Johnston v. Merced District Attorney's Office

• Court: District Court, E.D. California
• Decided: May 6, 2020
• Docket: 1:19-cv-00926
• Status: Unknown

Opinion

7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9

10 TYRONE JOHNSTON, Case No. 1:19-cv-00926-AWI-EPG 11 12 Plaintiff, FINDINGS AND RECOMMENDATIONS RECOMMENDING THAT THIS ACTION 13 v. BE DISMISSED WITH PREJUDICE AS TO THE DISTRICT ATTORNEY AND 14 INVESTIGATING OFFICERS, AND MERCED DISTRICT ATTORNEY’S 15 OFFICE, et al., WITHOUT PREJUDICE AS TO ATTORNEY FOSTER 16 Defendants. (ECF No. 6) 17 OBJECTIONS, IF ANY, DUE WITHIN 18 TWENTY-ONE (21) DAYS

19 20 Plaintiff, Tyrone Johnston, appearing pro se and in forma pauperis, commenced this 21 action on July 8, 2019, by filing a complaint under 28 U.S.C. § 1983 alleging law enforcement 22 misconduct in connection with a murder charge against him. (ECF No. 1.) On November 25, 23 2019, the Court issued a screening order finding that Plaintiff’s complaint stated no cognizable 24 claims, and giving Plaintiff leave to amend his complaint. (ECF No. 5) Plaintiff filed a First 25 Amended Complaint on December 19, 2019, which is before the Court for screening. (ECF 26 No. 6). 27 For the reasons described below, the Court recommends that Plaintiff’s claim for 28 malicious prosecution against the District Attorney, Nicole Silvera, be dismissed based on 1 absolute prosecutorial immunity. The Court recommends that Plaintiff’s claim against 2 Detectives Brum and Vierra be dismissed because the prosecutor’s independent decision to 3 charge Plaintiff immunizes them from claims arising from their investigation. The Court 4 recommends that Plaintiff’s claim against his attorney, Douglas Foster, be dismissed without 5 prejudice because the Court lacks jurisdiction over this solely state law claim. 6 Plaintiff has twenty-one days to file objections to these findings and recommendations. 7 I. SCREENING REQUIREMENT 8 Under 28 U.S.C. § 1915(e)(2), in any case in which a plaintiff is proceeding in forma 9 pauperis, the Court must conduct a review of the complaint to determine whether it “state[s] a 10 claim on which relief may be granted,” is “frivolous or malicious,” or “seek[s] monetary relief 11 against a defendant who is immune from such relief.” If the Court determines that the 12 complaint fails to state a claim, it must be dismissed. Id. An action is frivolous if it is “of little 13 weight or importance: having no basis in law or fact” and malicious if it was filed with the 14 “intention or desire to harm another.” Andrews v. King, 398 F.3d 1113, 1121 (9th Cir. 2005). 15 Leave to amend may be granted to the extent that the deficiencies of the complaint can be cured 16 by amendment. Cato v. United States, 70 F.3d 1103, 1106 (9th Cir. 1995). 17 A complaint must contain “a short and plain statement of the claim showing that the 18 pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 19 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 20 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 21 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set forth “sufficient 22 23 factual matter, accepted as true, to ‘state a claim that is plausible on its face.’” Iqbal, 556 U.S. 24 at 663 (quoting Twombly, 550 U.S. at 555). While factual allegations are accepted as true, legal 25 conclusions are not. Id. at 678. 26 In determining whether a complaint states an actionable claim, the Court must accept 27 the allegations in the complaint as true, Hosp. Bldg. Co. v. Trs. of Rex Hospital, 425 U.S. 738, 28 740 (1976), construe pro se pleadings liberally in the light most favorable to the Plaintiff, 1 Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000), and resolve all doubts in the Plaintiff’s 2 favor, Jenkins v. McKeithen, 395 U.S. 411, 421 (1969). Pleadings of pro se plaintiffs “must be 3 held to less stringent standards than formal pleadings drafted by lawyers.” Hebbe v. Pliler, 627 4 F.3d 338, 342 (9th Cir. 2010) (holding that pro se complaints should continue to be liberally 5 construed after Iqbal). 6 II. ALLEGATIONS IN THE FIRST AMENDED COMPLAINT 7 Plaintiff alleges as follows in his First Amended Complaint: 8 Plaintiff titles the First Amended Complaint “Atwater Police Department and Detective 9 Brum and Vierra.” 10 Plaintiff alleges that on July 2, 2018, there was an incident involving himself that 11 resulted in the loss of life of Arthur Hudson of Merced CA, and that the loss of life was due to 12 self-defense. 13 During the investigation into Arthur Hudson’s loss of life, Plaintiff alleges that Atwater 14 Police Department Detectives Brum and Vierra violated Plaintiff’s civil rights. Plaintiff claims 15 he was falsely arrested. 16 Plaintiff does not have access to discovery in the case due to a current ruling, so 17 Plaintiff alleges the following by memory. 18 One female witness called 911 and gave eye-witness information about a crime being 19 committed. Based on her explanation, it was self-defense. The investigating officers are heard 20 laughing at the end of the call. They disregarded this important information. 21 Rondell Hudson was interviewed by Detectives Brum and Vierra. He was also 22 interviewed by Merced Law Enforcement Agent James Rochester on three occasions. During 23 the first interview, Mr. Hudson gives Detective Brum the same information, with the exception 24 of a few minor details, as the female 911 witness. Rondell Hudson is released. 25 On the second day of interview of Mr. Hudson, Detectives Brum, Vierra, and Agent 26 Rochester all interview Mr. Hudson. Hudson provides the same information. He is released. 27 Hudson is summoned for a third interview. This time, he is shown drone footage and 28 asked to explain the information in detail. Rondell Hudson does this in vivid detail from 1 memory. Afterwards, Detective Vierra starts to provide details to Hudson that contradict 2 Hudson’s statement but omit details from the female 911 caller’s statement. Although the 3 female 911 caller said that a weapon was removed from the scene, the Detectives omitted this 4 information and told Rondell Hudson that they never found a weapon without giving 5 information about why they did not find a weapon. Similarly, although the female 911 caller 6 said that a second suspect ran away from the scene, the Detectives withheld this information 7 although it would also explain why no weapon was found at the scene. Rondell Hudson’s first 8 statement indicated that there was a mutual incident involving two people with weapons. This 9 was consistent with the female 911 caller’s statement. 10 Rondell Hudson changed his statement after this questioning. Rondell Hudson’s change 11 of statement led to Plaintiff’s false arrest. 12 The Detectives told Rondell Hudson that he was a suspected accomplice and could be 13 charged as such. They also told Rondell Hudson that he had two strikes and if he was charged, 14 he would spend his life in prison. At this time, Rondell Hudson was on an ankle bracelet and 15 could be tracked by law enforcement. The police strong-armed him into agreeing with at least 16 two false police statements. 17 Also, the Assistant District Attorney, Nicole Silvera wrongly decided to prosecute 18 Plaintiff. The criteria for the charge of Malicious Premeditated Homicide are “very high. Once 19 charged, prosecutors pursue convictions for life in prison or the death penalty. So, there should 20 be a higher standard than usual for pursuing such a charge, and scrutiny of their discovery must 21 be impeccable. If there is exculpatory evidence that may put in dispute any of the officers’ 22 conduct or the investigation of any information that calls into question the charge, then the DA 23 must exercise caution in proceeding or “Not Charge” based on this information or request a full 24 dismissal in the interest of justice. 25 D.A. Nicole Silvera knew of the 911 call that explained the situation as self-defense 26 from day 1. She also knew that the officers threatened the only witness for the prosecution of 27 being an accomplice if he didn’t change his statement. The manner in which the changed 28 statement came about should have concerned the DA. There is no reason why the DA ignored 1 these relevant elements of evidence, which violated Plaintiff’s constitutional rights not to be 2 arrested or subjected to false prosecution. Furthermore, Ms. Silvera knew the statements from 3 two totally unrelated witnesses amounted to the same general information. Once the officers 4 coerced the individual they had subjective control over, the DA held a preliminary hearing to 5 cement the false allegations against Plaintiff. 6 Also, Douglas Foster was Plaintiff’s attorney. He constantly misled Plaintiff. He 7 ignored Plaintiff’s pleading to send an investigator to collect information. He wanted a month 8 to send an investigator. He told Plaintiff he was on vacation during this time. Mr. Foster came 9 to Plaintiff with an offer he made, under the guise of it being from the DA. There was never an 10 offer from the DA. Mr. Foster asked Plaintiff if he would accept 9 years. Plaintiff refused. 11 Mr. Foster dragged the case out for six months. Plaintiff believes Mr. Foster was working with 12 the DA toward Plaintiff’s conviction. 13 Mr. Foster failed to use any relevant information or introduce the 911 call in Plaintiff’s 14 favor at the preliminary hearing. He told Plaintiff as his lawyer that Plaintiff would not be able 15 to use the 911 call as evidence at trial. This is the reason Plaintiff hired a private attorney. The 16 private attorney saw that Mr. Foster had been purposefully negligent in Plaintiff’s case. Mr. 17 Loethen, Plaintiff’s private attorney, secured Plaintiff’s release within 45 days of accepting 18 Plaintiff’s case. 19 III. ANALYSIS OF PLAINTIFF’S CLAIMS 20 A. Malicious Prosecution 21 “Federal courts rely on state common law for elements of malicious prosecution.” Mills 22 v. City of Covina, 921 F.3d 1161, 1169 (9th Cir. 2019), cert. denied sub nom. Mills v. Covina, 23 CA, No. 19-321, 2019 WL 5150535 (U.S. Oct. 15, 2019). “California law requires a plaintiff 24 claiming malicious prosecution to establish ‘that the prior action (1) was commenced by or at 25 the direction of the defendant and was pursued to a legal termination in his, plaintiff’s, favor; 26 (2) was brought without probable cause; and (3) was initiated with malice.’” Id. (citations 27 omitted). “Additionally, to maintain a § 1983 action for malicious prosecution, a plaintiff must 28 1 show that the defendants prosecuted [him] … for the purpose of denying [him] equal protection 2 or another specific constitutional right.” Id. (citations and internal quotation marks omitted).1 3 Construing all facts in favor of Plaintiff, as the Court must at the screening stage, 4 Plaintiff has set forth a claim for malicious prosecution, however subject to the immunities 5 discussed below. Plaintiff has claimed that a charge of Malicious Premeditated Homicide was 6 commenced at the direction of the District Attorney, based on the investigation of the 7 Detectives, without probable cause. He also alleges that he was released after being charged.2 8 B. Prosecutorial Immunity 9 Prosecutors acting in their official capacities are immune from Section 1983 lawsuits. 10 The Ninth Circuit explained this immunity as follows:

11 Absolute immunity is generally accorded to judges and prosecutors functioning 12 in their official capacities. Stump v. Sparkman, 435 U.S. 349, 364, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978) (holding that state circuit judge is immune from 13 suit for all actions within his jurisdiction); Imbler v. Pachtman, 424 U.S. 409, 430–31, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) (holding that state prosecutor had 14 absolute immunity for initiation and pursuit of criminal prosecutions, including 15 presentation of case at trial). This immunity reflects the long-standing “general principle of the highest importance to the proper administration of justice that a 16 judicial officer, in exercising the authority vested in him, shall be free to act upon his own convictions, without apprehension of personal consequences to 17 himself.” Bradley v. Fisher, 13 Wall. 335, 347, 20 L.Ed. 646 (1871). 18 Recognizing these considerations, courts have extended the protections of 19 absolute immunity to qualifying state officials sued under 42 U.S.C. § 1983. 20 Miller v. Gammie, 335 F.3d 889, 895–96 (9th Cir.2003) (explaining that though § 1983 does not include a defense of immunity, “the Supreme Court has 21 recognized that when Congress enacted § 1983, it was aware of a well- established and well-understood common-law tradition that extended absolute 22 immunity to individuals performing functions necessary to the judicial process” 23

24 1 Although Plaintiff claims he was “falsely arrested,” the allegations he 25 describes concerns his criminal charge as a result of the investigation, rather than a false arrest. Plaintiff does not describe his arrest. He does not claim there was an arrest without probable 26 cause. The arrest took place ten days after the death of Mr. Arthur Hudson, after investigation described. Thus, the Court believes that the standards for malicious prosecution are the 27 relevant standards in this case. 28 2 Plaintiff’s allegations may not be sufficient to establish malice. Given the Court’s analysis below regarding immunities, the Court need not reach this issue. (citing Forrester v. White, 484 U.S. 219, 225–26 (1988) (superseded by 1 statute))); Buckley v. Fitzsimmons, 509 U.S. 259, 268–69, 113 S.Ct. 2606, 125 2 L.Ed.2d 209 (1993). Indeed, judicial immunity from § 1983 suits is “viewed as necessary to protect the judicial process.” Burns v. Reed, 500 U.S. 478, 485, 111 3 S.Ct. 1934, 114 L.Ed.2d 547 (1991). Likewise, the protections of absolute immunity accorded prosecutors reflect the “‘concern that harassment by 4 unfounded litigation would cause a deflection of the prosecutor's energies from 5 his public duties, and the possibility that he would shade his decisions instead of exercising the independence of judgment required by his public trust.’ ” Id. 6 (quoting Imbler, 424 U.S. at 423, 96 S.Ct. 984).

7 Olsen v. Idaho State Bd. of Medicine, 363 F.3d 916, 922–923 (9th Cir. 2004). See also Broam 8 v. Bogan, 320 F.3d 1023, 1028 (9th Cir. 2003) (“A state prosecutor is entitled to absolute 9 immunity from liability under § 1983 for violating a person's federal constitutional rights when 10 he or she engages in activities ‘intimately associated with the judicial phase of the criminal 11 process.’”); Heinemann v. Satterberg, 731 F.3d 914, 916 (9th Cir. 2013) (upholding district 12 court’s finding on summary judgment that the decision to file a criminal complaint against the 13 defendant in state court was protected by absolute prosecutorial immunity.) 14 Here, Plaintiff has alleged that Assistant District Attorney Nicole Silvera improperly 15 charged him for Malicious Premeditated Homicide despite being aware of certain exculpatory 16 information, including a 911 call and initial witness statement indicating that the person was 17 killed in self-defense. Because Plaintiff’s allegations stem from her actions in her official 18 capacity as prosecutor in his case, Silvera is entitled to absolute immunity from this claim 19 based on the legal standards above. 20 C. Officer Immunity 21 “It is a well-settled principle that the “[f]iling of a criminal complaint immunizes 22 investigating officers ... from damages suffered thereafter because it is presumed that the 23 prosecutor filing the complaint exercised independent judgment in determining that probable 24 cause for an accused's arrest exists at that time. A § 1983 plaintiff may rebut this presumption, 25 however, by showing that the district attorney was pressured or caused by the investigating 26 officers to act contrary to his independent judgment. Such evidence must be substantial.” 27 28 1 Harper v. City of Los Angeles, 533 F.3d 1010, 1027 (9th Cir. 2008) (internal citations and 2 quotations omitted). 3 Here, Plaintiff alleges that Detectives Brum and Vierra are liable for improperly 4 investigating the death of Arthur Hudson by ignoring relevant information in a 911 call that 5 indicated self-defense, and by improperly pressuring a witness to change his account of events, 6 leading to a false charge against Plaintiff. Under the legal standards above, the investigating 7 officers are immune from this charge because it is presumed that the prosecutor made the 8 determination to charge Plaintiff. 9 Moreover, the facts even construed in favor of Plaintiff do not establish that the District 10 Attorney was improperly pressured or caused by the officers to act contrary to her independent 11 judgment On the contrary, Plaintiff alleges that “D.A. Nicole Silvera had the discovery from 12 the onset of the case, she knew of the 911 call that explained the self-defense from day 1. She 13 also knew the officer’s threatened the only witness for the prosecution with being an 14 accomplice if he didn’t change his statement.” (ECF No. 6, at p. 3-4). 15 D. Professional Negligence 16 Plaintiff also alleges that his attorney, Douglas Foster, was purposefully negligent in his 17 defense. 18 Under California common law, the elements of a claim for professional negligence are: 19 “(1) the duty of the professional to use such skill, prudence, and diligence as other members of 20 his profession commonly possess and exercise; (2) a breach of that duty; (3) a proximate causal 21 connection between the negligent conduct and the resulting injury; and (4) actual loss or 22 damage resulting from the professional’s negligence.” Osornio v. Weingarten, 124 Cal.App.4th 23 304, 319 (2004). 24 Plaintiff’s allegations may state a cause of action under California law for professional 25 negligence under these legal standards, but the Court does not reach this question because any 26 claim would be under state law, and without a viable federal claim, this Court lacks jurisdiction 27 over purely state law claims. 28 U.S.C. § 1367. The Court recommends that this claim be 28 dismissed without prejudice to Plaintiff refiling his claim in state court. 1 IV. CONCLUSION AND RECOMMENDATIONS 2 For the reasons described above, the Court recommends that Plaintiff’s claim for 3 malicious prosecution against the District Attorney, Nicole Silvera, be dismissed based on 4 absolute prosecutorial immunity. The Court recommends that Plaintiff’s claim against 5 Detectives Brum and Vierra be dismissed because the prosecutor’s independent decision to 6 charge Plaintiff immunizes them from claims arising from their investigation. The Court 7 recommends that Plaintiff’s claim against his attorney, Douglas Foster, be dismissed without 8 prejudice because the Court lacks jurisdiction over this solely state law claim. 9 The Court does not recommend granting further leave to amend because the Court 10 previously provided Plaintiff with applicable legal standards and an opportunity to amend his 11 complaint, and further amendment would be futile. 12 Accordingly, the Court HEREBY RECOMMENDS that: 13 1. Plaintiff’s claim for malicious prosecution against the District Attorney, 14 Nicole Silvera, be dismissed with prejudice based on absolute 15 prosecutorial immunity; 16 2. Plaintiff’s claim against Detectives Brum and Vierra be dismissed with 17 prejudice because the prosecutor’s independent decision to charge 18 Plaintiff immunizes them from claims arising from their investigation; 19 3. Plaintiff’s claim against his attorney, Douglas Foster, be dismissed 20 without prejudice because the Court lacks jurisdiction over this solely 21 state law claim 22 4. The Clerk of the Court be directed to close this case. 23 These findings and recommendations are submitted to the district judge assigned to the 24 case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty-one (21) days after 25 being served with these findings and recommendations, Plaintiff may file written objections 26 with the court. Such a document should be captioned, “Objections to Magistrate Judge’s 27 Findings and Recommendations.” Plaintiff is advised that failure to file objections within the 28 wOAOe ££ UV YG OUT NOMIC a ee AY tl I AN

1 || specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 2 || 834, 839 (9th Cir. 2014) (quoting Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 3 4 IT IS SO ORDERED. > || Dated: _May 6, 2020 [sf hey — 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28