Steven Kayser v. Whatcom County

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 28 2022 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

STEVEN L. KAYSER; GLORIA YOUNG, No. 21-35860 individually, and as husband and wife, D.C. No. 2:18-cv-01492-RSM Plaintiffs-Appellants,

v. MEMORANDUM*

WHATCOM COUNTY, a political subdivision of the State of Washington; DAVID S. MCEACHRAN, Prosecuting Attorney for Whatcom County,

Defendants-Appellees.

Appeal from the United States District Court for the Western District of Washington Ricardo S. Martinez, Chief District Judge, Presiding

Submitted June 6, 2022** Seattle, Washington

Before: GILMAN,*** IKUTA, and MILLER, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Ronald Lee Gilman, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. Plaintiffs Steven L. Kayser and Gloria Young appeal the district court’s

grant of summary judgment in favor of Defendants Whatcom County and

Prosecutor David S. McEachran. We have jurisdiction under 28 U.S.C. § 1291,

and we affirm.

A county can be liable under 42 U.S.C. § 1983 if the county “itself ‘subjects’

a person to a deprivation of rights or ‘causes’ a person ‘to be subjected’ to such

deprivation.” Connick v. Thompson, 563 U.S. 51, 60 (2011) (citation omitted). In

Kayser v. Whatcom County (Kayser I), 804 F. App’x 620, 622 (9th Cir. 2020), we

affirmed the district court’s decision to dismiss for failure to state a claim

Plaintiffs’ Brady claims that were based on the County’s alleged longstanding

practice or custom of unconstitutionally suppressing evidence and the County’s

alleged failure to train its employees about their constitutional duties. We based

this conclusion on the fact that Plaintiffs had “failed to allege that the County

suppressed evidence in any case other than [Kayser’s] two trials.” Id. (citation

omitted). But we also held that Plaintiffs’ allegations were sufficient to state

a § 1983 claim against the County and McEachran “for constitutional injuries

inflicted by the implementation of a local government’s official policies.” Id.

(citation omitted).

Because McEachran was sued in his official capacity only, Plaintiffs’ claims

are solely against the County. Kentucky v. Graham, 473 U.S. 159, 165–66 (1985)

2 (holding that official-capacity suits “represent only another way of pleading an

action against an entity of which an officer is an agent” (citation omitted)). Based

on the evidence produced after remand, we now affirm the district court’s decision

that Defendants did not implement an unconstitutional Brady policy.

The only written policy relevant to our analysis is the Prosecutor’s because

this was the only written policy in place by the time of Kayser’s trial in 2013.

Nothing in the record demonstrates that the Prosecutor’s 2013 policy caused the

alleged deprivation of Kayser’s constitutional rights by allowing the prosecution to

impermissibly omit Brady material from its disclosures. Although the policy

specifically addresses the disclosure of Brady material as it applies to impeachment

evidence for recuring investigative or professional witnesses, the policy does not

state that it encompasses all of the requirements associated with disclosing Brady

material. Rather, the policy provides that prosecutors have an “affirmative duty to

disclose potentially exculpatory information to a charged defendant.” We thus

agree with the district court that “the policy specifically addressed a smaller galaxy

within the Brady universe[,]” but this does not “imply that prosecutors were free to

destroy all other galaxies in the Brady universe” based on the Prosecutor’s policy.

Plaintiffs’ arguments on this point are unavailing. They first contend that

because the Sheriff had no written Brady policy during the time that Kayser was

charged and tried―and the Prosecutor did not adopt a written policy until June

3 2013―the County committed a constitutional violation. But Plaintiffs cite no

authority to support their argument that the lack of a written policy is ipso facto

unconstitutional.

In addition, Plaintiffs argue that the lack of a general written Brady policy

“caused consistent misunderstandings” about what must be disclosed under Brady

and created “unwritten policies [that] would necessarily deprive defendants of their

constitutional rights.” The argument that the County had an unwritten policy of

omitting Brady material amounts to an argument that it abided by a custom or

practice to do so. But we have already dismissed such a claim. See Kayser I, 804

F. App’x at 622.

In the absence of any general municipal policy, there are “three situations in

which isolated constitutional violations are sufficient to establish a municipal

‘policy.’” Christie v. Iopa, 176 F.3d 1231, 1235 (9th Cir. 1999). All three

situations hinge upon a finding that an individual with “final policymaking

authority” was involved in the constitutional violations. Id. at 1235–38.

Plaintiffs make arguments about the ways in which Eric Richey (the deputy

prosecutor involved in Kayser’s case and the current elected Whatcom County

Prosecutor) evinced a failure to understand his Brady obligations. But Plaintiffs

have not made any argument that Richey had final policymaking authority over the

County’s Brady policy or the failure to disclose potentially exculpatory material to

4 Kayser. The single constitutional violation that Kayser allegedly suffered therefore

does not establish an unconstitutional policy on the part of the County.

AFFIRMED.