1 2 FILED IN THE U.S. DISTRICT COURT 3 EASTERN DISTRICT OF WASHINGTON Jun 18, 2020 4 5 SEAN F. MCAVOY, CLERK 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 ALBERTO ALVAREZ, 10 Plaintiff, NO. 1:19-CV-03272-SAB 11 v. 12 YAKIMA POLICE DEPARTMENT; ORDER DISMISSING CASE 13 MARK WILLIAMS; RYAN AVERY; D. 14 DIAZ; BROOKE WRIGHT, Washington 15 State Deputy Prosecuting Attorney; and 16 YERICA MERAZ, 17 Defendants. 18 19 Before the Court are a litany of motions. From Defendants are three separate 20 motions to dismiss. ECF Nos. 13, 15, and 19. From Plaintiff are two Construed 21 Motions to Amend the Complaint, ECF Nos. 20 and 30, a Motion to Appoint 22 Standby Counsel, ECF No. 21, a Motion to Strike Defendants’ Motions to Dismiss, 23 ECF No. 24, a Motion for Clerk’s Entry of Default, ECF No. 34, two Motions for 24 Default Judgment, ECF Nos. 28 and 35, and a Construed Motion to Disqualify 25 Counsel, ECF No. 29. Plaintiff is proceeding pro se. Defendants Yakima Police 26 Department, Officer Mark Williams, Officer Ryan Avery, and Officer D. Diaz are 27 represented by Robert Christie and Thomas Miller. Defendant Brooke Wright is 28 1 represented by Don Anderson. Defendant Yerica Meraz is represented by Ben 2 Crozier. The motions were considered without oral argument. 3 The Court has reviewed all of the briefing in this matter1 and the applicable 4 case law. The Court therefore grants Defendants’ motions and dismisses this case 5 with prejudice. Plaintiff’s motions are either dismissed or denied as moot, as 6 discussed below. 7 Facts and Procedural History 8 At its core, Plaintiff’s claims arise out of a complaint made by Ms. Meraz to 9 the Yakima Police Department in November 2016 and his subsequent trial and 10 conviction. ECF No. 1 at 11. 11 On November 17, 2016, Ms. Meraz met with Officer Avery and Officer 12 Williams to initiate a complaint against Plaintiff. Id. at 12. No written statement or 13 audio recording was produced in this initial questioning. Id. at 2. During the 14 interview, Officer Williams took several photographs of Ms. Meraz’s phone 15 screen. Id. The next day, Officers Avery and Williams met with Ms. Meraz at her 16 home to give her a domestic violence statement form. Id. Officer Avey explained 17 how to fill out the form and told Ms. Meraz that he filled out the information on 18 the top of the form for her. Id. After meeting with Ms. Meraz, Plaintiff alleges 19 Officers Avery and Williams went to Plaintiff’s home, “opened the screen door” to 20 his home, then “grope[d]” him by the arm, and pulled him onto his doorstep and 21 placed him under arrest. Id. at 12-13. Plaintiff was transported to the Yakima 22 Police Station and placed in a holding cell, handcuffed to the wall. Officer 23
24 1 The Court notes that Mr. Alvarez has two other cases pending before it, Alvarez 25 v. Yakima Police Department et al, 1:20-CV-3057-SAB (complaint filed May 6, 2020), and Alvarez v. Yakima County Department of Corrections, 1:20-CV-3071- 26 SAB (complaint filed May 27, 2020). Because both of those cases were filed after 27 Mr. Alvarez became incarcerated on state criminal charges, the Court is required to screen those complaints before service of process can be issued. Orders screening 28 both of those Complaints are forthcoming. 1 Williams attempted to question Plaintiff, and he demanded a lawyer after Officer 2 Williams allegedly asked him questions about his masturbation habits. Id. 3 Plaintiff also alleges that there was misconduct by Deputy Prosecutor 4 Wright during his trial. Plaintiff alleges that Defendant Wright engaged in 5 malicious prosecution by amending the probable cause affidavit in his case on the 6 day of trial and that she relied on perjured testimony to obtain a conviction against 7 him. ECF No. 20 at 1-2. He also alleges that she knowingly gave false information 8 in closing arguments. Id. Plaintiff alleges that Defendant Wright has also 9 committed malicious prosecution against him because of other cases currently 10 pending against him in Yakima Municipal Court and other cases against him that 11 were dismissed on double jeopardy grounds. Id. at 2-3. On February 21, 2020, 12 Plaintiff was found guilty of Second-Degree Extortion—Domestic Violence. See 13 ECF No. 13-1 (Felon Judgment and Sentence in Yakima County Superior Court).2 14 Plaintiff was sentenced to fourteen months confinement and was ordered not to 15 contact Ms. Meraz. Id. Plaintiff recently filed a notice of appeal to the Washington 16 Court of Appeals, Division III, seeking review of his judgment and sentence. As 17 far as the Court is aware, the Court of Appeals has neither granted the writ nor 18 issued an opinion. ECF No. 20-1. 19 Plaintiff filed the instant action on November 18, 2019, asserting 20 constitutional claims under 42 U.S.C. § 1983. Plaintiff’s claims include malicious 21 prosecution in violation of the Fourth Amendment, excessive bail and fines in 22 violation of the Eighth Amendment, speedy trial violations, and deprivations of 23 2 The Court can consider this document. See U.S. v. Ritchie, 342 F.3d 903, 908 (9th 24 Cir. 2003) (“A court may, however, consider certain materials—documents 25 attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice—without converting the motion into a motion for 26 summary judgment.”); Fed. R. Evid. 201(b)(2) (a court may take judicial notice of 27 a fact that is not subject to reasonable dispute because it can be accurately and readily determined from sources whose accuracy cannot reasonably be 28 questioned). 1 equal protection and due process in violation of the Fourteenth Amendment. He 2 asserts that Defendants’ collective actions caused him wrist pain, post-traumatic 3 stress disorder, and extreme emotional distress and anxiety. ECF No. 1 at 8. 4 Plaintiff seeks $500,000 in monetary damages, attorney’s fees, costs, bail fees, 5 travel expenses, lost wages, damages for loss of employment advancement 6 opportunities and loss of educational opportunities, and restoration of damaged 7 reputation. 8 On April 17, 2020, the Court ordered Defendants to reply to the Complaint if 9 they had not already done so. ECF No. 18. By April 28, 2020, all Defendants filed 10 motions to dismiss under either Federal Rule of Civil Procedure 12(b)(5) or 11 12(b)(6). 12 Legal Standard 13 1. Rule 12(b)(5) Standard 14 Rule 12(b)(5) allows a party to move for dismissal if it was insufficiently 15 served process. Fed. R. Civ. P. 12(b)(5). “A federal court does not have jurisdiction 16 over a defendant unless the defendant has been properly served under Federal Rule 17 of Civil Procedure 4.” Direct Mail Specialists v. Eclat Computerized Techs., Inc., 18 840 F.2d 685, 688 (9th Cir. 1988). Rule 4(m) requires that a defendant be served 19 within 90 days after the complaint is filed. Rule 4 is a flexible rule and should be 20 liberally construed so long as party receives sufficient notice of the complaint 21 against it. Id. (quoting United Food & Comm. Workers Union v. Alpha Beta Co., 22 736 F.2d 1371, 1382 (9th Cir. 1984)). However, without substantial compliance, 23 neither actual notice nor naming a defendant in the complaint will provide the 24 court with personal jurisdiction over a party. Id. Objections to the validity of 25 service of process must be specific and must point out in what manner the plaintiff 26 has failed to satisfy the requirements of proper service.” Duran v. Macias-Price, 27 No. 07-CV-01209-AWI-SMS, 2007 WL 4554390 at *1 (E.D. Cal. Dec. 20, 2007). 28 After proper objection, the party on whose behalf service was made must establish 1 its validity. Brockmeyer v. May, 383 F.3d 798, 802 (9th Cir. 2004). If service of 2 process is insufficient, the court may dismiss the action or quash the service. S.J. v. 3 Issaquah Sch. Dist. No. 411, 470 F.3d 1288, 1293 (9th Cir. 2006). 4 2. Rule 12(b)(6) Standard 5 Rule 12(b)(6) allows a party to move for dismissal if the plaintiff has failed 6 to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). 7 Dismissal under his rule is only proper if there is either a “lack of a cognizable 8 legal theory” or “the absence of sufficient facts alleged under a cognizable legal 9 theory.” Taylor v. Yee, 780 F.3d 928, 935 (9th Cir. 2015); Balistreri v. Pacifica 10 Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990). 11 When considering a 12(b)(6) motion, the court accepts the allegations in the 12 complaint as true and construes the pleading in the light most favorable to the party 13 opposing the motion. Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 588 (9th Cir. 14 2008). However, this does not require the Court “to accept as true legal 15 conclusions couched as factual allegations.” Parents for Privacy v. Barr, 949 F.3d 16 1210, 1221 (9th Cir. 2020). Pro se motions are construed liberally. Pena v. 17 Gardner, 976 F.2d 469, 471 (9th Cir. 1992). However, the Court may not supply 18 essential elements of the claim that are not initially pled, and vague and conclusory 19 allegations not sufficient to survive a motion to dismiss. Id. 20 To survive a motion to dismiss, the plaintiff must allege “enough facts to 21 state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 22 U.S. 544, 570 (2007); see also Levit v. Yelp!, Inc., 765 F.3d 1123, 1135 (9th Cir. 23 2014) (requirements of notice pleading are met if plaintiff makes a short and plain 24 statement of their claims). A claim is plausible on its face when “the plaintiff 25 pleads factual content that allows the court to draw the reasonable inference that 26 the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 27 678 (2009). The allegations must be enough to raise the right to relief about a 28 speculative level. Twombly, 550 U.S. at 555. Dismissal without leave to amend is 1 proper only if it is absolutely clear that deficiencies in the complaint cannot be 2 corrected by amendment. AmerisourceBergen Corp. v. Dialysis West, Inc., 465 3 F.3d 946, 951 (9th Cir. 2006). 4 Discussion 5 As the Court has already noted there are many, many motions pending 6 before it in this case. The Court shall consider each motion in turn. 7 1. Plaintiff’s Motion to Strike Defendants’ Motions to Dismiss 8 Plaintiff requests that the Court strike all of Defendants’ Motions to Dismiss. 9 ECF No. 24 at 1. Plaintiff argues that the motions to dismiss should be struck 10 because Defendants did not file and serve Plaintiff with the motions within 60 days 11 after service of the Complaint. Id. 12 Federal Rule of Civil Procedure 12(f) allows a party to file a motion to strike 13 a defense that is insufficient as a matter of law. To determine whether a defense is 14 sufficiently pled as a matter of law, the court considers whether the pleading gives 15 plaintiff fair notice of the defense. Wyshak v. City Nat’l Bank, 607 F.2d 824, 827 16 (9th Cir. 1979). The grounds for the motion to strike must appear on the face of the 17 pleading under attack or from matters which the court may take judicial notice. 18 Herd v. Cnty. of San Bernardino, 311 F. Supp. 3d 1157, 1162 (C.D. Cal. 2018). 19 Motions to strike are generally disfavored because they are often used as a 20 delaying tactic. Cal. Dep’t of Toxic Substances Control v. Alco Pac., Inc., 217 F. 21 Supp. 2d 1028, 1033 (C.D. Cal. 2002). Thus, the moving party must make a 22 showing of prejudice before the motion can be granted. Fantasy Inc. v. Fogerty, 23 984 F.2d 1524, 1528 (9th Cir. 1993), rev’d on other grounds, 510 U.S. 517 (1994). 24 Plaintiff has failed to show that he has been prejudiced by Defendants’ delay 25 in filing and serving their motions to dismiss or that the motions to dismiss are 26 insufficient as a matter of law. Furthermore, the Court expressly gave Defendants 27 permission to file technically tardy motions to dismiss so long as they were filed 28 1 by May 15, 2020. ECF No. 18 at 2. Accordingly, Plaintiff’s Motion to Strike is 2 denied. 3 2. Plaintiff’s Motion for Clerk’s Entry of Default and Motions for Default 4 Judgment 5 Plaintiff has also filed a Motion for Clerk’s Entry of Default and two 6 Motions for Default Judgment. Plaintiff’s argument here is similar to his argument 7 in favor of his motion to strike—Defendants did not file their motions to dismiss 8 within 60 days of service of the Complaint, so he is entitled to default and default 9 judgment. 10 Plaintiff’s motions are denied. Although Plaintiff correctly sought an entry 11 of default, the Clerk of Court can enter default only where a party has failed to 12 plead, defend, or otherwise appear in a case. Fed. R. Civ. P. 55(a). That is not the 13 case here, as all Defendants have made appearances, including those that arguably 14 were not served. Second, Plaintiff’s motions for default judgment are denied 15 because (1) there is no entry of default; (2) he has not indicated that he has 16 provided seven-days’ notice to Defendants of the plan to file for default judgment; 17 and (3) he has failed to show that the balance of the Eitel v. McCool, 782 F.2d 18 1470, 1471-72 (9th Cir. 1986), factors merits entry of default judgment. 19 Accordingly, Plaintiff’s motion for entry of default and motions for default 20 judgment are denied 21 3. Defendants’ Motions to Dismiss 22 a. Defendant Meraz’s Motion to Dismiss 23 Defendant Meraz argues that she should be dismissed from this lawsuit 24 because she is not a proper defendant in a § 1983 action. ECF No. 13 at 4-5. 25 42 U.S.C. § 1983 provides a cause of action against a person acting under color of 26 state law for violations of rights guaranteed by the federal Constitution or federal 27 law. Pistor v. Garcia, 791 F.3d 1104, 1114 (9th Cir. 2015). In order to be held 28 liable, the challenged action must be “state action”; that is, the defendant must 1 have exercised power possessed by virtue of state law and made possible only 2 because the wrongdoer is clothed with the authority of state law. West v. Atkins, 3 487 U.S. 42, 49 (1988); United States v. Classic, 313 U.S. 299, 326 (1941). The 4 party bringing claims under § 1983 has the burden of establishing that defendants 5 were state actors. Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 156 (1978). 6 To determine whether the actions of a private actor are fairly attributable to 7 the state, the Court considers two factors: (1) whether the deprivation was caused 8 by the exercise of some right or privilege created by the State or by a rule of 9 conduct imposed by the state or by a person for whom the State is responsible; and 10 (2) whether the party charged with the deprivation may fairly be said to be a state 11 actor. Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982). In general, private 12 individuals do not act “under color of state law” and are not proper defendants in a 13 § 1983 action. Civil Rights Cases, 109 U.S. 3 (1883); Florer v. Congregation 14 Pidyon Shevuyim, N.A., 639 F.3d 916, 922 (9th Cir. 2011). A private individual 15 may be liable under § 1983 if she conspired with or entered joint action with a state 16 actor. Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2002). To demonstrate that a 17 private party is a co-conspirator with state actors, the plaintiff must demonstrate 18 the existence of an agreement or meeting of the minds between the parties to 19 violate the constitutional rights of the plaintiff. Mendocino Envtl. Ctr. v. 20 Mendocino Cty., 192 F.3d 1283, 1301 (9th Cir. 1999). To be liable, each 21 participant need not know the exact details of the plan, but each participant must at 22 least share the common objective of the conspiracy. United Steelworkers of Am. v. 23 Phelps Dodge Corp., 865 F.2d 1539, 1541 (9th Cir. 1989) (en banc). However, 24 vague and conclusory allegations are insufficient to withstand a motion to dismiss, 25 and the court may not interpret the complaint to supply essential elements of the 26 claim. Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982). 27 Based on the plain facts of Plaintiff’s Complaint, Ms. Meraz is not a state 28 actor and is therefore not a proper defendant. See Rivera v. Green, 775 F.2d 1381, 1 1384 (9th Cir. 1985) (holding that filing a police complaint does not transform a 2 private party into a state actor). To the extent Plaintiff attempts to amend his 3 complaint, ECF No. 20, he only seeks to add the label “co-conspirator” to Ms. 4 Meraz in the case caption and make baseless allegations that she previously 5 brought claims against him for violating no-contact orders and is being “silenced” 6 by her attorney to prevent her from “implicating what the defendants did in order 7 to cover-up the illegal tactics used and to avoid answering this lawsuit.” ECF No. 8 20 at 7. However, none of these allegations are sufficient to state a claim against 9 Ms. Meraz as a matter of law. Accordingly, the Court grants Ms. Meraz’s motion 10 and dismisses her from this action with prejudice. 11 b. Yakima Police Department Defendants Motion to Dismiss 12 The Yakima Police Department (YPD) Defendants moved for dismissal 13 pursuant to Rule 12(b)(5) and 12(b)(6). ECF No. 15. First, Defendants Avery, 14 Williams, and Diaz argue that the claims against them should be dismissed because 15 Plaintiff did not properly serve them. Defendant YPD seeks dismissal because the 16 Complaint does not allege any wrongdoing against the YPD or the City of Yakima. 17 Finally, Officer Diaz requests dismissal of all claims against her under 12(b)(6) for 18 failure to state plausible claims, and Officers Avery and Williams request dismissal 19 of the Sixth, Eighth, and Fourteenth Amendment claims against them. 20 There is no evidence that Officers Diaz, Avery, or Williams were served 21 pursuant to Rule 4(m). Indeed, the proof of service only shows that service was 22 effected upon Ms. Meraz, DPA Wright, and YPD. See ECF No. 7. Furthermore, 23 both Officers Avery and Williams filed declarations attesting to the fact that 24 neither of them were served with a copy of the summons and complaint in this 25 matter within 90 days of the filing of the complaint. ECF Nos. 16 and 17. Insofar 26 as Plaintiff argues the Officers purposefully evaded service, he introduces no 27 actual evidence of these claims. Accordingly, the motion to dismiss is granted and 28 1 Officers Diaz, Avery, and Williams are dismissed as defendants on Rule 12(b)(5) 2 grounds. 3 Defendant YPD seeks dismissal under Rule 12(b)(6) because it was not 4 properly named as a defendant in this suit and because the Complaint fails to allege 5 any wrongdoing against it or the City of Yakima. As a preliminary matter, in order 6 to bring an appropriate action challenging the actions, policies, or customs or a 7 local governmental unit, the plaintiff must name the county or city itself as a party 8 to the action, not the particular municipal department alleged to have injured him. 9 Bradford v. City of Seattle, 557 F. Supp. 2d 1189, 1207 (W.D. Wash. 2008) (citing 10 Nolan v. Snohomish Cty., 59 Wash. App. 876, 883 (1990)). Here, the City of 11 Yakima is not a named party; accordingly, Defendant YPD is dismissed as a 12 defendant in this case. 13 In addition, the Complaint does not properly establish liability against the 14 City under Monell. At the very least, the Complaint does not show that the City 15 had a policy that amounted to deliberate indifference to any of Plaintiff’s 16 constitutional rights. Dougherty v. City of Covina, 654 F.3d 892, 900 (9th Cir. 17 2011). Indeed, the body of the Complaint does not mention either the City or YPD 18 at all. Plaintiff has failed to allege facts sufficient to state a clause that is plausible 19 on its face, and therefore dismissal of YPD as a defendant and all claims against it 20 is appropriate. See Iqbal, 556 U.S. at 677-78; Jackson v. Barnes, 749 F.3d 755 (9th 21 Cir. 2014). Insofar as Plaintiff attempts to amend his complaint to add the City of 22 Yakima as a defendant, ECF No. 30, he still fails to show any wrongdoing on 23 behalf of the city itself. 24 Finally, the Yakima Defendants move for the dismissal of all claims against 25 Officer Diaz and of the Sixth, Eighth, and Fourteenth Amendment claims against 26 Officers Williams and Avery. As discussed above, in order to establish a claim for 27 damages for an alleged constitutional violation under 42 U.S.C. § 1983, the 28 plaintiff must show that the action occurred under color of state law and resulted in 1 a deprivation of a constitutional or federal statutory right. Parratt v. Taylor, 451 2 U.S. 527, 535 (1981). This also requires a plaintiff to show individual participation 3 in the action that allegedly deprived the plaintiff of his right; for police officers, 4 merely being present or part of a team is insufficient to meet this burden. Jones v. 5 Williams, 297 F.3d 930, 937 (9th Cir. 2002). 6 As to Defendant Diaz, the Complaint and the proposed Amended Complaint 7 only allege that Officer Diaz took Ms. Meraz’s statement. Plaintiff also mentions 8 that Officer Diaz “convince[d]” Ms. Meraz to make her statement. ECF No. 20 at 9 4. This is not sufficient evidence to show the necessary personal involvement in 10 the constitutional violations Plaintiff alleges. Accordingly, the claims against 11 Officer Diaz are dismissed. 12 Defendants Avery and Williams also request that the Court dismiss the 13 Sixth, Eighth, and Fourteenth Amendment claims against them. ECF No. 15 at 11. 14 It is firmly settled that a person’s Sixth and Fourteenth Amendment right to 15 counsel attaches at or after the time that adversary judicial proceedings have been 16 initiated against him. Kirby v. Illinois, 406 U.S. 682, 688 (1972). This right 17 attaches at the time of arraignment, and at a preliminary hearing, but generally 18 does not attach until a formal charge has been brought in some shape or form. Id. 19 at 689. 20 The Complaint and proposed amendments to the Complaint do not allege 21 that Officers Avery or Williams infringed on his Sixth and Fourteenth Amendment 22 right to counsel after criminal charges were filed. Plaintiff might have a Fifth 23 Amendment claim—maybe—but that claim has not been brought at this point, and 24 the facts indicate that as soon as Plaintiff asked for an attorney any questioning 25 ceased. The Eighth Amendment prohibits the government from imposing excessive 26 or cruel and unusual punishment. However, the Eighth Amendment does not apply 27 until after a formal adjudication of guilt; claims related to pretrial detention are 28 governed by the Fourteenth Amendment due process clause. Bell v. Wolfish, 441 1 U.S. 520, 535 n. 16 (1979). There are no allegations that Defendants Avery and 2 Williams are involved with the conditions of Plaintiff’s confinement after he was 3 booked into jail, so these claims are dismissed. Finally, to the extent that Plaintiff 4 raises Fourteenth Amendment claims based on his arrest and prosecution (as 5 opposed to the conditions of any pretrial confinement), those claims are improper 6 because they are governed by the Fourth Amendment. Cty. of Sacramento v. Lewis, 7 523 U.S. 833, 843 (1998); Fontana v. Haskin, 262 F.3d 871, 881-82 (9th Cir. 8 2001). Thus, the Fourteenth Amendment claims are also dismissed. 9 Accordingly, the Court grants the Yakima Defendants’ Motion to Dismiss 10 on all grounds. Officers Diaz, Williams, and Avery are dismissed because they 11 were not properly served and because the Complaint falls to allege plausible claims 12 against them. Defendant YPD is not a properly named defendant and, to the extent 13 the Complaint alleges claims against the City of Yakima, those claims are not 14 sufficient under Monell and Iqbal. Accordingly, the Yakima Defendants’ Motion 15 to Dismiss is granted. 16 c. Defendant Wright’s Motion to Dismiss 17 Defendant DPA Wright also requests that the Court dismiss the claims 18 against her because the Complaint fails to state a claim against her and that she is 19 entitled to absolute prosecutorial immunity. ECF Nos. 19, 23. In his Complaint, 20 Plaintiff makes no specific factual allegations against Defendant Wright. In his 21 Motion to Amend, Plaintiff makes allegations of prosecutorial misconduct, 22 asserting that Defendant Wright amended the probable cause affidavit in his case 23 on the day of trial, relied on perjured testimony to obtain a conviction against him, 24 and knowingly gave false information to the jury during closing arguments. ECF 25 No. 20 at 1-2. In his Amended Complaint, Plaintiff clarifies that he is raising a 26 malicious prosecution claim against Defendant Wright. 27 Defendant Wright is entitled to absolute prosecutorial immunity, and 28 accordingly her Motion to Dismiss is granted. It has long been settled that a 1 prosecutor is absolutely immune for actions taken in her prosecutorial function and 2 is only qualifiedly immune for actions taken in her investigatory or administrative 3 function. Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). Whether a prosecutor 4 was acting in her prosecutorial capacity or some other capacity is determined by 5 “the nature of the function performed, not the identity of the actor who performed 6 it.” Kalina v. Fletcher, 522 U.S. 118, 127 (1997); Imbler v. Pachtman, 424 U.S. 7 409 (1976). The official seeking absolute immunity bears the burden of showing 8 that such immunity is justified for the function in question. Burns v. Reed, 500 U.S. 9 478, 486 (1991). 10 Generally, the duties of a prosecutor in her role as an advocate for the State 11 are entitled to absolute immunity. Buckley, 509 U.S. at 272. This includes the 12 professional evaluation of evidence, but it does not apply when a prosecutor is 13 engaged in administrative or investigatory functions normally performed by a 14 detective or police officer. Id. at 273. When arguably administrative tasks are 15 directly connected with the conduct of a trial and necessarily require legal 16 knowledge and the exercise of related discretion, absolute immunity is appropriate. 17 Van de Kamp v. Goldstein, 555 U.S. 335, 344-49 (2009)). 18 In the Complaint, Plaintiff makes only threadbare allegations against 19 Defendant Wright. Accordingly, Plaintiff fails to state a claim against her. Insofar 20 as Plaintiff’s proposed amendments make allegations of prosecutorial misconduct 21 against Defendant Wright, those claims are barred by absolute prosecutorial 22 immunity because she was acting in her prosecutorial capacity when she presented 23 the probable cause affidavit, prepared Defendant Meraz for trial and questioned her 24 at trial, and made closing arguments to the jury. Buckley, 509 U.S. at 272. Even if 25 Defendant Wright acted wrongfully or illegally, she is entitled to absolute 26 immunity. Imbler, 424 U.S. at 427. 27 The Court also notes that Plaintiff’s claims against DPA Wright are likely 28 barred under Heck v. Humphrey. In Heck v. Humphrey, the Supreme Court created 1 an exhaustion/abstention rule that bars an individual convicted of a crime from 2 bringing a civil action challenging the conviction until and unless it is overturned, 3 either by the courts or by an executive pardon. 512 U.S. 477, 486-87 (1994). 4 Although no party has yet briefed whether the Heck bar applies in this action, the 5 Court finds that Heck at least bars Plaintiff’s malicious prosecution claim against 6 Defendant Wright. Plaintiff is currently appealing his criminal conviction. Because 7 he has not received relief overturning his conviction or an executive pardon, he has 8 not satisfied the elements of a malicious prosecution claim and is barred by Heck. 9 Accordingly, the malicious prosecution claim against Defendant Wright is also 10 dismissed pursuant to Heck. 11 4. Plaintiff’s Motions to Amend/Supplement Complaint 12 Plaintiff requests leave to amend or supplement his Complaint, ECF Nos. 13 20, 30. As detailed above, Plaintiff wants to add the following elements to his 14 Complaint: (1) to label Defendant Meraz as a “co-conspirator” in the case caption; 15 (2) to specifically allege claims of prosecutorial misconduct against Defendant 16 Wright in support of his malicious prosecution claims; (3) to allege facts about an 17 interview of Defendant Meraz by Officer Diaz; and (4) to include details about 18 other cases filed against him in Yakima County Superior Court. ECF No. 20 at 2-4. 19 Plaintiff also seeks to add a Fifth Amendment claim and a Fourteenth Amendment 20 claim. Defendants oppose the motion and argue that Plaintiff should not be given 21 leave to amend because it would be futile. In his second Motion to Amend, 22 Defendant adds information about service of Defendant Wright and seeks to add 23 City of Yakima as a Defendant. 24 Pro se parties should generally be given leave to amend unless amendment 25 would cause undue prejudice to the defendant, is sought in bad faith, or is futile. 26 Bowles v. Reade, 198 F.3d 752, 757 (9th Cir. 1999). Despite this liberal rule, the 27 Court denies Plaintiff’s motions and denies him leave to amend his Complaint. 28 There are no facts alleged in either Motions to Amend that would add enough to 1 make the claims Plaintiff raised plausible on their face. In addition, although City 2 of Yakima would be a proper party here, Plaintiff has not introduced any facts in 3 his proposed amendments that would establish municipal liability. Accordingly, 4 Plaintiff’s Motions to Amend or Supplement Complaint are denied. 5 5. Plaintiff’s Motion to Appoint Standby Counsel 6 Plaintiff requests that the Court appoint him standby counsel. Because the 7 Court has granted Defendants’ motions to dismiss, there is no grounds for which to 8 grant Plaintiff standby counsel. Accordingly, the Motion to Appoint Counsel is 9 dismissed as moot. 10 6. Plaintiff’s Motion to Disqualify Defendant Meraz’s Counsel 11 Finally, Plaintiff seeks to disqualify Ms. Meraz’s counsel, Ben Crozier, due 12 to a conflict of interest. ECF No. 29. Plaintiff says—without any support—that he 13 participated in an intake interview with Northwest Justice Project (NJP), where Mr. 14 Crozier is a staff attorney, in late 2016 before retaining different counsel to appeal 15 his state criminal charges. Plaintiff does not allege that he was interviewed by Mr. 16 Crozier specifically. In response, Mr. Crozier introduced an affidavit detailing 17 NJP’s conflicts check process and statements from NJP’s conflicts check attorney 18 indicating that NJP has no record of Plaintiff ever contacting them for legal 19 representation. Defendant also argues that, , it is unlikely that it would have 20 interviewed Plaintiff as a potential client, as NJP cannot provide representation to 21 criminal defendants except in limited circumstances as a consequence of their 22 federal funding. 23 When faced with an allegation that an attorney’s representation of a client 24 presents a conflict of interest, it is the duty of the district court to examine the 25 charge, since it is that court which is authorized to supervise the conduct of the 26 members of its bar. United States for Use and Benefit of Lord Elec. Co., Inc. v. 27 Titan Pac. Constr. Corp., 637 F. Supp. 1556, 1560 (W.D. Wash. 1986). In 28 determining whether an attorney’s representation of a particular client violates the 1 attorney’s ethical responsibilities, the Court first refers to the local rules regulating 2 the conduct of members of its bar and the Rules of Professional Conduct. Id. 3 (citing Paul E. Iacono Structural Eng’r, Inc. v. Humphrey, 722 F.2d 435, 439 (9th 4 Cir. 1983)). 5 Washington Rule of Professional Conduct 1.18 governs a lawyer’s duties to 6 prospective clients. A person who consults with a lawyer about the possibility of 7 forming a client-lawyer relationship with respect to a matter is a prospective client. 8 RPC 1.18(a). Even if no client-lawyer relationship ensues, a lawyer who has 9 learned information from a prospective client shall not use or reveal that 10 information except as allowed by Rule 1.9. RPC 1.18(b). A lawyer shall not 11 represent a client with interests materially adverse to those of a prospective client 12 or a substantially related matter if the lawyer received information from the 13 prospective client that could be significantly harmful to that person in the matter. 14 RPC 1.18(c). When the lawyer has received disqualifying information, the 15 representation is nonetheless permissible if the affected client and prospective 16 client give informed consent in writing or the lawyer who received the information 17 took reasonable measures to avoid exposure to more disqualifying information 18 than was reasonably necessary to determine whether to represent the prospective 19 client and she is timely screened from participation in the matter. RPC 1.18(d). 20 Plaintiff has failed to demonstrate that there is an actual conflict of interest 21 that requires the Court to disqualify Mr. Crozier as Ms. Meraz’s counsel. Plaintiff 22 has introduced no support for his assertion that he contacted NJP in 2016, and the 23 fact that NJP has no information about Plaintiff contacting NJP lends credence to 24 Defendant’s argument that the motion is baseless and should be denied. The Court 25 therefore denies Plaintiff’s Motion to Disqualify Counsel. 26 Accordingly, IT IS ORDERED: 27 1. Defendant Yerica Meraz’s Motion to Dismiss, ECF No. 13, Defendants 28 Yakima Police Department, Mark Williams, Ryan Avery, and D. Diaz’s Motion to 1|| Dismiss, ECF No. 15, and Defendant Brooke Wright’s Motion to Dismiss, ECF No. 19, are GRANTED. Plaintiffs claims against them are dismissed with prejudice. 2. Plaintiff’s First Construed Motion to Amend/Supplement Complaint, ECF 5|| No. 20, is DENIED. 3. Plaintiff's Motion to Appoint Stand In Counsel, ECF No. 21, is DISMISSED as moot. 8 4. Plaintiff's Motion to Strike Defendants’ Motions to Dismiss, ECF No. 24, DENIED. 10 5. Plaintiff's Motion for Default Judgment, ECF No. 28, is DENIED. 11 6. Plaintiff's Construed Motion to Disqualify Counsel, ECF No. 29, is DENIED. 13 7. Plaintiff's Second Construed Motion to Amend Complaint, ECF No. 30, DENIED. 15 8. Plaintiff's Motion for Entry of Default on Clerk’s Order for Affirmative 16| Relief, ECF No. 34, is DENIED. 17 9. Plaintiff's Construed Second Motion for Default Judgment, ECF No. 35, 18|}is DENIED. 19 10. The Clerk of Court is directed to enter judgment against Plaintiff and in 20|| favor of Defendants. 21 IT IS SO ORDERED. The District Court Clerk is hereby directed to enter 22\| this Order, to provide copies to counsel and Plaintiff, and to close the file. 23 DATED this 18th day of June 2020. 24 25 26 . 27 3 Loe £ 7 dai... 28 Stanley A. Bastian United States District Judge ANAT NICAITICCIAIGA NAGCnR