1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 KESHAWN FULTON MITCHELL, Case No. 21-cv-05014-DMR

8 Plaintiff,

ORDER GRANTING LEAVE TO FILE

9 v. SECOND AMENDED COMPLAINT

10 COUNTY OF CONTRA COSTA, et al., Re: Dkt. No. 40 11 Defendants.

12 Plaintiff Keshawn Fulton Mitchell filed a complaint against Defendants County of Contra 13 Costa (“Contra Costa”) and law enforcement officers Thomas Brook and Kyle Emley alleging 14 claims arising out of his February 2020 arrest. Mitchell now moves pursuant to Federal Rule of 15 Civil Procedure 15(a) to file a second amended complaint that adds a claim for malicious 16 prosecution under 42 U.S.C. § 1983. [Docket No. 40.] This matter is suitable for resolution 17 without a hearing. Civ. L.R. 7-1(b). For the following reasons, the motion is granted. 18 I. BACKGROUND AND PROCEDURAL HISTORY 19 The operative first amended complaint contains the following allegations: Brook and 20 Emley are officers with the Contra Costa County Sheriff’s Office (“CCCSO”). [Docket No. 25 21 (First Am. Compl., “FAC”) ¶ 5.] On February 27, 2020, Mitchell “was a passenger in a vehicle 22 that had been pursued by law enforcement.” Id. at ¶ 12 n.1. When the car stopped, Mitchell 23 exited the vehicle and “very briefly, ran before stopping and surrendering to the Defendant 24 Deputies” in accordance with their orders. Id. (emphasis removed). After Mitchell surrendered, 25 he was “unnecessarily, repeatedly, and inappropriately struck by Brook and/or Emley.” Id. at ¶ 26 12. The officers struck Mitchell with batons and stomped the back of his head while he was face- 27 down on the ground with his arms out. He suffered dental injuries and injury to his head. Id. 1 with him by claiming that he ignored their commands “to stop running and get on the ground” 2 after they identified themselves, resulting in a foot chase that ended when Mitchell tried and failed 3 to jump over a fence. Id. They also fabricated a report that Mitchell’s injuries were caused by an 4 alleged fall, face first, from the fence. Mitchell alleges that he “did not fall face first onto the 5 sidewalk, did not attempt to climb or jump over a wrought iron fence, [and] did not ignore 6 multiple commands from Defendants resulting in a foot chase spanning 200 yards or lasting 7 approximately 1 minute.” Id. He also alleges that he “did not, at any time, physically resist, 8 threaten, batter, or assault any Defendant,” fail to obey any order prior to the officers’ use of force, or “delay, obstruct, or interfere” with the officers’ duties. Id. at ¶ 14. 9 Mitchell was arrested and charged with violating California Penal Code section 148(a)(1)1 10 based on “deliberately fabricated facts.” Id. at ¶ 13. He alleges that his prosecution “was subject 11 to a Misdemeanor Pre-Trial Diversion Order . . . without a plea.” Id. 12 Mitchell filed the original complaint on June 29, 2021. Defendants subsequently moved 13 pursuant to Federal Rule of Civil Procedure 12(b)(6) to dismiss certain claims in the complaint 14 and then in the FAC. The remaining claims are: 1) a 42 U.S.C. § 1983 claim for violations of the 15 Fourth Amendment based on excessive force, unlawful arrest, and fabrication of material facts 16 against Brook and Emley and Doe Defendants 1 to 100; and 2) a 42 U.S.C. § 1983 claim against 17 Contra Costa and Doe Defendants 101 to 200 for municipal liability under Monell v. Department 18 of Social Services of City of New York, 436 U.S. 658 (1978), based on policies, customs, or 19 practices. See Mitchell v. Cnty. of Contra Costa, No. 21-CV-05014-DMR, 2022 WL 1225015, at 20 *2, 10 (N.D. Cal. Apr. 26, 2022). 21 22 1 The relevant provision of California Penal Code section 148 states: 23

Every person who willfully resists, delays, or obstructs any public 24 officer, peace officer, or an emergency medical technician . . . in the discharge or attempt to discharge any duty of his or her office or 25 employment, when no other punishment is prescribed, shall be punished by a fine not exceeding one thousand dollars ($1,000), or by 26 imprisonment in a county jail not to exceed one year, or by both that fine and imprisonment. 27 1 The court held an initial case management conference on March 30, 2022 and set a May 2 31, 2022 deadline to seek leave to amend the pleadings to add new parties, claims, or defenses. 3 [Docket No. 30.] 4 On July 5, 2022, Mitchell filed the instant motion for leave to file a second amended 5 complaint (“SAC”) that adds a claim for malicious prosecution under section 1983 and additional 6 factual allegations to support that claim. [See Docket Nos. 40-1 (Lagos Decl., Jul. 5, 2022) Ex. A 7 (Prop. SAC) at ¶¶ 13, 20, 21; 43-1 (Lagos Decl., Jul. 21, 2022) ¶ 3, Ex. C (Ex. C to Prop. SAC).]2 8 He contends that amendment is warranted due to a recent change in the law regarding malicious 9 prosecution claims. Defendants oppose the motion. 10 II. LEGAL STANDARD 11 Under Federal Rule of Civil Procedure 15(a), leave to amend the pleadings before trial 12 should be given “freely . . . when justice so requires.” Fed. R. Civ. P. 15(a)(2). “This policy is to 13 be applied with extreme liberality,” Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1051 14 (9th Cir. 2003) (quotation omitted), and the Ninth Circuit has instructed that “the court must 15 remain guided by the underlying purpose of Rule 15 . . . to facilitate decision on the merits, rather 16 than on the pleadings or technicalities.” Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000) 17 (quotation marks and citation omitted, alteration in original). Therefore, in the absence of an 18 “apparent” reason, such as undue delay, bad faith or dilatory motive, prejudice to the opposing 19 party, futility of the amendments, or repeated failure to cure deficiencies in the complaint by prior 20 amendment, it is an abuse of discretion for a district court to refuse to grant leave to amend a 21 complaint. Foman v. Davis, 371 U.S. 178, 182 (1962); Lockheed Martin Corp. v. Network Sols., 22 Inc., 194 F.3d 980, 986 (9th Cir. 1999). These factors do not “merit equal weight,” and “it is the 23 consideration of prejudice to the opposing party that carries the greatest weight.” Eminence 24 Capital, 316 F.3d at 1052. “Granting leave to amend does not necessarily mean that the 25 underlying allegations ultimately have merit.” FlatWorld Interactives LLC v. Apple Inc., 12-CV- 26

27 2 For the reasons supporting the ruling in this order, the court finds good cause to modify its May 1 01956-WHO, 2013 WL 6406437, at *3 (N.D. Cal. Dec. 6, 2013). “Rather, ‘[a]bsent prejudice, or 2 a strong showing of any of the remaining [ ] factors, there exists a presumption under Rule 15(a) 3 in favor of granting leave to amend.’” Id. (quoting Eminence Capital, 316 F.3d at 1052). 4 III. DISCUSSION 5 Mitchell seeks leave to file the proposed SAC adding a claim for malicious prosecution 6 under section 1983 and additional factual allegations in support of that claim. Mitchell’s counsel 7 states that after filing the FAC, he learned of Thompson v. Clark, 142 S. Ct. 1332, 1341 (2022), in 8 which the United States Supreme Court held that “a Fourth Amendment claim under § 1983 for 9 malicious prosecution does not require the plaintiff to show that the criminal prosecution ended 10 with some affirmative indication of innocence. A plaintiff need only show that the criminal 11 prosecution ended without a conviction.” Prior to Thompson, which was issued on April 4, 2022, 12 an individual seeking to bring a malicious prosecution claim was required to show that the prior 13 proceedings “terminated in favor of the accused.” See Lacey v. Maricopa Cnty., 693 F.3d 896, 14 919 (9th Cir. 2012); accord Awabdy v. City of Adelanto, 368 F.3d 1062, 1068 (9th Cir. 2004) 15 (“[a]n individual seeking to bring a malicious prosecution claim must generally establish that the 16 prior proceedings terminated in such a manner as to indicate his innocence.”). 17 Mitchell seeks leave to add factual allegations in support of a malicious prosecution claim, 18 including the following amended allegation about the termination of his criminal prosecution:

19 13. Plaintiff was arrested and criminally charged with a violation of Penal Code § 148(a)(1) based upon the deliberately fabricated facts 20 which prosecution was subject to a Misdemeanor Pre-Trial Diversion Order pursuant to Penal Code § 1001, et seq., Penal Code § 1001.50 21 without a plea following Plaintiff’s appearance in Court the failure of which would subject Plaintiff to arrest pursuant to a Court-issued 22 warrant (see Exhibit C). Following Plaintiff’s successful completion of the misdemeanor pre-trial diversion order, the criminal complaint 23 was dismissed on December 21, 2021. Plaintiff’s prosecution ended without a conviction. 24 25 Prop. SAC ¶ 13 (emphases in original; proposed amendment underlined). He also seeks leave to 26 add the allegations that Defendants violated Mitchell’s Fourth Amendment right “to be free from a 27 criminal prosecution lacking probable cause”; that the “criminal prosecution to which [he] was 1 causing the prosecution to be filed and maintained was malicious because . . . they sought to hide 2 and cover-up their unlawful conduct . . . which caused Plaintiff his physical injuries and which 3 injuries had to be reported and otherwise explained and justified to Defendants’ employer.” Id. at 4 ¶¶ 20-21. 5 Mitchell argues that the proposed SAC is timely and should be allowed because Thompson 6 “dramatically changed the law with respect to the legal requirements for a Fourth Amendment § 7 1983 constitutional claim of malicious prosecution.” He also argues that the amendment is in 8 good faith, and that since it relies on existing allegations that “the deputies did not honestly report 9 their contact with Plaintiff” in order “to protect themselves from their abuse of power,” 10 Defendants will not be prejudiced by the amendment. Mot. 5. 11 Defendants oppose the motion. They do not argue that bad faith, undue delay, prejudice, 12 or previous amendment weigh against granting leave to amend. Instead, they argue that 13 amendment should be denied because the proposed malicious prosecution claim is futile. 14 “A proposed amendment is futile only if no set of facts can be proved under the 15 amendment to the pleadings that would constitute a valid and sufficient claim or defense.” Miller 16 v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988). “To state a malicious prosecution claim 17 under Section 1983, a plaintiff must show that the defendant (1) prosecuted plaintiff (2) with 18 malice; (3) without probable cause; and (4) with ‘the purpose of denying plaintiff equal protection 19 or another constitutional right.’” Heard v. Jackson, No. 21-CV-09472-JSC, 2022 WL 2356821, at 20 *4 (N.D. Cal. June 30, 2022) (quoting Lacey, 693 F.3d at 919 (quoting Freeman v. City of Santa 21 Ana, 68 F.3d 1180, 1189 (9th Cir. 1995)). A plaintiff must also show that “the criminal 22 prosecution ended without a conviction.” Thompson, 142 S. Ct. at 1341. 23 Where, as here, a malicious prosecution claim is based on the Fourth Amendment, the 24 plaintiff “must demonstrate a Fourth Amendment seizure . . .” See Prop. SAC ¶ 20; Yousefian v. 25 City of Glendale, 779 F.3d 1010, 1015 (9th Cir. 2015) (quotation marks and citations omitted). 26 Defendants sole argument on futility is that Mitchell has not stated a Fourth Amendment 27 malicious prosecution claim because the proposed SAC “does not allege facts showing that 1 that the proposed SAC “reflect[s] that he appeared in court without having to enter a plea, that he 2 could have been subject to arrest had he not appeared (but this did not happen), and that the 3 charges against him were eventually dismissed.” Opp’n 4. Defendants contend that “[n]one of 4 this amounts to a seizure.” Id. at 4-5 (citing Karam v. City of Burbank, 352 F.3d 1188, 1193 (9th 5 Cir. 2003) (holding that conditions of plaintiff’s pretrial release “requiring that she obtain 6 permission of the court before leaving the state and that she make court appearances” in 7 connection with misdemeanor charge did not amount to a seizure under the Fourth Amendment)). 8 Defendants’ argument ignores that the FAC and proposed SAC both allege that “Plaintiff 9 was arrested and criminally charged . . . based upon the deliberately fabricated facts.” FAC ¶ 13; 10 Prop. SAC ¶ 13 (emphasis added). It is well-settled “that a Fourth Amendment seizure occurs 11 when a person is held in custody by arresting officers.” Karam, 352 F.3d at 1193 (citing Fontana 12 v. Haskin, 262 F.3d 871, 879 (9th Cir. 2001)). 13 Defendants offer no other argument about the sufficiency of the proposed Fourth 14 Amendment malicious prosecution claim but assert that even if the proposed SAC states such a 15 claim, Brook and Emley are entitled to qualified immunity. Opp’n 5. 16 “[Q]ualified immunity protects government officials ‘from liability for civil damages 17 insofar as their conduct does not violate clearly established statutory or constitutional rights of 18 which a reasonable person would have known.’” Moss v. U.S. Secret Serv., 675 F.3d 1213, 1222 19 (9th Cir. 2012) (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)). The qualified immunity 20 analysis involves two inquiries. First, taken in the light most favorable to the plaintiff, the court 21 must ask whether the facts alleged show that the officer’s conduct violated a constitutional right. 22 Saucier v. Katz, 533 U.S. 194, 201 (2001). If the answer is “no,” then the court need not inquire 23 further before ruling that the officer is entitled to qualified immunity. Id. If, however, “a violation 24 could be made out on a favorable view of the parties’ submissions,” the court must examine 25 “whether the [constitutional] right was clearly established.” Id. The court may exercise its 26 discretion in deciding “which of the two prongs of the qualified immunity analysis should be 27 addressed first in light of the circumstances in the particular case at hand.” Pearson v. Callahan, 1 “The linchpin of qualified immunity is the reasonableness of the official’s conduct.” 2 Rosenbaum v. Washoe Cnty., 663 F.3d 1071, 1075 (9th Cir. 2011) (citation omitted). “The 3 relevant, dispositive inquiry in determining whether a right is clearly established is whether it 4 would be clear to a reasonable officer that his conduct was unlawful in the situation he 5 confronted.” Saucier, 533 U.S. at 202. “If the law did not put the officer on notice that his 6 conduct would be clearly unlawful, summary judgment based on qualified immunity is 7 appropriate.” Id. “A clearly established right is one that is ‘sufficiently clear that every 8 reasonable official would have understood that what he is doing violates that right.’” Mullenix v. 9 Luna, 577 U.S. 7, 11 (2015) (per curiam) (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). 10 The Supreme Court has cautioned that specificity in determining whether “the violative nature of 11 particular conduct is clearly established . . . is especially important in the Fourth Amendment 12 context, where the Court has recognized that it is sometimes difficult for an officer to determine 13 how the relevant legal doctrine . . . will apply to the factual situation the officer confronts.” 14 Mullenix, 136 S. Ct. at 308 (emphasis in original; quotation omitted). A court determining 15 whether a right was clearly established looks to “Supreme Court and Ninth Circuit law existing at 16 the time of the alleged act.” Community House, Inc. v. Bieter, 623 F.3d 945, 967 (9th Cir. 2010) 17 (citing Osolinski v. Kane, 92 F.3d 934, 936 (9th Cir. 1996)). “[T]here can be the rare ‘obvious 18 case,’ where the unlawfulness of the officer’s conduct is sufficiently clear even though existing 19 precedent does not address similar circumstances.” D.C. v. Wesby, 138 S. Ct. 577, 590 (2018). 20 Defendants’ qualified immunity argument is as follows: prior to Thompson, a plaintiff 21 could not establish a malicious prosecution claim unless they could show that the prosecution 22 “terminated in favor of the accused.” See Lacey, 693 F.3d at 919. “Following Thompson, that is 23 no longer so.” Opp’n 5. According to Defendants, at the time of Mitchell’s February 2020 arrest, 24 “it was not clearly established that a law enforcement officer violates the Constitution by making 25 false statements in an incident report even though the subsequent criminal prosecution fails to 26 terminate in a manner indicating the suspect’s innocence. Instead, the opposite was clearly 27 established, that such allegations did not implicate the Constitution.” Id. (emphasis in original). 1 of [officers’] conduct was ‘clearly established at the time.’” Wesby, 138 S. Ct. at 589 (quotation 2 marks and citation omitted) (emphasis added). As another court in this district recently held, “it is 3 obvious to any reasonable officer that they cannot cite a suspect based on knowingly false 4 information, from which a prosecutor would file charges.” Franklin v. Mally, No. 17-cv-00789- 5 HSG, 2019 WL 2548687, at *7 (N.D. Cal. Jun. 20, 2019) (denying summary judgment on 6 malicious prosecution claim based on qualified immunity) (citing Blankenhorn v. City of Orange, 7 485 F.3d 463, 480-83 (9th Cir. 2007)); cf Santana v. Cnty. of Yuba, No. 215CV00794KJMEFB, 8 2016 WL 8673061, at *13 (E.D. Cal. Aug. 19, 2016), aff’d, 856 F. App’x 65 (9th Cir. 2021) 9 (concluding that “no reasonable officer could conclude that the Constitution permits her to 10 manipulate evidence to support an unsupportable felony charge” and denying motion to dismiss 11 equal protection claim based on qualified immunity).3 Defendants offer no authority or argument 12 supporting their position that Brook and Emley were not on notice that they could not prosecute 13 Mitchell based on allegedly fabricated evidence. 14 Ultimately, “[t]he party opposing amendment bears the burden of showing why leave to 15 amend should not be granted,” Microsoft Corp. v. Hon Hai Precision Indus. Co., No. 19-CV- 16 01279-LHK, 2020 WL 836712, at *14 (N.D. Cal. Feb. 20, 2020) (citations omitted), and as noted, 17 “[a] proposed amendment is futile only if no set of facts can be proved under the amendment to 18 the pleadings that would constitute a valid and sufficient claim or defense.” Miller, 845 F.2d at 19 214. The court concludes that Defendants have failed to establish that Mitchell’s proposed 20 malicious prosecution claim is futile. Mitchell’s motion is timely given the recent change in the 21 law regarding malicious prosecution claims, and Defendants are not prejudiced by the amendment 22 because it is based largely on facts that are already alleged in the operative complaint. 23 Accordingly, the court grants Mitchell’s motion for leave to file the proposed SAC. 24 25

26 3 Defendants also argue that Brook and Emley are entitled to qualified immunity on the proposed malicious prosecution claim because “it was not clearly established at the time of the alleged 27 incident that a person is ‘seized’ under the Fourth Amendment just because he is ordered to appear

IV. CONCLUSION

For the foregoing reasons, Mitchell’s motion for leave to file the proposed SAC adding a 2 malicious prosecution claim is granted. Mitchell shall file the SAC by no later than September 6, 3 2022. IST} 4 KES DISTR IC> oO > 5 □ IT IS SO ORDERED. R) vp Dated: August 30, 2022 Z/IN yr i SO 7 □ YM 4h □ PDpAM Rove] Oh di Rides Map trateserenrc □ 9 □□ a 10 OY

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