# Collins v. County of Alameda

> District Court, N.D. California · January 26, 2021

URL: https://www.frixlaw.com/law-library/cases/10066547

## Case

- **Court:** District Court, N.D. California
- **Decided:** January 26, 2021
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10066547

## How later opinions describe it (automated extraction)

- holding that § 821.6 provides 4 immunity for malicious prosecution claims only based on a California Supreme Court decision 5 Sullivan, in spite of post-Sullivan state appellate court decisions holding otherwise
- stating that “[t]he 24 actions of a prosecutor are not absolutely immune merely because they are performed by a 25 prosecutor”

## Opinion text

1
2
3
4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6
7 KEVIN COLLINS, Case No. 20-cv-05477-EMC

8 Plaintiff,
ORDER GRANTING DEFENDANTS’
9 v. MOTION TO DISMISS FIRST
AMENDED COMPLAINT
10 COUNTY OF ALAMEDA, et al.,
Docket No. 12
11 Defendants.

12
13
14 Plaintiff Kevin Collins was arrested and imprisoned for the shooting of a prostitute,
15 Radajsha Briggs, on December 7, 2017. Almost two years later, Mr. Collins was released and the
16 charges against him dismissed. Mr. Collins thereafter filed suit, asserting a violation of his rights
17 under both federal and state law, including but not limited to 42 U.S.C. § 1983. Mr. Collins has
18 sued Alameda County, the County DA (Nancy O’Malley), and a DDA (Ashley Carvolth). He has
19 also sued the City of Oakland, the Chief of Police (Anne Kirkpatrick), and various individual
20 police officers. Currently pending before the Court is a motion to dismiss the operative first
21 amended complaint (“FAC”) filed by Alameda County, Ms. O’Malley, and Ms. Carvolth
22 (collectively, the “County Defendants”).
23 I. FACTUAL & PROCEDURAL BACKGROUND
24 The FAC is a lengthy document, consisting of 143 pages and 351 paragraphs. The gist of
25 the FAC, however, is that there was a conspiracy among Defendants to arrest, search, prosecute,
26 and imprison Mr. Collins. See FAC ¶ 1. Mr. Collins alleges that Defendants, inter alia:
27 • ignored the fact that the victim, Ms. Briggs, dramatically changed her description
1 • failed to investigate both with respect to witnesses and other possible suspects;
2 • suppressed video evidence on Mr. Collins’s cell phone showing he was with his
3 girlfriend a few hours before the incident;
4 • failed to conduct tests on Mr. Collins’s gun to see if it had recently been fired; and
5 • fabricated evidence against Mr. Collins through, e.g., improper photo lineups.
6 Although, as noted above, the FAC is lengthy, specifics on the involvement of Ms.
7 O’Malley and Ms. Carvolth – and therefore, the County – are minimal. There are many
8 conclusory allegations related to Ms. O’Malley in particular. The main nonconclusory allegations
9 against Ms. O’Malley and/or Ms. Carvolth relate to (1) a meeting between the police and the DA’s
10 Office and (2) a series of photo lineups.
11 A. Meeting
12 With respect to the meeting, Mr. Collins alleges as follows. On December 21, 2017
13 (approximately two weeks after the shooting), the police, Ms. O’Malley, and Ms. Carvolth met
14 and reviewed the police reports, the statements by Ms. Briggs, and the police affidavits in support
15 of an arrest warrant and search warrant. See FAC ¶ 85. (Mr. Collins had been arrested on
16 December 20, 2017. See FAC ¶ 191.) By the time of the meeting, Ms. O’Malley and Ms.
17 Carvolth already knew about and had already seen the video evidence on Mr. Collins’s cell phone
18 which showed that he was with his girlfriend a few hours before the shooting. See FAC ¶¶ 86-88.
19 Although the FAC does not expressly state what the purpose of the meeting was, it may
20 reasonably be inferred that the purpose was to decide whether to prosecute Mr. Collins who had
21 been arrested the day before. See, e.g., FAC ¶ 85 (alleging that Ms. Carvolth “knew she was
22 legally and ethically obligated not to prosecute a case which on its face could not be proven
23 beyond a reasonable doubt”); FAC ¶ 90 (alleging that Ms. O’Malley “had a legal and ethical
24 obligation to stop the prosecution of Mr. Collins since the evidence included many inconsistencies
25 as well as evidence pointing to Mr. Collins’ innocence”). At the hearing, Mr. Collins expressly
26 confirmed that this was, in fact, the purpose of the meeting.
27 B. Photo Lineups
1 photo lineups after the shooting.
2 1. First Photo Lineup, December 11, 2017
3 The first photo lineup took place on December 11, 2017, a few days after the shooting.
4 Ms. Briggs was shown six photos. The fourth one was of Mr. Collins: a black-and-white photo
5 obtained from his driver’s license. See FAC ¶¶ 44, 46. Under the section “Viewer comments,”
6 Ms. Briggs wrote “No” under the first five photos (including Mr. Collins) and “Yes” under the
7 sixth photo. See FAC, Ex. 6 (first photo lineup).
8 2. Second Photo Lineup, December 19, 2017
9 The following day, December 12, 2017, the police initiated a traffic stop of Mr. Collins,
10 the purpose of which was to obtain a better and/or color photo of Mr. Collins. See FAC ¶¶ 47-50;
11 see also FAC, Ex. 13 (video of traffic stop); FAC, Ex. 7 (photo taken from the traffic stop).
12 One week later, on December 19, 2017, a second photo lineup took place. This photo
13 lineup used six color photos – edited so that only the heads/faces were shown with no background
14 visible. As with the first photo lineup, Mr. Collins appeared in the fourth photo. This time the
15 photo was of Mr. Collins from the traffic stop. See FAC, Ex. 8 (second photo lineup). Mr.
16 Collins’s photo differed from the other photos in the lineup in that he was looking to the side
17 instead of straightforward (as would be done with a mugshot).
18 • For the second photo, Ms. Briggs’s written comment was: “I beleave [sic] this is
19 the man who shot me. He has featurs [sic] not him or not sure.”
20 • For the fourth photo (Mr. Collins), Ms. Briggs’s written comment was: “I am
21 almost sure this is the person I got in the car with and the same person came on 11
22 Ave[.] and shot me.”
23 • For the fifth photo, Ms. Briggs’s written comment was: “This man has strong
24 featurs [sic] just like the man who shot me almost a lookalike.”
25 • For the sixth photo, Ms. Briggs’s written comment was: “He has eyes and lips like
26 him.”
27 (Ms. Briggs did not have written comments for the other photos.)
1 preliminary hearing about that lineup. He stated as follows: “‘Once I had found enough
2 photographs, I had to – I had presented the photo lineup that I recently developed to the District
3 Attorney’s office, and asked if there were any objections that they felt before I presented that
4 photograph of his lineup. And I was told that the photo lineup was fine.’” FAC ¶¶ 51, 122. On
5 its face, the statement does not identify who from the DA’s Office gave approval to the lineup.
6 3. Third Photo Lineup
7 A third photo lineup was also prepared – and implicitly shown to Ms. Briggs. The third
8 lineup consisted of two photos only. The first photo was the photo of Mr. Collins that was used in
9 the first lineup (i.e., the black-and-white driver’s license photo). The second photo was the sixth
10 photo used in the second lineup (i.e., a color photo of a man under which Ms. Briggs wrote: “He
11 has eyes and lips like him”). See FAC ¶ 56 & Ex. 10 (third photo lineup). The date that Ms.
12 Briggs was shown the third photo lineup is not clear from the FAC. At the hearing, Mr. Collins
13 represented that the date was December 19, 2017.
14 4. Fourth Photo Lineup
15 Finally, a fourth photo lineup was prepared – comparing the two photos of Mr. Collins
16 from the first and second lineups (i.e., the black-and-white driver’s license photo and the color
17 traffic stop photo). See FAC ¶ 57. Here as well the date that Ms. Briggs was shown the fourth
18 lineup is not clear from the FAC. At the hearing, Mr. Collins represented that the date was
19 December 19, 2017.
20 5. Summary
21 As indicated by the above, the DA’s Office is mentioned specifically for the second photo
22 lineup only. It appears that Officer Hight relied on, inter alia, the second photo lineup to support
23 his sworn affidavit in support of a Ramey warrant. See FAC ¶ 58 et seq.
24 C. Causes of Action
25 Based on, inter alia, the above allegations, Mr. Collins has asserted the following causes of
26 action:
27 (1) Conspiracy in violation of 42 U.S.C. § 1985 (against all Defendants). See, e.g.,
1 Defendants to fabricate and falsify evidence, including the “fraudulently
2 acquired” photo of Mr. Collins used for the second photo lineup).
3 (2) Illegal search and seizure in violation of 42 U.S.C. § 1983 (against the
4 individual defendants). See, e.g., FAC ¶ 166 (referring to photo lineups).
5 (3) Fraud in violation of 42 U.S.C. § 1983 (against the individual defendants). See,
6 e.g., FAC ¶ 173 (alleging that photo taken of Mr. Collins at the traffic stop was
7 fraudulently obtained).
8 (4) Invasion of privacy in violation of 42 U.S.C. § 1983 (against the individual
9 defendants). See, e.g., FAC ¶ 181 (referring to photo taken of Mr. Collins at the
10 traffic stop).
11 (5) False arrest in violation of 42 U.S.C. § 1983 (against the individual defendants).
12 (6) False imprisonment in violation of 42 U.S.C. § 1983 (against the individual
13 defendants).
14 (7) Prosecutorial misconduct in violation of 42 U.S.C. § 1983 (against Ms.
15 O’Malley and Ms. Carvolth). See, e.g., FAC ¶ 213 et seq. (referring to
16 investigation, false arrest, and false imprisonment, including but not limited to
17 photo lineups).
18 (8) Malicious prosecution in violation of 42 U.S.C. § 1983 (against the individual
19 defendants). See, e.g., FAC ¶ 223 (alleging that Defendants knew there was
20 insufficient evidence against Mr. Collins).
21 (9) Fabricated evidence in violation of the Fourth and Fourteenth Amendments
22 (against the individual defendants). See, e.g., FAC ¶ 239 (alleging that officers
23 told lies to Mr. Collins during his interrogation).
24 (10) Suppression of exculpatory evidence in violation of 42 U.S.C. § 1983. See,
25 e.g., FAC ¶ 259 (referring to Mr. Collins’s cell phone that contained video he
26 was with his girlfriend several hours before the shooting).
27 (11) Monell liability (against the County and City) based on the acts/omissions of
1 (12) Monell liability (against the County and City) based on a failure to train or
2 supervise.
3 (13) Violation of the Fourteenth Amendment in violation of 42 U.S.C. § 1983
4 (against the individual defendants).
5 (14) Negligent supervision in violation of 42 U.S.C. § 1986 (against the individual
6 defendants).
7 (15) Monell liability (against the County and City) based on pattern, practice, or
8 policy.
9 (16) Monell liability (against the County and City) based on ratification.
10 (17) Conspiracy (against the individual defendants).
11 (18) Violation of the right to privacy as protected by the California Constitution
12 (against the individual defendants).
13 (19) Fraud (against the individual defendants).
14 (20) False arrest (against the individual defendants).
15 (21) False imprisonment (against the individual defendants).
16 (22) Negligent failure to train/supervise and negligent retention in violation of
17 California Government Code § 815.5 (against the individual defendants).
18 (23) Negligent investigation in violation of California Government Code § 815.5
19 (against the individual defendants).
20 (24) Malicious prosecution (against the individual defendants).
21 (25) Intentional infliction of emotional distress (against the individual defendants).
22 (26) Defamation per se (against the individual defendants).
23 (27) Private attorney’s fees pursuant to California Civil Code § 1021.5 (against the
24 individual defendants).
25 (28) Injunctive relief (against the individual defendants).
26 II. DISCUSSION
27 A. Legal Standard
1 statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A
2 complaint that fails to meet this standard may be dismissed pursuant to Federal Rule of Civil
3 Procedure 12(b)(6). See Fed. R. Civ. P. 12(b)(6). To overcome a Rule 12(b)(6) motion to dismiss
4 after the Supreme Court’s decisions in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic
5 Corp. v. Twombly, 550 U.S. 544 (2007), a plaintiff’s “factual allegations [in the complaint] ‘must
6 . . . suggest that the claim has at least a plausible chance of success.’” Levitt v. Yelp! Inc., 765
7 F.3d 1123, 1135 (9th Cir. 2014). The court “accept[s] factual allegations in the complaint as true
8 and construe[s] the pleadings in the light most favorable to the nonmoving party.” Manzarek v. St.
9 Paul Fire & Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir. 2008). But “allegations in a
10 complaint . . . may not simply recite the elements of a cause of action [and] must contain sufficient
11 allegations of underlying facts to give fair notice and to enable the opposing party to defend itself
12 effectively.” Levitt, 765 F.3d at 1135 (internal quotation marks omitted). “A claim has facial
13 plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
14 inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The
15 plausibility standard is not akin to a probability requirement, but it asks for more than a sheer
16 possibility that a defendant has acted unlawfully.” Id. (internal quotation marks omitted).
17 B. Section 1983 Claims
18 As indicated above, the first sixteen causes of action are federal claims, largely predicated
19 on § 1983.
20 1. Conclusory Allegations
21 As a preliminary matter, the County Defendants argue that the federal claims are deficient
22 because the bulk of the factual allegations specifically supporting the legal claims are conclusory.
23 The County Defendants are correct. Notably, in his opposition brief, Mr. Collins focuses on only
24 two specific events – i.e., the approval of the photo lineup and the reviewing of police reports. See
25 Opp’n at 10.
26 2. Federal Claims Against the Individual Prosecutors
27 a. Absolute Prosecutorial Immunity
1 Carvolth are protected by absolute prosecutorial immunity. The Court agrees in part.
2 i. Decision to Prosecute
3 With respect to the decision to prosecute (a decision that appears to have been made at or
4 about the time of the December 17, 2017, meeting referenced above), Ms. O’Malley and Ms.
5 Carvolth do have absolute prosecutorial immunity. Both Supreme Court and Ninth Circuit case
6 law clearly support this holding. In Hartman v. Moore, 547 U.S. 250 (2006), the Court stated that
7 “[a] Bivens (or § 1983) action for retaliatory prosecution will not be brought against the
8 prosecutor, who is absolutely immune from liability for the decision to prosecute.” Id. at 261-62.
9 In Imbler v. Pachtman, 424 U.S. 409 (1976), the Court stated that, “in initiating a prosecution and
10 in presenting the State’s case, the prosecutor is immune from a civil suit for damages under §
11 1983.” Id. at 431. And in Roe v. City & County of San Francisco, 109 F.3d 578 (9th Cir. 1997),
12 the Ninth Circuit underscored that “it is well established that a prosecutor has absolute immunity
13 for the decision to prosecute.” Id. at 583-84 (also holding that absolute immunity applies to a
14 prosecutor’s decision not to prosecute). Thus, to the extent Mr. Collins sues the individual
15 prosecutors for their decision to prosecute Mr. Collins, they are protected by absolute
16 prosecutorial immunity.
17 ii. Approval of the Second Photo Lineup
18 However, Ms. O’Malley and Ms. Carvolth do not have absolute prosecutorial immunity
19 with respect to their approval of the photo lineup. The FAC indicates that the police asked for the
20 prosecutors’ legal advice on whether the photo lineup was acceptable, and that request was made
21 before any arrest was made. (In fact, it appears that the photo lineup was used to support the
22 request for an arrest warrant.) Decisions of the Supreme Court support Mr. Collins’s position that
23 these facts do not support absolute prosecutorial immunity.
24 For example, in Burns v. Reed, 500 U.S. 478 (1991), police officers consulted with a
25 prosecutor, seeking legal advice as to whether they could interview a suspect under hypnosis. The
26 prosecutor told the officers that they could proceed with the hypnosis. The officers then consulted
27 with the prosecutor a second time, asking whether there was probable cause to arrest the suspect
1 probable cause, and therefore the officers arrested the suspect. See id. at 481-82. The Supreme
2 Court held that the prosecutor did not have absolute immunity with respect to the legal advice that
3 had been given.
4 • First, there was no “historical or common-law support for extending absolute
5 immunity to such actions by prosecutors.” Id. at 492.
6 • Second, there was no risk of vexatious litigation against a prosecutor if absolute
7 immunity were not given. “[A] suspect or defendant is not likely to be as aware of
8 a prosecutor’s role in giving advice as a prosecutor’s role in initiating and
9 conducting a prosecution. But even if a prosecutor's role in giving advice to the
10 police does carry with it some risk of burdensome litigation, the concern with
11 litigation in our immunity cases is not merely a generalized concern with
12 interference with an official's duties, but rather is a concern with interference with
13 the conduct closely related to the judicial process. Absolute immunity is designed
14 to free the judicial process from the harassment and intimidation associated with
15 litigation. That concern therefore justifies absolute prosecutorial immunity only for
16 actions that are connected with the prosecutor's role in judicial proceedings, not for
17 every litigation-inducing conduct.” Id. at 494 (emphasis in original).
18 • Finally, a prosecutor’s act of giving legal advice is not necessarily “subjected to the
19 ‘crucible of the judicial process’” – particularly “if a suspect is not eventually
20 prosecuted.” Id. at 496.
21 In Buckley v. Fitzsimmons, 509 U.S. 259 (1993), the Supreme Court held that there was no
22 absolute immunity for prosecutors who had allegedly manufactured false evidence that would link
23 the defendant’s boot with the bootprint the murderer left on the victim’s front door. The defendant
24 asserted that, “[t]o obtain this false evidence, . . . the prosecutors shopped for experts until they
25 found one who would provide the opinion they sought.” Id. at 272. The Supreme Court noted
26 first that

27 [t]here is a difference between the advocate's role in evaluating
corroboration that might give him probable cause to recommend that
1 a suspect be arrested, on the other hand. When a prosecutor
performs the investigative functions normally performed by a
2 detective or police officer, it is "neither appropriate nor justifiable
that, for the same act, immunity should protect the one and not the
3 other."
4 Id. at 273. The Court then stated that the issue was whether the prosecutors

5 were functioning as "advocates" when they were endeavoring to
determine whether the bootprint at the scene of the crime had been
6 made by petitioner's foot. A careful examination of the allegations
concerning the conduct of the prosecutors during the period before
7 they convened a special grand jury to investigate the crime provides
the answer. The prosecutors do not contend that they had probable
8 cause to arrest petitioner or to initiate judicial proceedings during
that period. Their mission at that time was entirely investigative in
9 character. A prosecutor neither is, nor should consider himself to be,
an advocate before he has probable cause to have anyone arrested.
10
It was well after the alleged fabrication of false evidence concerning
11 the bootprint that a special grand jury was empaneled. And when it
finally was convened, its immediate purpose was to conduct a more
12 thorough investigation of the crime – not to return an indictment
against a suspect whom there was already probable cause to arrest.
13 Buckley was not arrested, in fact, until 10 months after the grand
jury had been convened and had finally indicted him. Under these
14 circumstances, the prosecutors' conduct occurred well before they
could properly claim to be acting as advocates.
15
16 Id. at 274-75 (emphasis added); cf. Torres v. Goddard, 793 F.3d 1046, 1053 (9th Cir. 2015)
17 (distinguishing seeking a warrant to obtain evidence to prosecute an indictment (which is
18 protected by absolute immunity) from seeking a warrant to obtain evidence as “‘collateral
19 investigation into new crimes’” (which is not protected by absolute immunity)).
20 Under Burns and Buckley, the critical issue for absolute prosecutorial immunity is whether
21 the prosecutor’s actions were closely connected to her role as an advocate in judicial proceedings;
22 absolute prosecutorial immunity does not obtain simply because a prosecutor uses her legal
23 knowledge or acts in her capacity as an attorney. Cf. Buckley, 509 U.S. at 273 (stating that “[t]he
24 actions of a prosecutor are not absolutely immune merely because they are performed by a
25 prosecutor”). The giving of legal advice outside the context of judicial proceedings is not subject
26 to absolute immunity. Thus, as alleged here, the fact that the individual prosecutors gave legal
27 advice before an arrest was made is insufficient to give rise to absolute prosecutorial immunity.
1 based on Roe, where the Ninth Circuit stated: “a prosecutor’s professional evaluation of the
2 evidence assembled by the police is entitled to absolute immunity.” Roe, 109 F.3d at 584. But
3 this statement from Roe must be taken in context. In support of the statement, the Ninth Circuit
4 cited Buckley, which contains the following passage:

5 A prosecutor's administrative duties and those investigatory
functions that do not relate to an advocate's preparation for the
6 initiation of a prosecution or for judicial proceedings are not entitled
to absolute immunity. We have not retreated, however, from the
7 principle that acts undertaken by a prosecutor in preparing for the
initiation of judicial proceedings or for trial, and which occur in the
8 course of his role as an advocate for the State, are entitled to the
protections of absolute immunity. Those acts must include the
9 professional evaluation of the evidence assembled by the police and
appropriate preparation for its presentation at trial or before a grand
10 jury after a decision to seek an indictment has been made.
11 Buckley, 509 U.S. at 273 (emphasis added). As noted above, here, the prosecutors allegedly
12 approved the photo lineup before any charges were brought against Mr. Collins. They were giving
13 advice relative to the investigation, not acting as advocates in furtherance of a prosecution.
14 b. Qualified Immunity
15 The County Defendants argue that, even if Ms. O’Malley and Ms. Carvolth are not
16 protected by absolute immunity for the approval of the photo lineup, they are still protected by
17 qualified immunity.
18 Here, the County Defendants have a meritorious argument, primarily because the FAC
19 does not make clear what exactly the prosecutors knew – and what facts indicate they had such
20 knowledge – at the time they approved the lineup. At the hearing, Mr. Collins clarified his theory
21 of liability with respect to the photo lineup. To wit:
22 (1) The prosecutors knew at the time of the second photo lineup that there had been
23 a prior photo lineup where Ms. Briggs did not identify Mr. Collins as the
24 perpetrator, and thus should not have approved the second lineup.
25 (2) The prosecutors knew at the time of the second photo lineup that the photo of
26 Mr. Collins in the second photo lineup had been obtained “fraudulently” – i.e.,
27 through a “ruse” traffic stop.
1 improperly suggestive because (a) the photos in the lineup had been
2 “photoshopped” to remove all background so that only the individuals’ heads
3 were shown, (b) Mr. Collins’s photo was placed in the same position (fourth) as
4 the first photo lineup, and (c) Mr. Collins’s photo stood out because it was the
5 only one in which the individual was looking to the side instead of
6 straightforward.1
7 But these theories are not clearly articulated in the FAC. Moreover, even if they had been,
8 Plaintiffs cannot simply claim in conclusory fashion that the prosecutors had the above
9 knowledge. Rather, Plaintiffs must be able to plead a factual basis for that knowledge. The FAC
10 as pled is lacking in this regard. The Court acknowledges that the FAC does refer to a police
11 officer (Officer Hight) making the following statement at the preliminary hearing: “‘Once I had
12 found enough photographs, I had to – I had presented the photo lineup that I recently developed to
13 the District Attorney’s office, and asked if there were any objections that they felt before I
14 presented that photograph of his lineup. And I was told that the photo lineup was fine.’” FAC ¶¶
15 51, 122. But this statement says nothing about what the prosecutors knew at the time they gave
16 their approval, nor does it shed any light as to how the prosecutors had any such knowledge.
17 Moreover, although Mr. Collins conclusorily alleges that Ms. O’Malley, the DA, actually
18 approved the second photo lineup, the FAC contains no specific facts establishing a plausible
19 claim that the DA herself would have been present at or consulted for the December 19 photo
20 lineup; it seems more likely that such a scenario would involve a line-level prosecutor rather than
21 the DA herself.
22 In short, based on the allegations in the FAC as they currently stand, Mr. Collins has
23 alleged in conclusory terms only that Ms. O’Malley, the DA was involved in the approval of the
24 photo lineup; furthermore, even if both Ms. O’Malley and Ms. Carvolth gave approval to the
25 photo lineup, Mr. Collins has merely alleged that the prosecutors gave their approval without
26

27
1 Mr. Collins does not appear to make a claim that the prosecutors did not know about the first
1 knowing anything else (such as the first lineup or the circumstances under which the color photo
2 of Mr. Collins was obtained). Based on these facts, qualified immunity applies because Mr.
3 Collins has failed to show that the prosecutors violated a constitutional right that was clearly
4 established at the time of the conduct.2 See Pearson v. Callahan, 555 U.S. 223, 231-32 (2009).
5 The Court, however, shall give Mr. Collins leave to amend. Mr. Collins’s amended
6 pleading must address the deficiencies identified above, i.e., (1) what is the factual basis for the
7 claim that Ms. O’Malley (and not just Ms. Carvolth) approved the second photo lineup; (2) what
8 did the prosecutors allegedly know at the time of the second photo lineup; and (3) what is the
9 factual basis for the claim that the prosecutors had such knowledge? Although allegations in the
10 amended pleading may be made on information and belief, Mr. Collins must still have a Rule 11
11 good faith basis for making his allegations. The Court also notes that, even though it is
12 demanding more specificity from Mr. Collins, it is not asking Mr. Collins to ignore Rule 8’s
13 directive that a pleading must contain “a short and plain statement of the claim showing that the
14 pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). Even taking into account
15 the scope of the alleged misconduct in this case, the FAC as currently pled is bloated (as noted
16 above, consisting of 143 pages and 351 paragraphs).
17 3. Federal Claims Against the County (Monell Claims)
18 Finally, the County Defendants argue that the federal claims against the County (i.e., the
19 Monell claims) should be dismissed because they have been conclusorily pled. To the extent Mr.
20 Collins bases municipal liability on Ms. O’Malley’s act of approving the photo lineup – Ms.
21 O’Malley being the final policymaker for the County – the Monell claims would theoretically be
22 viable. See Gillette v. Delmore, 979 F.2d 1342, 1349 (9th Cir. 1992) (stating that, “[i]n Pembaur,
23 the [Supreme] Court held that under certain circumstances a municipality may be held liable for a
24 single decision by a municipal policymaker” who “‘possesses final authority to establish
25
2 Although the Court finds in the prosecutors’ favor on qualified immunity, it rejects the County
26
Defendants’ argument that dismissal is warranted based on the Noerr-Pennington doctrine.
Approval of the lineup has nothing to do with any petitioning activity. Indeed, at the time of the
27
lineup, Mr. Collins had not even been arrested. See Manistee Town Ctr. v. City of Glendale, 227
1 municipal policy with respect to the action ordered’”). But, as discussed above, the FAC lacks
2 specific allegations indicating that Ms. O’Malley herself gave approval to the lineup; moreover,
3 the FAC lacks specific allegations as to what Ms. O’Malley knew at the time of the lineup and
4 how she had such knowledge. No plausible claim as to her knowledge is stated. Thus, the Court
5 agrees with the County Defendants that the Monell claims must be dismissed.
6 The Court also notes that, to the extent Mr. Collins asserts municipal liability based on,
7 e.g., a policy or custom (fifteenth cause of action), failure to train or supervise (twelfth cause of
8 action), or ratification (sixteenth cause of action), the allegations in the FAC are too conclusory as
9 well.
10 Consistent with the above, the Court shall give Mr. Collins an opportunity to amend his
11 Monell claims – i.e., to the extent liability is predicated on approval of the photo lineup.3
12 C. State Law Claims
13 In addition to the federal claims, Mr. Collins asserts state law claims at Counts 17-28.
14 1. Statutory Immunity
15 Similar to above, the County Defendants contend they have immunity from the state law
16 claims, albeit immunity based on California statutes. Specifically, the County Defendants assert
17 that the individual prosecutors have immunity based on California Government Code § 820.2 and
18 § 821.6, and the County based on § 815.2. These statutes provide as follows:
19 • Section 820.2: “Except as otherwise provided by statute, a public employee is not
20 liable for an injury resulting from his act or omission where the act or omission was
21 the result of the exercise of the discretion vested in him, whether or not such
22 discretion be abused.” Cal. Gov’t Code § 820.2. As the California Supreme Court
23
3 Mr. Collins has no plausible Monell claim to the extent he seeks to hold the County liable for the
24
decision to prosecute. See Weiner v. San Diego Cty., 210 F.3d 1025, 1031 (9th Cir. 2000)
(“conclud[ing] that a California district attorney is a state officer when deciding whether to
25
prosecute an individual”); Cooley v. City of Walnut Creek, No. 18-cv-00719-YGR, 2018 U.S.
Dist. LEXIS 205358, at *19-21 (N.D. Cal. Dec. 4, 2018) (noting that “a deputy district attorney
26
acts on behalf of the state, and not the county, in initiating and prosecuting criminal cases” and
thus “no Monell claim can be stated against the County”); Pitts v. Cty. of Kern, 17 Cal. 4th 340,
27
362 (1998) (“conclud[ing] that when preparing to prosecute and when prosecuting criminal
1 has explained, “[i]mmunity is reserved for those basic policy decisions [which
2 have] . . . been [expressly] committed to coordinate branches of government, and as
3 to which judicial interference would thus be unseemly”; “there is no basis for
4 immunizing lower level decisions that merely implement a basic policy already
5 formulated.” Barner v. Leeds, 24 Cal. 4th 676, 685 (2000) (emphasis and internal
6 quotation marks omitted).
7 • Section 821.6. “A public employee is not liable for injury caused by his instituting
8 or prosecuting any judicial or administrative proceeding within the scope of his
9 employment, even if he acts maliciously and without probable cause.” Id. § 821.6.
10 • Section 815.2. “Except as otherwise provided by statute, a public entity is not
11 liable for an injury resulting from an act or omission of an employee of the public
12 entity where the employee is immune from liability.” Id. § 815.2(b).
13 As noted above, the FAC as pled identifies only two specific actions by the prosecutors,
14 Ms. O’Malley and Ms. Corvalth – i.e., meeting with the police on December 21, 2017 (i.e., after
15 Mr. Collins had been arrested) and approving the second photo lineup.
16 a. Decision to Prosecute
17 As noted above, the purpose of the meeting on December 21 was to decide whether to
18 prosecute. The Court holds that all state claims based on the decision to prosecute are protected
19 by § 820.2 immunity.
20 Immunity under § 820.2 is “reserved for those basic policy decisions [which have] . . .
21 been [expressly] committed to coordinate branches of government, and as to which judicial
22 interference would thus be unseemly.” Barner, 24 Cal. 4th at 685 (internal quotation marks and
23 emphasis omitted). In contrast, “there is no basis for immunizing lower level decisions that
24 merely implement a basic policy already formulated.” Id. (internal quotation marks omitted).
25 Although only basic policy decisions are immunized, basic policy decisions can still
26 encompass individualized determinations. For example, the California Supreme Court has held
27 that “the decision by individual members of a school board whether to vote to renew a
1 fundamental policy implications,’” and therefore § 820.2 immunity applied. Id.; accord
2 Jacqueline T. v. Alameda County Child Protective Servs., 155 Cal. App. 4th 456, 468 (2007)
3 (holding that defendant social workers’ conclusion that dependency proceedings should not be
4 initiated were “covered by the broad grant of immunity section 821.6 affords . . . as well as the
5 grant of immunity section 820.2 affords to sensitive policy decision that result from a
6 governmental entity’s unique decisionmaking or planning processes”). The California Supreme
7 Court has also held that “[t]he decision to parole [a delinquent child] comprises the resolution of
8 policy considerations, entrusted by statute to a coordinate branch of government, that compels
9 immunity from judicial reexamination”; in contrast, “[o]nce an official reaches the decision to
10 parole to a given [foster] family, . . . the determination as to whether to warn the foster parents of
11 latent dangers facing them presents no such reasons for immunity.” Johnson v. State of Cal., 69
12 Cal. 2d 782, 795 (1968); cf. Barner, 24 Cal. 4th at 688 (holding that, even if the initial decision on
13 whether to provide representation by a public defender “is a sensitive policy decision that requires
14 judicial abstention,” § 820.2 immunity would not extend to the public defender’s actual
15 representation of the criminal defendant).
16 Here, of course, the Court is confronted with a different kind of individualized
17 determination, namely, the decision of a prosecutor on whether to prosecute. Nevertheless, the
18 Court concludes that immunity should be afforded to this determination because, like the above, it
19 is a sensitive policy decision in which interference by the judiciary would be unseemly. The
20 Supreme Court has explained that the considerations underlying federal absolute prosecutorial
21 immunity “include concern that harassment by unfounded litigation would cause a deflection of
22 the prosecutor’s energies from his public duties, and the possibility that he would shade his
23 decisions instead of exercising the independence of judgment required by the public trust.”
24 Imbler, 424 U.S. at 423. The same concerns are equally applicable here. Prosecutors must have
25 room to breathe, i.e., freedom, see id. at 684-85, in making charging decisions without fear.
26 Notably, several district court decisions are in accord. See, e.g., Hudson v. Del Norte Office of the
27 DA, No. C 00-0093 WHA, 2000 U.S. Dist. LEXIS 3984, at *7 (N.D. Cal. Mar. 24, 2000) (stating
1 immunity, that is to allow the free exercise of the prosecutor's discretion and protect public
2 officers from harassment in the performance of their duties”); Bagdasaryan v. City of L.A., No.
3 2:15-cv-01008-JLS (KES), 2018 U.S. Dist. LEXIS 224542, at *100 (C.D. Cal. Oct. 22, 2018)
4 (R&R) (stating that “[s]ection 820.2, which immunizes public employees from liability for
5 discretionary acts, applies where Defendant's employees made the discretionary decision to pursue
6 a criminal complaint against Masis Bagdasaryan”); Gregory v. Fresno Cty., No. 1:18-cv-00524-
7 LJO-SAB, 2018 U.S. Dist. LEXIS 152327, at *131-32 (E.D. Cal. Sep. 6, 2018) (R&R) (stating
8 that “Defendants [county and state prosecutors] are entitled to immunity under section 820.2 for
9 the decision to investigate or prosecute the alleged violations of the Act or the California Penal
10 Code, but the decisions on how the investigation or prosecution proceeded are not discretionary
11 acts within the meaning section 820.2”). Compare Reinhardt v. Santa Clara Cty., No. C05-05143
12 HRL, 2006 U.S. Dist. LEXIS 101985, at *28 (N.D. Cal. Nov. 1, 2006) (declining to apply § 820.2
13 where plaintiff’s allegations were about “the negligent behavior of the individual prosecutors
14 assigned to Bianco's murder” – i.e., to the day-to-day implementation of previously established
15 policies”).
16 Because the individual prosecutors have immunity under § 820.2 for the decision to
17 prosecute,4 the County would also have immunity under § 815.2 – although, as noted above, the
18 more appropriate analysis is that the County cannot even be held liable for the decision to
19 prosecute because, “when preparing to prosecute and when prosecuting criminal violations of state
20 law, a district attorney represents the state and is not a policymaker for the county.” Pitts, 17 Cal.
21 4th at 362.
22 To the extent the County Defendants have raised not only § 820.2 immunity but also §
23

24
4 The Court need not address whether § 820.2 immunity is inapplicable where prosecutors engage
in, e.g., purposeful fabrication of evidence in the course of prosecution. Compare Inman v.
25
Anderson, 294 F. Supp. 3d 907, 918 (N.D. Cal. 2018) (Koh, J.) (stating that, under federal law,
“courts have recognized that after a prosecution has been initiated against a specific defendant,
26
prosecutorial immunity attaches to any alleged fabrication of evidence or presentation of that
fabricated evidence by a prosecutor in support of the state's case against the defendant”); see also
27
Paine v. City of Lompoc, 265 F.3d 975, 982 (9th Cir. 2001) (noting that, under Imbler, absolute
1 821.6 immunity, the Court holds that there is § 821.6 immunity – but its application is limited.
2 Specifically, only the malicious prosecution claim is subject to dismissal based on § 821.6. See,
3 e.g., Garmon v. Cty. of L.A., 828 F.3d 837, 847 (9th Cir. 2016) (holding that § 821.6 provides
4 immunity for malicious prosecution claims only based on a California Supreme Court decision
5 Sullivan, in spite of post-Sullivan state appellate court decisions holding otherwise); Sharp v. Cty.
6 of Orange, 871 F.3d 901, 920-21 (9th Cir. 2017) (acknowledging that “intermediate appellate
7 courts have expanded the [§ 821.6] immunity to investigative steps taken prior to a judicial
8 proceeding, including action by police officers” but, “because California’s highest court has not
9 extended § 821.6 immunity to actions outside of malicious prosecution, this immunity does not
10 apply here”).
11 b. Approval of Photo Lineup
12 The Court, however, reaches a different conclusion to the extent Mr. Collins challenges the
13 prosecutors’ alleged approval of the second photo lineup. Here, denying immunity would not
14 constitute unseemly judicial interference or encroachment on prosecutorial independence,
15 particularly when the lineup took place before any arrest of Mr. Collins (i.e., well before the
16 decision to prosecute).
17 As for § 821.6 immunity, the Court finds it inapplicable based on Ninth Circuit authority
18 (1) recognizing that “intermediate appellate courts have expanded the [§ 821.6] immunity to
19 investigative steps taken prior to a judicial proceeding” but (2) holding that the immunity does not
20 apply “because California's highest court has not extended § 821.6 immunity to actions outside of
21 malicious prosecution.”5 Sharp, 871 F.3d at 920-21.
22 Of course, even though there is no statutory immunity for the state law claims based on the
23 approval of the lineup, this does not mean that the claims are viable as pled. Consistent with the
24 above, the Court finds the claims conclusorily pled. Mr. Collins has leave to amend so that he can
25
5 The Court does not address the County Defendants’ additional argument that they are privileged
26
from suit – in particular, the defamation claim – pursuant to California Civil Code § 47. The
argument is difficult to assess because it is not even clear from the FAC what the factual basis for
27
the defamation claim is. Because the Court is already giving Mr. Collins an opportunity to amend,
1 plead, inter alia, what the prosecutors knew at the time of the lineup and how they had such
2 knowledge.
3 D. Punitive Damages
4 The County Defendants contend next that any claim for punitive damages must be
5 dismissed against them: (1) because “a public entity may not be held liable for punitive damages”
6 and (2) because “a claim for punitive damages against governmental employees [requires a
7 showing] that a defendant acted with fraud, oppression or malice, which is entirely absent in [the]
8 FAC.” Mot. at 22.
9 In response, Mr. Collins does not dispute that punitive damages cannot be asserted against
10 the County. However, he maintains that the individual prosecutors, Ms. O’Malley and Ms.
11 Carvolth, are still subject to punitive damages. The problem for Mr. Collins is that he has not
12 specified how the individual prosecutors acted with fraud, oppression, or malice. As discussed
13 above in conjunction with qualified immunity, if all that the prosecutors did was give approval to
14 the second lineup with knowing anything else (such as the first lineup or the circumstances under
15 which the color photo of Mr. Collins was obtained), then it is difficult to see any malice on their
16 part.
17 The Court therefore dismisses the claim for punitive damages against the County with
18 prejudice. The claim for punitive damages against the individual prosecutors is also dismissed but
19 with leave to amend.
20 E. Injunctive Relief
21 Finally, the County Defendants argue that Mr. Collins’s request for injunctive relief is
22 moot because he has already been released from custody. See Mot. at 23. Mr. Collins’s request
23 for injunctive relief is predicated on the following allegation:

24 Defendants, and each of them, are in possession of Mr. Collins’
belongings that must be preserved and that contain exculpatory
25 evidence. Money damages are insufficient and inadequate to
address the irreparable Mr. Collins will suffer if the items of
26 evidence are destroyed and not preserved. Demand is hereby made
for protective order to maintain as evidence following: (1) Mr.
27 Collins’ cell phone; (2) The cell phones of Defendants Nuon and
police vehicle computer used in the traffic stop [and] (4) All of Mr.
1 Collins’ belongings still in possession of Defendants. Mr. Collins’
cell phone is, and always has been, a key piece of evidence proving
2 his innocence. Mr. Collins will suffer irreparable harm for which
money damages would not suffice as a remedy. Hence, the cause of
3 action for injunctive relief is necessary and appropriate to prevent
Oakland Police Department and any Defendants from destroying
4 and spoliating any evidence in this case and particularly Mr. Collins
cell phone containing exculpatory evidence.
5
6 FAC ¶ 351. In his opposition, Mr. Collins also refers to his prayer for relief which includes a
7 request that he be declared factually innocent of all dismissed charges. See Opp’n at 24 (arguing
8 that “his dismissed charges and false arrest remain on the books and constitute a current, ongoing
9 harm”).
10 It is not clear, however, that this Court has the power to make a declaration of factual
11 innocence; that would appear to be a matter to be addressed within the state court system. See Cal.
12 Pen. Code § 851.8(c) (“In any case where a person has been arrested, and an accusatory pleading
13 has been filed, but where no conviction has occurred, the defendant may, at any time after
14 dismissal of the action, petition the court that dismissed the action for a finding that the defendant
15 is factually innocent of the charges for which the arrest was made.”).
16 As for the injunctive relief, if Mr. Collins is simply seeking a preservation order, that can
17 easily be done in this lawsuit without a need for a claim for injunctive relief. The Court thus
18 dismisses the claim for injunctive relief, without prejudice to Mr. Collins seeking a preservation
19 order (although the parties are expected to meet and confer and, if necessary, file a stipulation and
20 proposed order on preservation).
21 III. CONCLUSION
22 For the foregoing reasons, the Court grants the County Defendants’ motion to dismiss:
23 • Federal claims.
24 o The Court dismisses with prejudice all federal claims asserted against the
25 individual prosecutors which are based on their decision to prosecute.
26 o The Court dismisses without prejudice all federal claims asserted against
27 the individual prosecutors which are based on their approval of the second
1 o The Court dismisses with prejudice all federal claims asserted against the
2 County which are based on the decision to prosecute.
3 o The Court dismisses without prejudice all federal claims asserted against
4 the County which are based on the approval of the second photo lineup.
5 Mr. Collins has leave to amend.
6 • State claims.
7 o The Court dismisses with prejudice all state claims asserted against the
8 individual prosecutors and the County which are based on the decision to
9 prosecute.
10 o The Court dismisses without prejudice all state claims asserted against the
11 individual prosecutors and the County which are based on the approval of
12 the second photo lineup. Mr. Collins has leave to amend.
13 • Relief.
14 o The claim for punitive damages against the County is dismissed with
15 prejudice. The claim for punitive damages against the prosecutors is
16 dismissed but with leave to amend.
17 o The claim for injunctive relief is dismissed.
18 Mr. Collins has until February 22, 2021, to file an amended complaint consistent with the
19 above. The only amendments permitted are those described in this opinion. The County
20 Defendants have until March 15, 2021, to file a response to the amended complaint.
21
22 IT IS SO ORDERED.
23
24 Dated: January 26, 2021
25
26 ______________________________________
EDWARD M. CHEN
27 United States District Judge

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10066547. Public record. Not legal advice.