar. 20, 2012) (dismissing claims 10 against three of four individual defendants sued in their official 11 capacities as duplicative); Thomas v. Baca, 2006 WL 132078, at *1 12 (C.D. Cal Jan. 13, 2006) (dismissing claims against six of seven 13 individual defendants sued in their official capacities as 14 duplicative). Since Plaintiff names the City of Irvine and Irvine 15 Police Department as Defendants, any claims against the IPD 16 Defendants in their official capacity are redundant and subject to 17 dismissal. 18 19 Moreover, as explained in Section IV.F., supra, any claims 20 against the City of Irvine and Orange County fail because 21 municipalities cannot be held liable under § 1983 merely for the 22 acts of its employees or subordinates, unless Plaintiff alleges 23 facts showing that the alleged conduct was caused by any custom, 24 policy, or practice of the City, County, or its departments. See 25 Monell, 436 U.S. at 694. As with the City of Irvine, Plaintiff 26 does not allege that Orange County had any custom, policy, or 27 practice that resulted in the alleged constitutional violations. 28

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1 H. Plaintiff Fails to State A Claim Against the OCDA Defendants 2 Because These Defendants Are Entitled to Absolute Immunity 3 4 Plaintiff asserts various claims against the OCDA Defendants 5 for their involvement in prosecuting Plaintiff based on false 6 allegations following the January 25 incident. (FAC at 5-6, 9- 7 17). Specifically, Plaintiff alleges that the OCDA Defendants 8 prosecuted her based on the fabricated police report, and Defendant 9 Spitzer refused to consider the hospital video footage as evidence 10 of Plaintiff’s innocence following the letters that Plaintiff wrote 11 to him. (FAC at 8). These allegations fail to state a claim 12 against the OCDA Defendants because, as prosecutors, they enjoy 13 absolute immunity from suit under 42 U.S.C. § 1983. 14 15 In Imbler v. Pachtman, the United States Supreme Court held 16 that “in initiating a prosecution and in presenting the State’s 17 case, the prosecutor is immune from a civil suit for damages under 18 § 1983.” 424 U.S. 409, 431 (1976). This immunity, however, is 19 limited to those “prosecutorial actions that are intimately 20 associated with the judicial phase of the criminal process.” Van 21 de Kamp v. Goldstein, 555 U.S. 335, 341 (2009). In Van de Kamp, 22 the Supreme Court extended its conclusion from Imbler and held that 23 the scope of a prosecutor’s absolute immunity from claims asserted 24 under § 1983 extends to claims that a prosecutor failed to properly 25 train prosecutors, failed to properly supervise prosecutors, and 26 failed to establish an information system containing potential 27 impeachment. Id. at 339. 28

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1 The Supreme Court has held that conduct which is not 2 prosecutorial, but rather administrative, is not entitled to 3 immunity. Examples of this conduct include “advising police 4 officers during the investigative phase of a criminal case, 5 performing acts which are generally considered functions of the 6 police, acting prior to having probable cause to arrest, or making 7 statements to the public concerning criminal proceedings.” Botello 8 v. Gammick, 413 F.3d 971, 976-77 (9th Cir. 2005) (citation 9 omitted). But “[p]rosecutors are absolutely immune from liability 10 for gathering additional evidence after probable cause is 11 established or criminal proceedings have begun when they are 12 performing a quasi-judicial function.” Broam v. Bogan, 320 F.3d 13 1023, 1030 (9th Cir. 2003). Thus, investigators who gather 14 evidence “in preparation for a prosecutor's case may enjoy absolute 15 immunity.” KRL v. Moore, 384 F.3d 1105, 1113 (9th Cir. 2004). 16 17 To decide whether absolute immunity attaches to a particular 18 kind of prosecutorial activity, one must take account of functional 19 considerations which underlie the public policy considerations at 20 the heart of the immunity. Van de Kamp, 555 U.S. at 342. After 21 noting that prosecutors enjoyed absolute immunity from common-law 22 tort actions, the Van de Kamp Court noted that these considerations 23 countenance absolute immunity because they arise out of the 24 “‘concern that harassment by unfounded litigation’ could both 25 ‘cause a deflection of the prosecutor’s energies from his public 26 duties’ and also lead the prosecutor to ‘shade his decisions 27 instead of exercising the independence of judgment required by his 28 public trust.’” Van de Kamp, 555 U.S. 341 (quoting Imbler, 424 U.S.

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1 at 423). The Court continued, “a prosecutor inevitably makes many 2 decisions that could engender colorable claims of constitutional 3 deprivation . . . [d]efending these decisions, often years after 4 they were made, could impose unique and intolerable burdens upon a 5 prosecutor responsible annually for hundreds of indictments and 6 trials.” Id. at 342 (quoting Imbler, 424 U.S. at 425-26). 7 8 Plaintiff does not allege that any of the OCDA Defendants 9 acted outside the scope of their prosecutorial duties and conducted 10 administrative or investigative work not covered by the scope of 11 civil immunity. Rather, the specific conduct to which Plaintiff 12 objects is Defendant Spitzer’s alleged refusal to view the hospital 13 video footage to determine that the allegations against Plaintiff 14 in the police report were false. (FAC at 8). But Defendant 15 Spitzer’s conduct, if true, does not fall outside the scope of 16 absolute civil immunity. The FAC does not indicate that Defendant 17 Spitzer assisted the police in their investigation in any manner 18 whatsoever. His actions prosecuting Plaintiff fall within Imbler’s 19 dictate that immunity applies for actions that are “intimately 20 associated with the judicial phase of the criminal process.” 424 21 U.S. at 430. Thus, suit against Defendant Spitzer cannot proceed 22 as he is entitled to absolute immunity. 23 24 The Court so holds, too, for all other OCDA Defendants, 25 because they were merely performing their duties related to the 26 prosecution of Plaintiff. Thus, Defendants Poole, Daniels, Rice, 27 Krone, Targoff, and Batth all enjoy absolute immunity because their 28 work on these matters was intimately associated with the judicial

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1 phase of the criminal process, and all claims pending against them 2 are dismissed with leave to amend. 3 4 I. Plaintiff Fails to State a Claim Against Defendants Hamel, 5 Crawford, Moore, Russell, Nutter, and Steele 6 7 Plaintiff fails to state a claim against Defendants Hamel, 8 Crawford, Moore, Russell, Nutter, and Steele in their individual 9 capacities. “[A] public official is liable under § 1983 only if 10 he causes the plaintiff to be subjected to a deprivation of his 11 constitutional rights.” Baker v. McCollan, 443 U.S. 137, 142 12 (1979) (citation omitted) (emphasis in original); Harper v. City 13 of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008). “To meet this 14 causation requirement, the plaintiff must establish both causation- 15 in-fact and proximate causation.” Id.; see also Arnold v. Int’l 16 Bus. Mach. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981). “The inquiry 17 into causation must be individualized and focus on the duties and 18 responsibilities of each individual defendant whose acts or 19 omissions are alleged to have caused a constitutional deprivation.” 20 Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). 21 22 Here, with the exceptions of Defendants McNall and Hinig, 23 Plaintiff has not alleged facts demonstrating Defendants were “the 24 actual and proximate cause of any constitutional violation.” Leer, 25 844 F.2d at 634. That is, although Plaintiff has named eight IPD 26 Defendants, she has not explained how any of them except Defendants 27 McNall and Hinig violated her constitutional rights. Indeed, 28

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1 Plaintiff raises no allegations at all against Defendants Hamel,4 2 Crawford, Moore, Russell, Nutter, or Steele. (FAC at 2-3, 7-19). 3 Instead, Plaintiff only alleges that Defendant McNall included 4 Conrad’s false allegations in his police report, and that Defendant 5 Hinig saw video footage of the scene but lied, and made a 6 declaration for warrant of Plaintiff’s arrest, charging her with 7 assault and battery. (FAC at 7). In any amended complaint, 8 Plaintiff should name as Defendants only those individuals she 9 believes were the cause of her injuries. 10 11 Moreover, to the extent Plaintiff alleges claims against 12 Defendants Hamel, Crawford, Moore, and Russell based on their 13 status as supervisors, they also fail as a matter of law. Liability 14 under § 1983 cannot be predicated on a theory of respondeat 15 superior, or vicarious liability, which makes a supervisor liable 16 for the wrongful acts of his or her subordinates. See Taylor v. 17 List, 880 F.2d 1040, 1045 (9th Cir. 1989); Peralta v. Dillard, 744 18 F.3d 1076, 1085 (9th Cir. 2014) (en banc), cert. denied, 135 S. 19 Ct. 946 (2015) (“Supervisors aren’t vicariously liable for 20 constitutional violations under section 1983.”). To be held 21 liable, a supervising officer must personally take some action 22 against the plaintiff or “set in motion a series of acts by 23 others . . . which he knew or reasonably should have known, would 24

25 4 Plaintiff alleges that while Defendant Hamel was Police Chief, she made formal requests to the IPD to obtain Defendant 26 Hinig’s declaration in support of the arrest warrant. (FAC at 8). However, Plaintiff does not allege that Defendant Hamel was 27 involved in the IPD’s failure to provide Plaintiff with a copy of the declaration. (See id.). 28

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1 cause others to inflict the constitutional injury” on the 2 plaintiff. Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th 3 Cir. 1991) (citation and alterations omitted). In other words, a 4 supervisor is liable for subordinates’ constitutional violations 5 only “if the supervisor participated in or directed the violations, 6 or knew of the violations and failed to act to prevent them.” 7 Taylor, 880 F.2d at 1045. 8 9 Again, Plaintiff fails to provide any evidence that Defendants 10 Hamel, Crawford, Moore, or Russell acted personally to violate her 11 constitutional rights. Rather, Plaintiff merely alleges that 12 Defendant Hamel is liable “for the actions and/or inactions of 13 [Defendant] Crawford,” Defendant Crawford is liable “for the 14 actions and/or inactions of Defendant Hinig,” and that Defendants 15 Moore and Russell are liable “for the actions and/or inactions of 16 Defendants Nutter, McNall, and Steele.” (FAC at 3-5). 17 18 Because the First Amended Complaint includes insufficient 19 factual allegations in support of these mere legal conclusions, 20 Plaintiff’s claims against Defendants Hamel, Crawford, Moore, 21 Russell, Nutter, and Steele are dismissed with leave to amend. 22 V. 23

CONCLUSION

24 25 For the reasons discussed above, the Court DISMISSES 26 Plaintiff’s claims WITH LEAVE TO AMEND. 27 28

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1 If Plaintiff still wishes to pursue this action, she shall 2 file a Second Amended Complaint no later than 30 days from the date 3 of this Order. The Second Amended Complaint must cure the pleading 4 defects discussed above and shall be complete in itself without 5 reference to prior pleadings. See L.R. 15-2 (“Every amended 6 pleading filed as a matter of right or allowed by order of the 7 Court shall be complete including exhibits. The amended pleading 8 shall not refer to the prior, superseded pleading.”). This means 9 that Plaintiff must allege and plead any viable claims again. 10 11 In any amended complaint, Plaintiff should identify the nature 12 of each separate legal claim and confine her allegations to those 13 operative facts supporting each of her claims. For each separate 14 legal claim, Plaintiff should state the civil right that has been 15 violated and the supporting facts for that claim only. Pursuant 16 to Federal Rule of Civil Procedure 8(a), all that is required is a 17 “short and plain statement of the claim showing that the pleader 18 is entitled to relief.” However, Plaintiff is advised that the 19 allegations in the Second Amended Complaint should be consistent 20 with the authorities discussed above. In addition, the Second 21 Amended Complaint may not include new Defendants or claims not 22 reasonably related to the allegations in the previously filed 23 complaints. Plaintiff is strongly encouraged to utilize the 24 standard civil rights complaint form when filing any amended 25 complaint, a copy of which is attached. 26 27 Plaintiff is explicitly cautioned that failure to timely file 28 a Second Amended Complaint, or failure to correct the deficiencies

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1 described above, may result in a recommendation that this action, 2 or portions thereof, be dismissed with prejudice for failure to 3 prosecute and/or failure to comply with court orders. See Fed. R. 4 Civ. P. 41(b); Applied Underwriters, Inc. v. Lichtenegger, 913 F.3d 5 884, 891 (9th Cir. 2019) (“The failure of the plaintiff eventually 6 to respond to the court’s ultimatum - either by amending the 7 complaint or by indicating to the court that it will not do so - 8 is properly met with the sanction of a Rule 41(b) dismissal.”) 9 (citing Edwards v. Marin Park, Inc., 356 F.3d 1058, 1065 (9th Cir. 10 2004) (emphasis omitted). Plaintiff is further advised that if 11 she no longer wishes to pursue this action in its entirety or with 12 respect to particular Defendants or claims, she may voluntarily 13 dismiss all or any part of this action by filing a Notice of 14 Dismissal in accordance with Federal Rule of Civil Procedure 15 41(a)(1). A form Notice of Dismissal is attached for Plaintiff’s 16 convenience. 17 18 IT IS SO ORDERED. 19 20 Dated: June 23, 2022 ______________/s/_____________ 21 ALKA SAGAR

UNITED STATES MAGISTRATE JUDGE

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