Krause v. Yavapai, County of

Opinion

1 WO JL 2 3 4 5 8 9 Jason Derek Krause, No. CV 19-08054-PCT-MTL (ESW) 10 Plaintiff, 11 v. ORDER 12 Yavapai County, et al., 13 Defendants.

14 15 Plaintiff Jason Derek Krause, through counsel, brought this civil rights case 16 pursuant to 42 U.S.C. § 1983. On September 4, 2019, Defendant Ernest Peele filed a 17 Motion to Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). On February 11, 18 2020, Defendants Yavapai County, Yavapai County Sheriff Scott Mascher, Officer 19 Belmore, Mike Dannison, Gordon Diffendaffer, Gene McFarland, Dennis Price, Roger 20 Williamson, and Mike Winney (the “Yavapai County Defendants”) and Defendants Dick 21 Erfert, Edward Hueske, and Terry Weaver (the “State Defendants”) filed a Joint Motion to 22 Dismiss pursuant to Rule 12(b)(6) and Rule 12(c), asserting that Plaintiff’s claims are time- 23 barred. In addition to his own Motion to Dismiss, on February 12, 2020, Defendant Peele 24 joined the Yavapai County Defendants and State Defendants’ Joint Motion to Dismiss. 25 In an April 3, 2020 Order, the Court granted Defendant Peele’s Motion to Dismiss 26 and denied the Yavapai County Defendants and State Defendants’ Joint Motion to Dismiss. 27 On April 13, 2020, the Yavapai County Defendants and State Defendants filed a Joint 28 Motion to Amend/Correct the April 3, 2020 Order. (Doc. 84.) On April 17, 2020, Plaintiff 1 filed a Motion for Reconsideration of the Court’s decision to grant Defendant Peele’s 2 Motion to Dismiss. (Doc. 86.) On April 27, 2020, Plaintiff filed a Response in Opposition 3 (Doc. 87) to the Joint Motion to Amend/Correct, and on May 4, 2020, the Yavapai County 4 Defendants and State Defendants filed a Reply to Plaintiff’s Response to their Motion to 5 Amend/Correct (Doc. 88). 6 The Court will grant in part and deny in part the Yavapai County Defendants and 7 State Defendants’ Joint Motion to Amend/Correct and will deny Plaintiff’s Motion for 8 Reconsideration. 9 I. Motion to Amend/Correct and Motion for Leave to File Interlocutory Appeal 10 A. Motion to Amend/Correct 11 In their Motion to Amend/Correct, the Yavapai County Defendants and the State 12 Defendants ask the Court, in part, to correct references in the April 3, 2020 Order to not 13 refer to Defendants collectively. Although it is not at all clear that there is any confusion 14 surrounding the identity of the parties who sought dismissal, the Court will grant the 15 Motion to Amend to the extent that the Court will amend the April 3, 2020 Order as 16 follows:

17 Page 13 is amended to read: 18 IT IS ORDERED: 19 (1) The reference to the Magistrate Judge is withdrawn as to Defendant 20 Peele’s Motion to Dismiss (Doc. 62) and the Yavapai County 21 Defendants and the State Defendants’ Joint Motion to Dismiss (Doc. 75). 22 (2) The Yavapai County Defendants and the State Defendants’ Joint Motion to 23 Dismiss (Doc. 75) is denied. 24 . . . 25 (6) The remaining Defendants are Yavapai County, Mascher, Belmore, 26 Dannison, Diffendaffer, McFarland, Price, Williamson, Winney, 27 Erfert, Hueske, and Weaver. The remaining claims are the § 1983 claim in Count I against all individual Defendants except Peele; the 28 claim in Count II against Defendant Mascher based on supervisory 1 liability; and the Monell claim in Count III against Yavapai County. 2 3 In all other respects, the Yavapai County Defendants and the State Defendants’ 4 Motion to Amend will be denied. 5 B. Motion for Leave to Take Interlocutory Appeal 6 The Yavapai County Defendants and the State Defendants also seek leave, pursuant 7 to 28 U.S.C. § 1292(b), to take an interlocutory appeal from the Court’s denial of their 8 Joint Motion to Dismiss based on the statute of limitations. (Doc. 84 at 3.) 9 Section 1292(b) provides,

10 When a district judge, in making in a civil action an order not otherwise 11 appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for 12 difference of opinion and that an immediate appeal from the order may 13 materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have 14 jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it 15 within ten days after the entry of the order: Provided, however, That 16 application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall 17 so order. 18 19 Generally, appellate review is available only after a district court has entered a final 20 judgment. 28 U.S.C. § 1291. The Supreme Court has explained that this general rule 21 serves “important purposes,” including “emphasiz[ing] the deference that appellate courts 22 owe to the trial judge as the individual initially called upon to decide the many questions 23 of law and fact that occur in the course of a trial,” “avoid[ing] the obstruction to just claims 24 that would come from permitting the harassment and cost of a succession of separate 25 appeals,” and “promoting efficient judicial administration.” Firestone Tire & Rubber Co. 26 v. Risjord, 449 U.S. 368, 374 (1981) (internal quotation marks and citations omitted). 27 Interlocutory appeals are “generally disfavored because they are disruptive, time- 28 consuming, and expensive.” Chamberlan v. Ford Motor Co., 402 F.3d 952, 959 (9th Cir. 1 2005) (citation omitted). Interlocutory appeals also “add to the heavy workload of the 2 appellate courts” and “require consideration of issues that may become moot.” Id. Thus, 3 certification of interlocutory appeals should be granted only in “exceptional 4 circumstances.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 475 (1978). 5 There are three requirements for certification of an interlocutory appeal pursuant to 6 § 1292(b): “(1) that there be a controlling question of law; (2) that there be substantial 7 grounds for difference of opinion; and (3) that an immediate appeal may materially 8 advance the ultimate termination of the litigation.” In re Cement Antitrust Litigation, 673 9 F.2d 1020, 1026 (9th Cir. 1982), aff’d 459 U.S. 1190 (1983) (emphasis added). These 10 requirements are expressed in the conjunctive; therefore, Defendants must carry their 11 burden as to all three factors. See Villareal v. Caremark LLC, 85 F. Supp. 3d 1063, 1067 12 (D. Ariz. 2015); see also Ahrenholz v. Bd. of Trustees of Univ. of Illinois, 219 F.3d 674, 13 676-77 (7th Cir. 2000) (noting that unless all the criteria are satisfied, “the district court 14 may not and should not certify its order to [the court of appeals] for an immediate appeal 15 under section 1292(b)”). Thus, as expressed by the Seventh Circuit, “there must be a 16 question of law, it must be controlling, [and] it must be contestable.” Ahrenholz, 219 F.3d 17 at 676-77 (emphasis in original). 18 The Ninth Circuit has emphasized that § 1292(b) is “to be used only in exceptional 19 situations in which allowing an interlocutory appeal would avoid protracted and expensive 20 litigation.” Id. The party seeking certification of an interlocutory appeal has the burden to 21 show the presence of exceptional circumstances that warrant departure from the “basic 22 policy of postponing appellate review until after the entry of a final judgment.” Coopers 23 & Lybrand, 437 U.S. at 475; see also Villareal, 85 F. Supp. 3d at 1067. 24 Because § 1292(b) “is a departure from the normal rule that only final judgments 25 are appealable,” it “must be construed narrowly.” James v. Price Stern Sloan, Inc., 283 26 F.3d 1064, 1068 n.6 (9th Cir. 2002). “‘It is not thought that district judges would grant the 27 certificate in ordinary litigation which could otherwise be promptly disposed of or that 28 mere question[s] as to the correctness of the ruling would prompt the granting of the 1 certificate.’” Loritz v. CMT Blues, 271 F. Supp. 2d 1252, 1254 (S.D. Cal. 2003) (quoting 2 See United States v. Woodbury, 263 F.2d 784, 785 n.2 (9th Cir. 1959)). In other words, 3 section 1292(b) was not intended “‘merely to provide review of difficult rulings in hard 4 cases.’” Environmental Protection Information Center v. Pacific Lumber Co., 2004 WL 5 838160, at *2 (N.D. Cal. April 19, 2004) (quoting United States Rubber Co. v. Wright, 359 6 F.2d 784, 785 (9th Cir. 1966)). 7 “The decision to certify an order for interlocutory appeal is committed to the sound 8 discretion of the district court.” United States v. Tenet Healthcare Corp., 2004 WL 9 3030121, at *1 (C.D. Cal. Dec. 27, 2004) (citing Swint v. Chambers Cnty. Comm’n, 514 10 U.S. 35, 47 (1995)). Thus, “[e]ven when all three of § 1292(b)’s criteria are met, the district 11 court retains unfettered discretion to deny a motion to certify for interlocutory review.” 12 Juliana v. United States, 2018 WL 4997032, at *32 (D. Or. Oct. 15, 2018). 13 1. Controlling Question of Law 14 In this case, the Yavapai County Defendants and the State Defendants disagree with 15 the Court’s determination that Plaintiff’s claims accrued on February 22, 2017, rather than 16 on October 3, 2016, as the Yavapai County Defendants and the State Defendants contend. 17 This is not a “pure” or “abstract” question of law. The Ninth Circuit has stated that the 18 “controlling question of law requirement [should] be interpreted in such a way to 19 implement th[e] policy” of applying section 1292(b) “sparingly and only in exceptional 20 cases.” In re Cement Antitrust Litig., 673 F.2d at 1027. In the Ninth Circuit, “all that must 21 be shown in order for a question to be ‘controlling’ is that resolution of the issue on appeal 22 could materially affect the outcome of litigation in the district court.” Id. at 1026. 23 “Examples of controlling questions of law include fundamental issues such as ‘the 24 determination of who are necessary and proper parties, whether a court to which a case has 25 been transferred has jurisdiction, or whether state or federal law should be applied.”’ Rieve 26 v. Coventry Health Care, Inc., 870 F. Supp. 2d 856, 879 (C.D. Cal. 2012) (quoting In re 27 Cement Antitrust Litig., 673 F.2d at 1026-27). 28 1 The Yavapai County Defendants and the State Defendants assert that “the issue of 2 the applicable statute of limitations and whether that statute of limitations was tolled prior 3 to filing the underlying lawsuit are controlling questions of law” in this case. (Doc. 84 at 4 4.) But that is true any time a court decides a pretrial dispositive motion. If an 5 interlocutory appeal is warranted any time an issue could materially affect the outcome of 6 litigation, then “a party would be able to appeal every time summary judgment is denied 7 even though interlocutory appeals should be heard only in exceptional cases.” McDonnell 8 v. Riley, No. 15-cv-01832-BLF, 2016 WL 613430, at *5 (N.D. Cal. Feb. 16, 2016) (citing 9 In re Cement Antitrust Litig., 673 F.2d at 1026); see also Ahrenholz, 219 F.3d at 676 (noting 10 that “it might seem that the statutory criteria for an immediate appeal would be satisfied in 11 every case in which summary judgment was denied on a nonobvious ground. But that 12 cannot be right. Section 1292(b) was not intended to make denials of summary judgment 13 routinely appealable”). The Court declines to interpret the first requirement so broadly. 14 Although the issue Yavapai County Defendants and the State Defendants wish to 15 resolve before continuing this litigation is “the applicable statute of limitations and whether 16 that statute of limitations was tolled prior to filing the underlying lawsuit,” that is not a 17 “controlling question of law” within the meaning of § 1292(b). Thus, the Yavapai County 18 Defendants and the State Defendants have not met their burden as to the first requirement 19 under § 1292(b). 20 2. Substantial Ground for Difference of Opinion 21 The Yavapai County Defendants and the State Defendants contend that “there is 22 conflicting authority” on the statute of limitations issue. (Doc. 84 at 4.) In support of this 23 assertion, the Yavapai County Defendants and the State Defendants point to the parties’ 24 disagreement about when Plaintiff’s claims accrued and the Court’s findings and 25 conclusion that Plaintiff’s claims are not time-barred. (Id.) But the source of “conflicting 26 authority” cannot simply be a disagreement between the parties regarding the outcome of 27 the case. “Courts traditionally will find that a substantial ground for difference of opinion 28 exists where the circuits are in dispute on the question and the court of appeals of the circuit 1 has not spoken on the point, if complicated questions arise under foreign law, or if novel 2 and difficult questions of first impression are presented.” Couch v. Telescope Inc., 611 3 F.3d 629, 633 (9th Cir. 2010) (internal quotations and citation omitted). The Yavapai 4 County Defendants and the State Defendants rely solely on their disagreement with the 5 Court’s conclusions to support the assertion that there is “conflicting authority” on the 6 statute of limitations issue. (Id. at 5.) They have identified no other case in which a court 7 reached a decision that conflicts with this Court’s decision. See Lucas v. Hertz Corp., No. 8 C 11-01581 LB, 2012 WL 5199384, at *4 (N.D. Cal. Oct. 22, 2012) (finding party had not 9 shown a “substantial ground for difference of opinion” where party did not cite any orders 10 from other courts that conflicted with the court’s order). Accordingly, the Court finds the 11 Yavapai County Defendants and the State Defendants have not met their burden with 12 respect to the second factor. 13 3. Materially Advance Termination of Litigation 14 The Yavapai County Defendants and the State Defendants contend that if this case 15 proceeds, “it will assuredly call heavily upon the resources, money, time, and commitment 16 of all parties” and “will likely involve substantial litigation on various issues which are 17 likely to require substantial discovery.” (Doc. 84 at 6.) An immediate appeal decided in 18 favor of the Yavapai County Defendants and the State Defendants would undoubtedly end 19 this lawsuit. See United States v. Woodbury, 263 F.2d 784, 787 (9th Cir. 1959) (“Section 20 1292(b) was intended primarily as a means of expediting litigation by permitting appellate 21 consideration during the early stages of litigation of legal questions which, if decided in 22 favor of the appellant, would end the lawsuit” and citing question relating to a statute of 23 limitations as such a question). However, merely advancing the ultimate termination of 24 litigation is insufficient. An interlocutory appeal would materially advance the ultimate 25 termination of litigation every time a court decides a pretrial dispositive motion. The Court 26 declines to interpret the third requirement so broadly; the Yavapai County Defendants and 27 the State Defendants must “do more than just note that granting [a motion to dismiss] would 28 end litigation.” Id. 1 The Court finds the Yavapai County Defendants and the State Defendants have not 2 met this burden. The only considerations they offer—general saving of time and 3 resources—apply in every case that is decided before a trial and are not extraordinary or 4 exceptional circumstances that warrant certifying the case for an interlocutory appeal. 5 Moreover, as this Court has observed, “although the parties and the court will waste 6 resources if the court has erred, that concern is outweighed by the substantial prejudice 7 plaintiffs will suffer if they are further delayed in bringing their case to fruition.” Hannah 8 v. General Motors Corp., No. CV 93-1368-PHX-RCB, 1994 WL 924259, at *7 (D. Ariz. 9 Oct. 7, 1994). 10 4. Other Considerations 11 Notwithstanding the factors set forth in In re Cement Antitrust Litigation, as noted 12 above, the Court retains discretion to deny certification for an interlocutory appeal. See In 13 re LDK Solar Sec. Litig., 584 F. Supp. 2d 1230, 1258 (N.D. Cal. 2008). The Court finds 14 that the Yavapai County Defendants and the State Defendants have not met their burden of 15 showing that “exceptional circumstances” justify the certification of an interlocutory 16 appeal. The legal question at issue—whether the statute of limitations bars Plaintiff’s 17 § 1983 claims for malicious prosecution—is neither novel nor difficult. See Reese, 643 18 F.3d at 688 (noting that “[c]ourts traditionally will find that a substantial ground for 19 difference of opinion exists where ... novel and difficult questions of first impression are 20 presented”) (quoting Couch, 611 F.3d at 633). The Yavapai County Defendants and the 21 State Defendants have not identified any extraordinary circumstances that transform the 22 issue into anything beyond a garden variety statute of limitations dispute. See Hannah, 23 1994 WL 924259, at *7 (declining to certify statute of limitations ruling for interlocutory 24 appeal because exceptional circumstances were not present, and the issue implicated 25 factual issues). The Court finds these additional considerations weigh against certifying 26 the case for an interlocutory appeal. 27 For the foregoing reasons, the Court will deny the Yavapai County Defendants and 28 the State Defendants’ request that the Court certify the April 3, 2020 Order as appropriate 1 for an interlocutory appeal pursuant to 28 U.S.C. § 1292(b). 2 II. Motion for Reconsideration 3 In his Motion for Reconsideration, Plaintiff contends the Court erred in determining 4 that Defendant Peele was absolutely immune for his conduct with respect to Peele’s report 5 involving CBLA analysis and that Plaintiff had not sufficiently alleged that Peele was a 6 state actor. (Doc. 86.) 7 A. Reconsideration Standard 8 Motions for reconsideration should be granted only in rare circumstances. 9 Defenders of Wildlife v. Browner, 909 F. Supp. 1342, 1351 (D. Ariz. 1995). A motion for 10 reconsideration is appropriate where the district court “(1) is presented with newly 11 discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, 12 or (3) if there is an intervening change in controlling law.” School Dist. No. 1J, Multnomah 13 County v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Such motions should not be 14 used for the purpose of asking a court “‘to rethink what the court had already thought 15 through – rightly or wrongly.’” Defenders of Wildlife, 909 F. Supp. at 1351 (quoting Above 16 the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D. Va. 1983)). A motion 17 for reconsideration “may not be used to raise arguments or present evidence for the first 18 time when they could reasonably have been raised earlier in the litigation.” Kona Enters., 19 Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000). Nor may a motion for 20 reconsideration repeat any argument previously made in support of or in opposition to a 21 motion. Motorola, Inc. v. J.B. Rodgers Mech. Contractors, Inc., 215 F.R.D. 581, 586 (D. 22 Ariz. 2003). Mere disagreement with a previous order is an insufficient basis for 23 reconsideration. See Leong v. Hilton Hotels Corp., 689 F. Supp. 1572, 1573 (D. Haw. 24 1988). 25 B. Absolute Immunity 26 1. Plaintiff’s Allegations in the FAC 27 In Count I of the Amended Complaint, Plaintiff sues Defendant Peele for section 28 1983 violations as an “agent” for Yavapai County. (Doc. 56 at 39 ¶ 222.) In Count IV, 1 Plaintiff asserts a Bivens claim against Peele in his capacity as an FBI agent. (Id.) Plaintiff 2 alleges that Peele “was retained by Yavapai County to provide forensic examination, 3 analysis and testimony with respect to Comparative Lead Bullet Analysis evidence.” (Id. 4 at 3 ¶ 8.) Plaintiff claims Peele “was acting under color of state and federal law and the 5 course and scope of his agency and employment relationship with Yavapai County and the 6 Federal Bureau of Investigation, and was working at the direction and control of Yavapai 7 County and the YCSO with respect to the underlying criminal case” against Plaintiff. (Id.) 8 Plaintiff’s claim against Peele is that he conducted a “deliberately reckless forensic analysis 9 that was indifferent to [Plaintiff’s constitutional rights” and that Peele “participated in the 10 investigation that resulted in [Plaintiff’s] wrongful arrest, prosecution, conviction and 11 imprisonment.” (Id.) 12 Plaintiff alleges that Yavapai County retained Peele, “an expert in Comparative 13 Bullet Lead Analysis,” (hereinafter “CBLA”) to “analyze the bullet that killed [the victim], 14 and compare it to a bullet found on [Plaintiff’s] property.” (Id. at 20-21 ¶ 120.) Plaintiff 15 claims that Peele “conduct[ed] CBLA” and “prepared a report purporting to provide 16 reliable evidence that the bullet that killed [the victim] came from a package of ammunition 17 that [Plaintiff] voluntarily turned over to” law enforcement authorities. (Id.) Plaintiff 18 asserts that in his report and subsequent trial testimony, Peele “stated that he used CBLA 19 to establish that the bullet that killed [the victim] came from the package of ammunition 20 [Plaintiff] turned over to police.” (Id. at 21 ¶ 121.) Plaintiff claims that through his report, 21 Peele “provided Yavapai County the purported scientific support it needed to wrongfully 22 convict [Plaintiff], which directly led to his wrongful conviction.” (Id. ¶ 122.) Plaintiff 23 alleges that at the time he wrote his report, Peele “personally knew—and had personally 24 proven in his own studies—that CBLA is entirely unreliable and invalid.” (Id. ¶ 123.) 25 Plaintiff asserts that Peele “reported and testified” that Peele “analyzed and 26 compared the bullet fragments from the scene with [Plaintiff’s] unfired cartridges,” his 27 tests determined the quantities of antimony, bismuth, copper, and silver. (Id. ¶¶ 125-26.) 28 Plaintiff claims Peele testified at trial that the results indicated that the bullets “have been 1 in the same box.” (Id. ¶ 127.) Plaintiff alleges Peele “asserted the lead fragment that went 2 through [the victim’s] head was consistent with the cartridges originating from [Plaintiff’s] 3 box of ammunition.” (Id. at 22 ¶ 128.) Plaintiff claims that Peele noted in his report that 4 the specimens were “analytically indistinguishable.” (Id. ¶ 129.) 5 Plaintiff alleges that well before his work on behalf of Yavapai County in Plaintiff’s 6 criminal case, Peele “personally knew that his opinions lacked scientific basis” and 7 “concealed relevant evidence and fabricated his test results in [Plaintiff’s] murder case, 8 with deliberate indifference to [Plaintiff’s] constitutional rights and to the truth,” and this 9 “concealment and fabrication directly led to [Plaintiff’s] conviction.” (Id. at 22 ¶ 134.) 10 2. Plaintiff’s Contentions 11 Plaintiff contends the Court erred in finding that Defendant Peele was entitled to 12 absolute immunity for preparing his report. (Doc. 86 at 4.) Plaintiff asserts that Ninth 13 Circuit law distinguishes acts that are “preparatory” to testimony from “non-testimonial 14 acts.” (Id.) He further argues that the Ninth Circuit in Lisker v. City of Los Angeles, 780 15 F.3d 1237 (9th Cir. 2015), clarified that “investigatory activity and forensic reports are 16 ‘non-testimonial’ acts for which absolute immunity is not available.” (Id.) Plaintiff 17 contends that police and other investigative materials, including “forensic reports,” have 18 “evidentiary value unrelated to trial testimony – these materials not only affect initial 19 charging decisions but also post-charging activities such as continuing with the prosecution 20 and plea-bargaining decisions.” (Id.) 21 3. Analysis 22 As an initial matter, the Court notes that in Count IV, Plaintiff makes various legal 23 assertions concerning whether Peele acted under color of state law and whether his report 24 “falls outside of the protection of absolute immunity.” (Id. at 41 ¶ 225.) The Court need 25 not accept these legal conclusions. See Sprewell v. Golden State Warriors, 266 F.3d 979, 26 988 (9th Cir. 2001) (in evaluating a motion to dismiss, a court is not required to accept as 27 true “unwarranted deductions of fact” or “unreasonable inferences”); see also Clegg v. Cult 28 Awareness Network, 18 F.3d 752, 754 (9th Cir. 1994) (a court is not required to accept 1 “legal conclusions cast in the form of factual allegations if those conclusions cannot 2 reasonably be drawn from the facts alleged”). 3 Plaintiff cites Gregory and Keko v. Hingle, 318 F.3d 639 (5th Cir. 2003), also cited 4 by the Ninth Circuit in Lisker, for the proposition that Defendant Peele is not entitled to 5 absolute immunity for allegedly fabricating his expert forensic report. (Doc. 86 at 4.) 6 Plaintiff ascribes much significance to the Ninth Circuit’s citations to Gregory and Keko, 7 but those cases do not help him. 8 In Gregory, the plaintiff alleged that a forensic examiner who worked for the state 9 police crime laboratory had fabricated evidence when she construed and documented the 10 plaintiff’s hair as a “match” to those found at the crime scene and knowingly withheld the 11 existence of two non-matching hairs. 444 F.3d at 732. The state forensic examiner later 12 testified at the plaintiff’s criminal trial. Id. at 732, 735. The Sixth Circuit noted that 13 “absolute testimonial immunity does not ‘relate backwards’ to ‘protect [a defendant] for 14 any activities he allegedly engaged in prior to taking the witness stand for his [] 15 testimony.’” Id. at 738. Thus, “[s]ubsequent testimony can not insulate previous 16 fabrications of evidence merely because the testimony relies on that fabricated evidence.” 17 Id. at 738-39. In addition, “‘[e]xpert’ forensic examiners act in an investigatory fashion 18 when they interpret and document physical evidence.” Id. at 740. The Sixth Circuit 19 concluded that under the Supreme Court’s “functional test” set forth in Buckley, “the pre- 20 trial investigatory acts by forensic examiners merit no more protection under absolute 21 immunity than do other persons performing investigatory actions.” Id. 22 The key distinction between Defendant Peele’s report in this case and the evidence 23 at issue in Lisker, Gregory, and Keko is that Defendant Peele prepared his report after 24 probable cause to arrest and charge Plaintiff had been established. Peele’s report cannot 25 plausibly be characterized as “police investigative material.” See Sprewell, 266 F.3d at 26 988. Peele is not a police officer, and he did not “investigate” the homicide to determine 27 who was the perpetrator and to collect enough evidence to charge a suspect. Nor can 28 Peele’s report be construed as similar enough to police investigative material that is 1 fabricated before an arrest or indictment, as in Lisker and Gregory, to warrant denial of 2 absolute immunity for the statements in the report, which was prepared after Plaintiff’s 3 arrest and indictment. Thus, notwithstanding Plaintiff’s attempt to frame the inquiry as 4 how long before Plaintiff’s trial Peele wrote his report, the report was procured to help 5 prove the prosecution’s case, not to support the initiation of a case. Plaintiff’s allegations 6 demonstrate that Peele’s report, unlike the non-testimonial materials in the Murder Book 7 in Lisker, was pretrial activity “aimed exclusively at influencing testimony.” Id. at 1242. 8 And even if Plaintiff is correct that Gregory and Keko would require a different conclusion, 9 as he points out, extra-circuit decisions are not binding on this Court.1 10 In sum, the Court did not err in concluding that Defendant Peele is absolutely 11 immune for the contents of his report, regardless of whether Peele testified at Plaintiff’s 12 trial. The Court will therefore deny Plaintiff’s Motion for Reconsideration as to absolute 13 immunity. 14 Although the Court need not address Plaintiff’s other arguments in his Motion for 15 Reconsideration, the Court will, nevertheless, briefly address Plaintiff’s argument that the 16 Court erred in concluding that he had not sufficiently alleged that Peele was a “state actor” 17 for purposes of § 1983. 18 C. State Actor 19 Plaintiff contends that the Court “overlooked” his factual allegations regarding 20 whether Peele acted under color of state law and the inferences to be drawn from these 21 allegations. (Doc. 86 at 11.) Specifically, Plaintiff cites the following allegations in the 22 First Amended Complaint:

23 Peele was an (a) FBI agent; (b) retained by the County, (c) was acting within 24 the course and scope of his agency and employment relationship with Yavapai County and the Federal Bureau of Investigation; (d) was working at the 25

26 1 Plaintiff takes issue with the Court’s citation to Buckley v. Fitzsimmons, 919 F.2d 1230 (7th Cir. 1990), stating that “Buckley is not the law in the Ninth Circuit, and to the 27 extent it states a different absolute immunity rule than Lisker, this Court must follow Lisker.” (Doc. 86 at 8.) Plaintiff’s preferred cases—Gregory and Keko—are also not the 28 law in this circuit than Buckley and are therefore entitled to no more weight than Plaintiff suggests is due the decision in Buckley. direction and control of Yavapai County with respect to the underlying 1 criminal case against Plaintiff; and (e) was hired to conduct a CBLA analysis 2 of the evidence in the case. 3 (Id.; see Doc. 56 at 3-4 ¶ 8.) Thus, according to Plaintiff, his allegation “is not that 4 Defendant Peele was a ‘private expert,’ but that he was an FBI agent engaged by a 5 subdivision of the State of Arizona . . . to assist it with a criminal investigation.” (Id. at 6 11-12.) 7 The Supreme Court has held that to constitute state action, “the conduct allegedly 8 causing the deprivation of a federal right may be fairly attributable to the State.” Lugar v. 9 Edmondson Oil Co., 457 U.S. 922, 937 (1982). Actions are “fairly attributable” to the 10 government where “there is a sufficiently close nexus between the State and the challenged 11 action of the regulated entity.” Jackson v. Metropolitan Edison Co., 419 U.S. 345, 351 12 (1974). The Supreme Court has set forth a two-part approach to the question of “fair 13 attribution.” Lugar, 457 U.S. at 937. “First, the deprivation must be caused by the exercise 14 of some right or privilege created by the State or by a rule of conduct imposed by the state 15 or by a person for whom the State is responsible.” Id. “Second, the party charged with the 16 deprivation must be a person who may fairly be said to be a state actor. This may be 17 because he is a state official, because he has acted together with or has obtained significant 18 aid from state officials, or because his conduct is otherwise chargeable to the State.” Id. 19 Put another way, the required nexus between the State and the challenged conduct “exists 20 either (1) where the state “has exercised coercive power [over a private decision] or has 21 provided such significant encouragement, either overt or covert, that the choice must in 22 law be deemed to be that of the State”; or (2) where “the private entity has exercised powers 23 that are ‘traditionally the exclusive prerogative of the State.’” Blum v. Yaretsky, 457 U.S. 24 991, 1004 (1982). 25 Plaintiff has not alleged that Yavapai County or the State “coerce[d]” Defendant 26 Peele into fabricating evidence in his report or that they provided Peele “significant 27 encouragement, either overt or covert.” Id. In addition, Plaintiff has not alleged facts to 28 support a conclusion that Peele operated as a “willful participant in joint activity with the State or its agents.” Lugar, 457 U.S. at 941. And Peele’s preparation of an expert report 2| inacriminal trial is not a power that is “traditionally the prerogative of the State.” Blum, 3| 457US. at 1004. 4 Plaintiff argues that “one reasonable inference which Plaintiff must be afforded is 5 | that state or county law enforcement engagement of Defendant Peele was pursuant to an 6 | intergovernmental agreement in which the State or County worked jointly with the FBI’s 7 | crime lab on criminal investigations.” (/d. at 12.) Plaintiff is not entitled to this inference. 8 | Plaintiff alleges no facts to support an inference that Yavapai County retained Peele 9| “pursuant to an intergovernmental agreement.” Plaintiff does not identify such an 10 | agreement or allege any facts that suggest that Yavapai County and the FBI jointly agreed 11 | that the FBI’s crime lab would “work[] jointly” on criminal investigations. □□□□□□□□□□□ 12 | allegations are insufficient to support a conclusion that Peele acted under color of state law. 13| Cf Price v. Hawaii, 939 F.2d 702, 708 (9th Cir. 1991) (requiring more than 14| “‘[c]Jonclusionary allegations, unsupported by facts’” to consider a private party a state 15 | actor for the purposes of § 1983) (quoting Jones v. Community Redevelopment Agency, 16| 733 F.2d 646, 649 (9th Cir. 1984)). The Court did not err in granting Peele’s Motion to 17 | Dismiss. 18 For the foregoing reasons, the Court will deny Plaintiff's Motion for 19 | Reconsideration. ORDERED: 21 (1) The Joint Motion to Amend/Correct (Doc. 84) the April 3, 2020 Order is 22 | granted in part as set forth herein. The Joint Motion to Amend/Correct is denied as to 23 | the request for certification of this case as appropriate for interlocutory appeal. 24 (2) Plaintiff's Motion for Reconsideration (Doc. 86) is denied. 25 Dated this 14th day of May, 2020. Wichadl T. dibund Michael T. Liburdi 28 United States District Judge