No. 05-17291 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT JOSEPH ROBINSON, Plaintiff/Appellant, vs. CALIFORNIA, PLUMAS COUNTY, GARRETT OLNEY, IRA KAUFMAN, WILLIAM PANGMAN, JEFF CUNAN and GARY MCGOWAN Defendants/Appellees. On Appeal from a Decision of the United States District Court for the Eastern District of California Judge Garland E. Burrell APPELLEES’ RESPONDING BRIEF Terence J. Cassidy, SB#099180 Kristina M. Hall, SB#196794 PORTER, SCOTT, WEIBERG & DELEHANT A Professional Corporation 350 University Avenue, Suite 200 Sacramento, CA 95825 (916) 929-1481 Attorneys for Defendants/Appellees PLUMAS COUNTY, JEFF CUNAN and GARY MCGOWAN i 00406636.WPD TABLE OF CONTENTS I. STATEMENT OF ISSUES PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. JURISDICTIONAL STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 III. STANDARD OF REVIEW. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 IV. STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 A. Factual Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 B. Procedural History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 V. ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 A. The District Court Properly Granted the Motion to Dismiss, Finding that Robinson Failed to State a Claim for the Deprivation of a Federal Right . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 B. The District Court Properly Granted the Motion to Dismiss in Regard to Finding that Cunan and McGowan are Entitled to Absolute Prosecutorial Immunity . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 C. The District Court Correctly Dismissed Robinson’s Claims for Conspiracy . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 D. The District Court Properly Granted the Motion to Dismiss in Regard to Plumas County . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 VI. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 STATEMENT OF RELATED CASES . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 CERTIFICATE OF COMPLIANCE REGARDING BRIEF LENGTH . . 25 ii 00406636.WPD TABLE OF AUTHORITIES Cases Ashelman v. Pope, 793 F.2d 1072, 1078 (9th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . 14, 17, 19 Atkins v. Lanning, 556 F.2d 485, 488 (9th Cir. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Beard v. Udall, 638 F.2d 1264 (9th Cir. 1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Bradley v. Fisher, 80 U.S. 335, 349, n. 350, 20 L.Ed. 646 (1872) . . . . . . . . . . . . . . . . . . . . . . 17 Brewster v. Shasta County, 275 F.3d 803, 810-11 (2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Broam v. Bogan, 320 F.3d 1023, 1028-29 (9th Cir. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Buckley v. Fitzsimmons, 509 U.S. 259, 269, 113 S.Ct. 2606 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . 14 Burns v. Reed, 500 U.S. 478, 476, 111 S.Ct. 1934 (1991) . . . . . . . . . . . . . . . . . . . 14, 15, 16 Caldeira v. County of Kauai, 866 F.2d 1175, 1182 (9th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Ceballos v. Garcetti, 361 F.3d 1168, 1182-1183 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . 21 Cleavinger v. Saner, 474 U.S. 193, 200, 106 S. Ct. 496, 500 (1985) . . . . . . . . . . . . . . . . . . . . . . 17 iii 00406636.WPD Fireman's Fund Ins. Co. v. City of Lodi, 302 F.3d 928, 939 (9th Cir. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Fletcher v. Kalina, 93 F.3d 653, 655 (9th Cir. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984 (1976) . . . . . . . . . . . . . . . . . . . . . 14, 15, 18 Ivey v. Board of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 Kalina v. Fletcher, 522 U.S. 118, 129, 118 S. Ct. 502 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 626 (9th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 McMillian v. Monroe County, Alabama, 520 U.S. 781, 117 S.Ct. 1734 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Marlowe v. Coakley, 404 F.2d 70, 70 (9th Cir. 1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Meehan v. County of Los Angeles, 856 F.2d 102, 106-07 (9th Cir. 1988) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 No. 84 Employer-Teamster Joint Council Pension Trust Fund v. Am. W. Holding Corp., 320 F.3d 920, 931 (9th Cir.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292 (1986) . . . . . . . . . . . . . . . . . . . . . . . . . 21 iv 00406636.WPD People v. Robinson, 2003 Cal.App.Unpub. LEXIS 2622, *3-5 (2003) . . . . . . . . . . . . . . . . . . . . 11 Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213 (1967) . . . . . . . . . . . . . . . . . . . . . . . . . . . 16, 17 Roe v. City and County of San Francisco, 109 F.3d 578, 583 (9th Cir. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 Scott v. Stans field, L. R. 3 Ex. 220, 223 (1868) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17 Thinket Ink Infor. Res., Inc. v. Sun Microsystems, Inc., 368 F.3d 1053, 1061 (9th Cir. 2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 Thompson v. City of Los Angeles, 885 F.2d 1439, 1443 (9th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20 Statutes 28 U.S.C. §1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 28 U.S.C. §1331 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 28 U.S.C. §1343 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 42 U.S.C. §1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 42 U.S.C. §1985 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 6, 7, 17, 19 Federal Rules of Civil Procedure 8(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 Federal Rules of Civil Procedure 12(b)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 Federal Rules of Civil Procedure 54(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 1 00406636.WPD I. STATEMENT OF ISSUES PRESENTED 1. Whether the District Court erred in granting Defendants/Appellees’ Motion to Dismiss on the grounds that Plaintiff/Appellant Joseph Robinson failed to state a deprivation of a federal right by the deputy district attorneys who prosecuted him, where the trial court in which the prosecution occurred incorrectly denied Robinson the benefit of counsel. 2. Whether the District Court erred in granting a motion to dismiss all claims against the district attorney Defendants/Appellees based on prosecutorial immunity, where both Defendants were district attorneys assigned to the criminal prosecution of Robinson and where all acts of which Robinson complains occurred in a courtroom while these Defendants acted in their role as advocates for the People of the State of California. 3. Whether the District Court erred in finding that Robinson failed to state a claim for conspiracy as between the deputy district attorneys prosecuting him and the judges presiding over that prosecution. 4. Whether the District Court erred in granting a motion to dismiss all claims against Defendant/Appellee Plumas County based on Robinson’s failure to assert any cognizable claim against the municipal entity arising out of the actions of 2 00406636.WPD the deputy district attorneys. II. JURISDICTIONAL STATEMENT In the underlying action, Joseph Robinson is proceeding with a civil rights action pursuant to 42 U.S.C. §1983 and 42 U.S.C. §1985. Subject-matter jurisdiction in the Federal District Court is based on 28 U.S.C. § 1331 and 28 U.S.C. § 1343. The judgment appealed from in this matter is final and appealable pursuant to Federal Rule of Civil Procedure 54(a). This Court’s jurisdiction is based upon 28 U.S.C. §1291. III. STANDARD OF REVIEW Appellate courts review the grant of a motion to dismiss de novo. Fireman’s Fund Ins. Co. v. City of Lodi, 302 F.3d 928, 939 (9th Cir. 2002). Dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6) is appropriate where it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim that would entitle him or her to relief. No. 84 Employer-Teamster Joint Council Pension Trust Fund v. Am. W. Holding Corp., 320 F.3d 920, 931 (9th Cir.), cert. denied, 540 U.S. 966, 124 S.Ct. 433 (2003). The district court’s dismissal of a complaint without leave to amend is proper where it is clear that the complaint could not be saved by any 3 00406636.WPD amendment. Thinket Ink Infor. Res., Inc. v. Sun Microsystems, Inc., 368 F.3d 1053, 1061 (9th Cir. 2004). IV. STATEMENT OF THE CASE A. Factual Introduction This appeal involves the claims of Joseph Robinson, appearing pro se, regarding his conviction by a jury and subsequent imprisonment for, inter alia, possession of and intent to distribute marijuana. Robinson appealed his criminal conviction. In March 2003, the Third District Court of Appeals of California concluded that Plaintiff had been denied his right to counsel due to the trial judge’s decision to admit incriminating testimony Robinson gave during his preliminary hearing when he was unrepresented by counsel and the conviction was reversed. See ER 1-17. The Plumas County District Attorney’s office did not refile the charges against Robinson. Over the course of several Complaints filed in the United States District Court for the Eastern District of California, discussed more fully below, Robinson asserted various claims against Defendants in conjunction with his arrest, prosecution, conviction and imprisonment. Appellant erroneously labeled this document as his Second Amended 1 Complaint. SER 25-001. 4 00406636.WPD B. Procedural History Robinson filed his original complaint on September 10, 2004, containing 593 paragraphs (or “allegations,” as Robinson refers to them) and fifteen separate claims. SER 4-001 to 4-030. On November 12, 2004, Appellees filed their motion to dismiss the Complaint. On November 22, 2004, Robinson filed his First Amended Complaint. SER 25-001 to 25-031. Because the First Amended Complaint was 1 identical to the original Complaint, the District Court exercised its discretion and applied Appellees’ motion to dismiss to the amended pleading. See ER 28-30. In the hearing held on the motion on December 17, 2004, the District Court specifically advised Robinson of myriad deficiencies in his Complaint. See SER 32- 001 to 32-025. Among these deficiencies were that the Amended Complaint, with its 593 paragraphs, failed to comply with the clear and concise pleading requirement of Federal Rule of Civil Procedure 8; that district attorneys enjoy absolute immunity from suit when prosecuting criminal actions; that there is no cognizable legal pleading known as a “Motion for Liability”; and that Plaintiff’s Complaint, as pled, failed to state a claim for civil rights violation against Plumas County. Id. 5 00406636.WPD On December 23, 2004, without leave of court, Plaintiff filed his Second Amended Complaint and Demand for Jury Trial. The District Court ordered this Complaint to be stricken from the record on January 20, 2005. SER 50-001 to 50-004. On June 30, 2005, the District Court granted Defendants’ Motion to Dismiss. ER 33-34. In its Order, the District Court specifically stated, inter alia, the amended complaint failed to allege how the conduct of which Plaintiff complained resulted in any deprivation of a right, privilege or immunity secured by the Constitution or federal law by a person acting under color of state law. See ER 31 (lines 5-8). The District Court also found that Plaintiff’s amended complaint failed to sufficiently allege any claim of municipal liability under Monell against the County of Plumas. ER 32-33 (Order, 6:20-7:8). Further, the district court found that “the amended complaint does not contain a short plain statement as required by Fed. R. Civ. P. 8(a)(2).” ER 30 (lines 5-7). Accordingly, the court dismissed the First Amended Complaint without prejudice, but cautioned that if Robinson filed a Second Amended Complaint, it “must include clear and concise factual allegations describing the events which underlie plaintiff’s claims. ... Plaintiff is forewarned that the failure to file a second amended complaint which complies with this order will result in a recommendation that this action be dismissed.” ER 32-33. In each of these claims, Plaintiff also again included at least one of the 2 judges before whom he appeared during the criminal proceedings and, in some instances, the State of California. The District Court refused to issue summons for any of these Defendants, determining that the judges were entitled to absolute judicial immunity and that §1983 and §1985 claims could not be asserted against State of California pursuant to the Eleventh Amendment. 6 00406636.WPD Robinson ultimately filed a Second Amended Complaint on July 25, 2005, containing 611 paragraphs. ER 35-64. Therein, Robinson specifically asserted the following claims under 42 U.S.C. §1983 and § 1985:2 1. “Conspiracy to Wrongfully Convict and Imprison Plaintiff”, asserted against all Defendants (ER 37-38); 2. “Wrongful Conviction and Imprisonment” asserted against all Defendants (ER 38); 3. “Conspiracy to Violate Plaintiff’s Right to be Free From Unreasonable Search and Seizure” asserted against Defendants Hagwood, Kaufman and Cunan (ER 39); 4. “Violation of Plaintiff’s Right to be Secure Against Unreasonable Search and Seizure” asserted against Defendants Hagwood, Kaufman and Cunan (ER 39); 5. “Conspiracy to Violate Plaintiff’s Right to Assistance of Counsel” asserted Defendants Kaufman, Pangman, Olney, Reichle, Cunan, McGowan and Prouty (ER 40); and 6. “Violation of Plaintiff’s Right to the Assistance of Counsel” (ER 40). Defendants filed a motion to dismiss the Second Amended Complaint on August 1, 2005. SER 64-001 to 64-002. Defendants Reichle, Cunan and McGowan 7 00406636.WPD moved for dismissal on the grounds they were district attorneys involved in the criminal prosecution and are entitled to absolute prosecutorial immunity. SER 64- 001; 65-015to 65-017. Further, Reichle, as the District Attorney of Plumas County, is a policymaker for the State of California and thus is immune from §1983 and §1985 liability pursuant to the Eleventh Amendment to the United States Constitution. SER 64-002; 65-023 to 65-026. Because Reichle was a policymaker for the State of California, he did not act on behalf of Plumas County and, therefore, Plumas County cannot be liable for any of Reichle’s alleged actions. SER 64-002; 65-030 to 65-033. Defendants also moved for summary judgment in regard to the claims asserted against then-Defendant Greg Hagwood. SER 64-001; 65-017 to 65- 021. In his Opposition to the Motions, Robinson voluntarily dismissed Reichle and Hagwood. SER 70-001. Robinson then filed numerous unauthorized “Addenda” to his Opposition. See SER Nos. 74, 75, 77. Appellees timely filed their Reply to all of Robinson’s opposing papers. SER 78-001 to 78-019 On October 21, 2005, United Stated Magistrate Judge Dale A. Drozd issued Findings and Recommendations in regard to Defendants’ Motion to Dismiss. ER 68- 76. Specifically, Magistrate Judge Drozd found that, despite many opportunities to cure the defects in his Complaint, Robinson had failed to plead a cognizable claim under § 1983 because none of the facts suggested a violation of Robinson’s 8 00406636.WPD constitutional rights. ER 72-73. In addition, Magistrate Judge Drozd found that Defendants Cunan and McGowan were entitled to absolute prosecutorial immunity because all of their actions occurred while each acted in his role as a prosecutor. ER 73. Magistrate Judge Drozd also found no facts implicating a conspiracy among Defendants. ER 74-75. Finally, no claim could be asserted against Plumas County because Robinson failed to plead any facts regarding a custom, policy or practice of violation of rights and, further, that any custom, policy or practice would have been established by District Attorney Reichle, who is a policymaker for the State rather than the County. ER 73-74. Magistrate Judge Drozd recommended that Robinson’s case be dismissed without further leave to amend. ER 75. The District Court adopted these findings and recommendations and ordered Robinson’s case dismissed without leave to amend. ER 79-81. V. ARGUMENT A. The District Court Properly Granted the Motion to Dismiss, Finding that Robinson Failed to State a Claim for the Deprivation of a Federal Right In his Second Amended Complaint, Robinson alleges that he was deprived of his constitutional rights in that he was wrongfully convicted and imprisoned, and that his right to assistance of counsel was violated. The District Court concluded that, 9 00406636.WPD despite the multiple amendments to his Complaint, Robinson failed to state a cognizable claim under § 1983. ER 72. Specifically, the District Court concluded that there was no nexus between the alleged conduct of which Plaintiff complained and any existence of a deprivation by Defendants of a right, privilege or immunity secured by federal law. ER 72. Section 1983 provides, in pertinent part: Every person who, under color of any statute of any state . . ., subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured[.] A person “subjects” another to the deprivation of a constitutional right, within the meaning of Section 1983, if he does an affirmative act or participates in another’s affirmative acts. Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Robinson’s criminal conviction was overturned due to a procedural error committed by the court. That error – deprivation of counsel at a preliminary hearing – was in no way a decision made by Cunan or McGowan, who were assigned to prosecute Robinson. The facts of the underlying criminal case, as enumerated in the opinion of the California Third District Appellate Court, clearly demonstrate that any purported violation of Robinson’s rights that resulted in his conviction ultimately being 10 00406636.WPD overturned was not the result of conduct of Cunan and/or McGowan. Proceeding with the preliminary hearing without appointing Plaintiff counsel was the decision of the court. The state appellate opinion states that the purported error at issue in this case was due to a judicial decision to proceed with the preliminary hearing without Plaintiff being represented by counsel. For example, that court specifically concluded as follows: On November 22, defendant requested Judge Olney to appoint counsel to “assist” him, although he desired to retain full control over his case. Judge Olney announced he would first determine whether defendant was eligible for court-appointed counsel before he determined whether he was entitled to “standby counsel.” (See ER 3) oOo Judge Olney questioned defendant about his finances in the presence of the prosecutor. . . . The court opined that defendant could go to a bank, get a second mortgage, and pay for an attorney. . . . The court found defendant did not qualify for court-appointed counsel. (See ER 3) oOo On November 30, defendant . . . objected to the court's refusal to appoint counsel to assist him. (See ER 4) 11 00406636.WPD People v. Robinson, 2003 Cal.App.Unpub. LEXIS 2622, *3-5 (2003) (emphasis added). Robinson tacitly admitted in the direct criminal appellate proceedings that it was the court, not the prosecutors that refused to appoint counsel to assist him. These admissions were noted by the California Third District Court of Appeals: Before trial, defendant [Robinson] filed a motion to exclude his preliminary hearing testimony from trial because he had requested appointed counsel at the preliminary hearing, was erroneously found not to qualify for appointed counsel, and had not waived the assistance of counsel. Defendant argued that both Judge Olney (on November 22) and Judge Pangman (on December 7) failed to permit defendant to provide confidential financial data, and incorrectly ruled that defendant must qualify for welfare in order to receive court-appointed counsel. Id. at *9 (emphasis added). (See ER 7) oOo Defendant also argued at his motion to exclude that his lack of counsel at the preliminary hearing was a result of the trial court's and magistrate's use of an improper standard of indigency and failure to conduct proceedings in accord with statutory mandates. Id. at *17 (emphasis added). (See ER 13) 12 00406636.WPD The holding of the state appellate court in Robinson’s criminal appeal further supports the conclusion that Cunan and McGowan did not make the decision to deny Robinson counsel during the preliminary trial court proceedings. The state appellate court commented on the facts and arguments of that appeal, as follows: Judge Olney denied defendant's motion to exclude the testimony, finding that Judge Kaufman denied defendant's request for counsel because defendant wanted to represent himself. Judge Olney did not refer to his own ruling of November 22, quoted by defendant, which was based on defendant's financial disqualification. Id. (emphasis added). (See ER 7) oOo On November 22, the trial judge conducted a lengthy hearing on defendant's request for counsel. Id. at *14 (emphasis added). (See ER 11) oOo At the preliminary hearing, the magistrate ruled that it was defendant’s financial status, not his perception of counsel’s role, that disqualified him for court-appointed counsel. Id. at *15 (emphasis added). (See ER 12) oOo [T]he trial court's November 22 determination that defendant’s financial 13 00406636.WPD status had to be such that he, in effect, qualified for welfare in order to qualify for appointed counsel, although not recalled by the trial court on May 13, is without support in California law. ... [T]rial courts have discretion to determine whether there are available ready funds to retain counsel[.] Id. at *18-19 (emphasis added). (See ER 14-15) The state appellate court never assigned any error regarding the provision of counsel to the district attorneys or to Plumas County. Clearly, any decision regarding the provision or presence of counsel on Plaintiff’s behalf was a decision by the court, not the district attorneys appearing before the court in the proceeding. Appellees respectfully submit that Plaintiff has failed to present to this Court and to the District Court any facts or argument to warrant a contrary conclusion. Thus, Appellant has failed to state a claim against the deputy district attorney Appellees for violation of a constitutional right. Accordingly, Appellees submit that they are entitled to judgment as a matter of law and request that this Court affirm the dismissal of this case by the District Court. B. The District Court Properly Granted the Motion to Dismiss in Regard to Finding that Cunan and McGowan are Entitled to Absolute Prosecutorial Immunity Absolute prosecutorial immunity protects a prosecutor from civil prosecution and related monetary liability for injuries that arise out of the prosecutor’s execution 14 00406636.WPD of duties that are “intimately associated with the judicial phase of the criminal process.” Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984 (1976). It is wellestablished that prosecutors are “absolutely immune from liability under Section 1983 for . . . “[any] conduct that is intimately associated with the judicial phase of the criminal process.’” Burns v. Reed, 500 U.S. 478, 476, 111 S.Ct. 1934 (1991)(internal citations omitted) (emphasis added)(quoting Imbler, 424 U.S. at 431, 96 S.Ct. 984 (1976)). Accordingly, a prosecutor enjoys absolute immunity in prosecuting a criminal suspect and in proceeding with that prosecution through the verdict, regardless of the activity that occurs within the parameters of those proceedings. See Burns, 500 U.S. at 486; Fletcher v. Kalina, 93 F.3d 653, 655 (9th Cir. 1996). This Court has held that without facts or evidence that a prosecutor’s activities were performed outside of his or her role as a prosecutor, a plaintiff cannot overcome application of absolute prosecutorial immunity. Ashelman v. Pope, 793 F.2d 1072, 1078 (9th Cir. 1986) (en banc). Absolute immunity applies to a prosecutor’s “special functions” i.e., those functions closely associated with the prosecutor’s role as an advocate for the State. Ashelman, 793 F.2d at 1078. Determination of which functions are prosecutorial and thus immune from prosecution focuses on the nature of the function performed. Buckley v. Fitzsimmons, 509 U.S. 259, 269, 113 S.Ct. 2606 (1993). The issue is not 15 00406636.WPD the harm that the conduct may have caused, but the nature of the conduct for which immunity is claimed. Id., 509 U.S. at 271. A prosecutor is absolutely immune for initiating a prosecution and presenting the State’s case. Id. In addition, a prosecutor is absolutely immune when deciding whether or not to prosecute (Roe v. City and County of San Francisco, 109 F.3d 578, 583 (9th Cir. 1997)); preparing and filing an information and a motion for an arrest warrant (Kalina v. Fletcher, 522 U.S. 118, 129, 118 S. Ct. 502 (1997)); preparing for trial (Broam v. Bogan, 320 F.3d 1023, 1028-29 (9th Cir. 2003)); and appearing in court for oral arguments for motions or for trial (Burns v. Reed, supra, 500 U.S. at 492). So long as the prosecutor is acting as an advocate for the State, his or her actions are protected, even if those actions are malicious or dishonest. Imbler, 424 U.S. at 428. In fact, a prosecutor is entitled to absolute immunity even where his or her conduct violates a criminal defendant’s due process rights. See Marlowe v. Coakley, 404 F.2d 70, 70 (9 Cir. 1968); Atkins v. th Lanning, 556 F.2d 485, 488 (9th Cir. 1977). Here, Robinson contends that Cunan and McGowan remained in the courtroom and argued before a judge against the appointment of counsel for him during financial solvency hearings in his criminal prosecution. SER 63-015 to 63-020 (Second Amended Complaint), 81-008 to 81-014 (Transcript of October 14, 2005 Hearing on Motion to Dismiss). Thus, Appellant admits that any actions of the district attorney 16 00406636.WPD Defendants occurred in a judicial phase of the criminal case against him. Pursuant to Burns, supra, a prosecutor need only show that the activity in question occurred within the parameters of a judicial proceeding to be entitled to absolute immunity. Every alleged act of which Appellant complains against Cunan and McGowan is related to Appellant’s criminal prosecution and, notably, every alleged act complained of occurred inside a courtroom during various aspects of the criminal prosecution. Whereas the claims against Cunan and McGowan plainly arise out acts which occurred during a criminal prosecution in which they represented the People of California in a position adversarial to Robinson, they at all times acted as prosecutors. Whether Cunan or McGowan should have been in the courtroom during the solvency hearing and made arguments therein simply is not relevant: Cunan and McGowan could not have advocated any position at all to the trial court had they not been acting in their roles as prosecutors. The legal precedent on which Appellant relies fails to support his position. First, Appellant relies on the dissenting opinion in Pierson v. Ray, 386 U.S. 547, 87 S.Ct. 1213 (1967), which is not binding authority on this Court. In addition, the legal principles established in Pierson regarding absolute judicial immunity also are applicable to absolute prosecutorial immunity. The majority in Pierson held that absolute immunity was a necessary and important element in the criminal justice 17 00406636.WPD system because those governmental participants in the justice process “should be at liberty to exercise their functions with independence and without fear of consequences.” Pierson, 386 U.S. at 554 (citing Scott v. Stansfield, L. R. 3 Ex. 220, 223 (1868); Bradley v. Fisher, 80 U.S. 335, 349, n. 350, 20 L.Ed. 646 (1872)). The basis for establishing absolute judicial immunity in Pierson applies equally to a prosecutor when he is acting in his prosecutorial role, in that any alleged errors may be corrected on appeal, but he should not have to fear that unsatisfied litigants may hound him with litigation charging malice or corruption. Imposing such a burden . . . would contribute not to principled and fearless decision-making but to intimidation. Pierson, 386 U.S at 554. Appellant’s reliance on Beard v. Udall, 638 F.2d 1264 (9th Cir. 1981), also is misplaced. This Court overruled Beard in Ashelman v. Pope, supra. Ashelman, 793 F.2d at 1077-78. This Court has made clear that immunity “from civil liability should not be ‘affected by the motives with which their . . . acts are performed’ . . . , intent should play no role in the immunity analysis.” Id. at 1078 (quoting Cleavinger v. Saxner, 474 U.S. 193, 200, 106 S. Ct. 496, 500 (1985)). Appellant cannot set forth any facts that would establish liability in this matter. In effect, Robinson asks this Court to create an exception to the doctrine of absolute 18 00406636.WPD prosecutorial immunity for him and him alone. See Appellant’s Brief, at pp. 9, 11. Appellant provides no facts to justify denying Cunan and McGowan absolute immunity, nor does he cite any legal authority for his proposition. Appellant asserts that if immunity is applied, he is without “a remedy.” Appellant’s Brief at p. 9. Appellees respectfully submit that these contentions are of no import. Assuming arguendo that Appellant had sustained some violation of his rights (which Appellees deny and which argument the District Court rejected), the United States Supreme Court has made clear that any lack of remedy cannot justify denying a prosecutor the absolute immunity to which he or she is entitled: To be sure, this immunity does leave the genuinely wronged defendant without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty, but the alternative of qualifying a prosecutor's immunity would disserve the broader public interest. Imbler, supra, 424 U.S. at 427. Based on the foregoing, Appellees respectfully request that this Court affirm the ruling of District Court in granting Cunan and McGowan absolute prosecutorial immunity. 19 00406636.WPD C. The District Court Correctly Dismissed Robinson’s Claims for Conspiracy Appellant makes only cursory reference to his claims for conspiracy. See Appellant’s Brief at pp. 10, 11, 12. The District Court determined that, despite allowing Robinson to repeatedly amend his Complaint and despite the multiple addenda to his Opposition to Defendants’ Motion to Dismiss, Robinson continually failed to state any facts upon which a conspiracy claim could be based. Appellant has presented no legal theory or argument, nor any facts, to the District Court or to this Court to support a claim for conspiracy. Mere conclusory allegations of a conspiracy, without more, are insufficient to withstand a motion to dismiss or a motion for summary judgment. See Ivey v. Board of Regents of the Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982); see also Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 626 (9th Cir. 1988). Moreover, as noted by the District Court, and as discussed above, Robinson has failed to state a claim that Appellees violated his constitutional under § 1983, which is a prerequisite to suit under § 1985. ER 74; see Caldeira v. County of Kauai, 866 F.2d 1175, 1182 (9th Cir. 1989) (“the absence of a section 1983 deprivation of rights precludes a section 1985 conspiracy claim predicated on the same allegations”). Finally, assuming a conspiracy actually existed to prosecute Plaintiff and deny him counsel, Defendants Cunan and McGowan are protected by absolute prosecutorial immunity for this claim, as well. Ashelman, 20 00406636.WPD supra, 793 F.2d at 1077-78 (“allegations that a conspiracy produced a certain decision should no more pierce the actor's immunity than allegations of bad faith, personal interest or outright malevolence.”). Thus, the District Court correctly dismissed Appellant’s conspiracy claims against the deputy district attorney Appellees. D. The District Court Properly Granted the Motion to Dismiss in Regard to Plumas County Robinson makes only fleeting reference to Plumas County in his opening brief (see Appellant’s Brief at 10, No. 7; 11, ¶ 5). Robinson’s assertion of §1983 liability against Plumas County is based upon the alleged actions of deputy district attorneys Cunan and McGowan. However, established legal precedent demonstrates that this claim also must fail. Under federal law, only “person[s]” acting under color of law are liable for civil rights violations under § 1983. 42 U.S.C. § 1983. A state or state agent is not a “person” who may be sued under §1983; individuals and agencies that are considered “arms of the state” are not “persons” within the meaning of §1983. Thompson v. City of Los Angeles, 885 F.2d 1439, 1443 (9th Cir. 1989). There is no respondeat superior liability under §1983. See Meehan v. County of Los Angeles, 856 F.2d 102, 106-07 (9th Cir. 1988). Thus, § 1983 mandates that local government 21 00406636.WPD entities may only be held liable for constitutional injuries that are inflicted pursuant to municipal policy, practice or custom. Monell, supra, 436 U.S. at 654; Pembaur v. City of Cincinnati, 475 U.S. 469, 480, 106 S.Ct. 1292 (1986). The policies of a local governmental entity may be made by its lawmakers or those “whose edicts or acts may fairly be said to represent official policy.” Monell, 436 U.S. at 694. This Court has specifically held that a district attorney is “a state official when he acts as a public prosecutor. . . . In the prosecution of criminal cases he acts by the authority and in the name of the people of the state.” Ceballos v. Garcetti, 361 F.3d 1168, 1182-1183 (9th Cir. 2004); see Brewster v. Shasta County, 275 F.3d 803, 810-11 (2001). Thus, any policy the district attorney establishes regarding prosecution of criminal defendants, training subordinates in prosecution and procedure, and so forth is a policy made on behalf of the State of California, not the local county in which that district attorney works. See Weiner, 210 F.3d at 1028; McMillian v. Monroe County, Alabama, 520 U.S. 781, 117 S.Ct. 1734 (1997). Here, Plaintiff vaguely asserts that Plumas County, through the actions of its deputy district attorneys, had some sort of policy or practice to deny criminal defendants their constitutional right to counsel. Any policies or practices in this regard necessarily would have been promulgated by District Attorney Reichle, whom Plaintiff voluntarily dismissed. However, as the foregoing discussion makes clear, 22 00406636.WPD Reichle does not set policy for Plumas County, as any policymaking authority which Reichle has as District Attorney is exercised on behalf of the State of California. Thus, because Reichle is not the formal policymaker as to Plumas County, he does not represent Plumas County in any individualized decisions he may make regarding training or policy in criminal prosecutions. Accordingly, Plumas County cannot be liable for any of his alleged conduct or decisions that arguably may have given rise to the facts now at issue. Appellant therefore cannot state valid federal claims upon which relief may be granted against Plumas County. Thus, the District Court properly granted the Motion to Dismiss without leave to amend, and Appellees request that this Court affirm that ruling. 23 00406636.WPD VI. CONCLUSION Based on the foregoing, Appellees Plumas County, Jeff Cunan and Gary McGowan respectfully request that this Court affirm the District Court’s dismissal of this case without leave to amend. Dated: February 16, 2006 Respectfully submitted, _______________________________ Terence J. Cassidy, SB#099180 Kristina M. Hall, SB#196794 PORTER, SCOTT, WEIBERG & DELEHANT A Professional Corporation 350 University Avenue, Suite 200 Sacramento, CA 95825 (916) 929-1481 Attorneys for Defendants/Appellees PLUMAS COUNTY, JEFF CUNAN and GARY McGOWAN 24 00406636.WPD STATEMENT OF RELATED CASES Defendants/Appellees PLUMAS COUNTY, JEFF CUNAN, and GARY McGOWAN aware of the following cases related to the instant appeal: 1. People v. Robinson, 2003 Cal.App.Unpub. LEXIS 2622 (2003); and, 2. United States v. Real Property Located at 5300 Lights Creek Lane, 2004 U.S. App. LEXIS 23805 (2004) Dated: February 16, 2006 _______________________________ Terence J. Cassidy, SB#099180 Kristina M. Hall, SB#196794 PORTER, SCOTT, WEIBERG & DELEHANT A Professional Corporation 350 University Avenue, Suite 200 Sacramento, CA 95825 (916) 929-1481 Attorneys for Defendants/Appellants PLUMAS COUNTY, JEFF CUNAN and GARY McGOWAN 25 00406636.WPD CERTIFICATE OF COMPLIANCE REGARDING BRIEF LENGTH I certify that: Pursuant to Fed. R. App. P. 32(a)(7)(C), Ninth Circuit Rule 32-1, the attached Brief is: Proportionately spaced in Times New Roman type style in a font no smaller than 14 points and contains 4,663 words. Dated: February 16, 2006 _______________________________ Terence J. Cassidy, SB#099180 Kristina M. Hall, SB#196794 PORTER, SCOTT, WEIBERG & DELEHANT A Professional Corporation 350 University Avenue, Suite 200 Sacramento, CA 95825 (916) 929-1481 Attorneys for Defendants/Appellees PLUMAS COUNTY, JEFF CUNAN and GARY McGOWAN 26 00406636.WPD ROBINSON V. COUNTY OF PLUMAS, ET AL. United States Court of Appeals, Ninth Circuit Case No. 05-17291 USDC EDCA No. Civ-S-04-1888 GEB DAD PS DECLARATION OF SERVICE I am a citizen of the United States and employed in Sacramento County, California; I am over the age of 18 years and not a party to the within action; my business address is 350 University Avenue, Suite 200, Sacramento, California 95825. On the date below I served the attached APPELLEES’ RESPONDING BRIEF addressed as follows: XX BY MAIL. I caused such envelope with postage thereon fully prepaid to be placed in the United States mail at Sacramento, California, to: BY OVERNIGHT DELIVERY. I caused such documents to be delivered by overnight delivery via UPS Next Day Air to the office of the person(s) listed below: Joseph Robinson (2 Copies) 10608 B Bethel Road Frederick, MD 21702 Plaintiff, in Pro Se Clerk of the Court (1 Copy) United States District Court 501 I Street, Room 4200 Sacramento, CA 95814 Clerk, United States Court of Appeals (Original + 15 Copies of Brief) P.O. Box 193939 San Francisco, CA 94119-3939 I declare under penalty of perjury that the foregoing is true and correct and was executed on February 16, 2006 in Sacramento, California. ___________________________________ Susie Schiele