The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
SHON LATTY,
Plaintiff,
Vv. Case No. 3:19-cv-00883-MO
POLK COUNTY SHERIFF’S OFFICE, OPINION AND ORDER
a department of Polk County; POLK
COUNTY DISTRICT ATTORNEY’S
OFFICE, a department of Polk County; and
AARON FELTON,
Defendants.
MOSMAN, J.,
Plaintiff “Mr. Latty”) filed his First Amended Complaint [ECF 6] on July 11, 2019.
Defendants Polk County District Attorney’s Office (“Polk County DA”) and Aaron Felton (Mr.
Felton”) filed a Motion to Dismiss [ECF 15] on October 4, 2019. For reasons discussed below, I
GRANT Defendants’ motion as to Polk County DA and dismiss with prejudice any claims
against it. I also GRANT the motion as to Mr. Felton and dismiss without prejudice any claims
against him.
BACKGROUND
In his First Amended Complaint (“the Complaint”), Mr. Latty alleges that Mr. Felton
assigned him to a “Brady list” that serves to identify law enforcement officers who are
determined to be categorically unqualified from testifying in court, pursuant to Brady v.
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Maryland, 373 US. 83 (1963). Compl. [6] 7 12-13. He alleges that after Mr. Felton assigned
him to that list, he was reassigned to a position as a corrections deputy—from his previous
assignment as a patrol deputy—because he could no longer testify in court. Jd. § 14. Mr. Latty
alleges that this reassignment deprived him of a constitutionally protected interest because he
had a reasonable expectation of entitlement to his position as a patrol deputy and because his
placement on the list subjected him to a stigma that has harmed his employment prospects. Id. □□
15-16.
Defendants Polk County DA and Mr. Felton (collectively, “Defendants”) moved to
dismiss Mr, Latty’s complaint on two distinct theories. First, Defendants argued that the lawsuit
is barred by the Eleventh Amendment, to the extent that Mr. Latty seeks relief from Polk County
DA. Mot. to Dismiss [15] at 3. Defendants also argue that prosecutorial immunity bars Mr. Latty
from seeking any damages from Mr. Felton. Jd. at 7. Second, Defendants argue that Mr. Felton
did not deprive Mr. Latty of any constitutional right, and to the extent any violation did occur,
Mr. Felton had no personal involvement in that activity. Jd. at 4-6. For reasons explained below,
I agree with Defendants’ reasoning and GRANT their motion to dismiss.
LEGAL STANDARD .
When reviewing a motion to dismiss, the court must “accept all factual allegations in the
complaint as true and construe the pleadings in the light most favorable to the nonmoving party.”
Knievel vy. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). To survive a motion to dismiss for failure
to state a claim under Federal Rule of Civil Procedure 12(b)(6), “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). Mere legal conclusions are insufficient to state a claim. /gbal, 556 U.S. at 678.
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Federal Rule of Civil Procedure 15 provides that a court should freely give leave to
amend a complaint “when justice so requires.” Fed. R. Civ. P. 15(a)(2). As such, when a court
dismisses a complaint for failure to state a claim, “leave to amend should be granted ‘unless the
court determines that the allegation of other facts consistent with the challenged pleading could
not possibly cure the deficiency.’” DeSoto v. Yellow Freight Sys., Inc., 957 F.2d 655, 658 (9th
Cir. 1992) (quoting Schreiber Distrib. Co. v. Serrv-Well Furniture Co., 806 F.2d 1393, 1401 (9th
Cir. 1986)). If amendment would be futile, the court need not grant leave to amend. Jd.
DISCUSSION
I. Eleventh Amendment immunity
The Eleventh Amendment bars citizen lawsuits against states in federal court. Hans v.
Louisiana, 134 U.S. 1 (1890). This immunity from suit extends to the Polk County District
Attorney’s office, which operates as a state agency when its officials act in their “prosecutorial
capacity.” See Cannon v. Polk Cty. Dist. Att’y, 501 Fed. Appx. 611, 613 (9th Cir. 2012)
(unpublished opinion) (citing Del Campo v. Kennedy, 517 F.3d, 1070, 1073 (9th Cir. 2008)).
Identifying witnesses who are disqualified under Brady is a prosecutorial function, not an
administrative one, because it involves decisions about how the DA’s office will prosecute
crimes. Enforcing Brady is squarely within the prosecutorial function of the office, and any
lawsuits pertaining to that function are barred by the Eleventh Amendment. Mr. Latty’s claims
against the Polk County DA are hereby DISMISSED with prejudice.
Further, a prosecutor acting in his prosecutorial capacity enjoys absolute immunity from
suits for money damages. Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976). To the extent that
any of Mr. Latty’s claims can be construed as seeking money damages from Mr. Felton, those
claims are also DISMISSED with prejudice.
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II. Plaintiff’s claims as to Mr. Felton
To state a claim pursuant to 42 U.S.C. § 1983, a plaintiff must plead the following
elements: (1) a violation of rights protected by the Constitution or created by federal statute, (2)
proximately caused (3) by conduct of a ‘person’ (4) acting under color of state law. Crumpton v.
Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). Mr. Latty has alleged three violations of his
constitutional right to due process: the deprivation of his job as a patrol deputy, the attachment to
him of a stigma arising from his placement on the Brady list, and a deprivation of procedural due
process when he was placed on the list. Compl. [6] {J 15-16, 28. Mr. Latty has not pleaded facts
that demonstrate that any constitutionally protected interest has been infringed, and I therefore
dismiss his claims.
A. Constitutionally protected property interest
Even if Mr. Latty had pleaded fact sufficient to show causation, he has not pleaded facts
sufficient to show that he had a constitutionally protected property interest in his position as a
patrol deputy. “A government employee is not entitled to due process based on deprivation of
property, when removed from a position, unless the employee has ‘a legitimate claim of
entitlement’ to the position.” Weisburch v. Cty. of Los Angeles, 119 F.3d 778, 780 (9th Cir.
1997) (quoting Board of Regents v. Roth, 408 U.S. 564, 577 (1972)). This claim of entitlement
cannot be an “abstract need” or a “desire” for the position. Roth, 408 U.S. at 577. Finally, the
entitlement must be grounded in state law and cannot be removable except “for cause.”
Weisburch, 119 F.3d at 780 (citation omitted).
Here, Mr. Latty argues that he was entitled to remain in his role as a patrol deputy. But he
has pointed to no source of state law that creates this entitlement. He argues that there was an
“implied-in-fact agreement” that he would remain on patrol, but an implied agreement with a
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former district attorney—not Mr. Felton—is not a source of state law, absent some Oregon
statute or Oregon Supreme Court ruling that says this type of agreement creates an ongoing,
nonremovable entitlement to a specific term of one’s employment. Pl. Resp. [16] at 6. Mr. Latty
has supplied no authority of any kind that supports his assertion that this is so. Id.
Mr. Latty also seems to suggest that the Collective Bargaining Agreement (“CBA”) that
governed his employment created an entitlement to remain in the role of patrol deputy. Pl. Resp.
[16] at 6-7. But Mr. Latty has not provided the agreement or produced any language, clause,
terms of employment, or any other information that would create a legal entitlement to
continuation in his role. He has also not produced any terms of the CBA that govern
reassignments of deputies. See Weisbuch, 119 F.3d at 781 (explaining that rules governing
reclassifications of employees may inform the inquiry into whether a property right exists).
Absent more specific information about the terms of the CBA, it cannot provide the basis for a
legal entitlement to remain as a patrol deputy.
Finally, Mr. Latty argues that his reassignment amounted to a demotion, which implicates
a property right. Pl. Br. [16] at 8. Mr. Latty cites to one case for the proposition that a demotion
may implicate a property right, but that case, which is unpublished, does not support his overall
argument. Maner v. Cty. of Stanislaus, 725 Fed. Appx. 485, 488 (9th Cir. 2018) (unpublished
opinion). In Maner, the Ninth Circuit held that some evidence is required to show that a
reassignment constitutes a demotion, beyond the employee merely disliking the new position. Jd.
(e.g. a negative effect on one’s salary or benefits), Mr. Latty has provided no evidence here to
support his assertion that his reclassification was a demotion, such as a reduction in salary. Pl.
Br. [16] at 8. In cases such as these, the Ninth Circuit has consistently held that a property
interest is not implicated. See, e.g., Stiesberg v. State of Cal., 80 F.3d 353, 356-57 (9th Cir. 1996)
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(state highway patrol officer’s rights were not implicated where he was transferred to a position
with no effect on his pay, rank, or privileges); Weisbuch, 119 F.3d at 781 (medical director’s
property interests were not implicated where he was reassigned to “associate” medical director
with no loss of pay or rank); Abel v. City of Algona, 348 Fed. Appx. 313 (9th Cir. 2009)
(unpublished opinion) (police officers’ rights were not implicated by reassignment to
administrative work that came with no loss of rank or pay).
In sum, Mr. Latty has failed to show that he possessed a constitutionally protected
property interest in his role as a patrol deputy. Any claims against Mr. Felton alleging a
deprivation of Mr. Latty’s property interest in his position as a patrol deputy are therefore
dismissed.
B. Constitutionally protected liberty interest
Mr. Latty’s second theory of harm alleges that his placement on the Brady list was so
severely stigmatizing that it deprived him of a liberty interest in seeking new employment, and
that due process entitled him to a hearing prior to being placed on the list. Compl. [6] {J 27, 28.
To state a claim for stigmatic harm as part of a § 1983 claim in the employment context, a
plaintiff must plead two elements: (1) the stigmatizing nature of the harm, and (2) the substantial
falsity of the disseminated information. Codd v. Velger, 429 U.S. 624, 627 (1977). This is
because the due process remedy for such a harm is an “opportunity to refute the charge.” Jd.
(citing Board of Regents v. Roth, 408 U.S. 564, 573 (1972)).
Here, as in Codd, Mr. Latty has not pleaded the second element. He does not dispute that
his placement on the Brady list was based on any substantial falsity or untruth. Mr. Felton’s
decision was based on personnel records that reflected Mr. Latty’s disciplinary record, including
records of his disciplinary suspension in 2010. Compl. [6] {J 10-13. Mr. Latty does not dispute
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the truth of any information in his personnel records. He disputes only the decision to place him
on the Brady list.
This is not sufficient to state a claim for a stigmatic harm pursuant to § 1983. He has not
alleged that the Sheriffs Office or Mr. Felton disseminated any false and defamatory
information about him. Rather, he has alleged only that he disagrees with the outcome of Mr.
Felton’s assessment of the apparently true and correct information in the personnel file and the
action Mr. Felton took based on that assessment. This is not enough. See Fleisher v. City of
Signal Hill, 829 F.2d 1492, 1495 (9th Cir. 1987) (holding that a decision to terminate a police
officer based on poor performance is insufficient to implicate a liberty interest when that
decision is not based on false information). Mr. Latty’s claims alleging infringement of his
reputational liberty interest are hereby dismissed.
Finally, because Mr. Latty has not identified a constitutionally protected interest that is
implicated in this case, he was not entitled to any due process. His claims to that end are also
dismissed.
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CONCLUSION
In sum, I agree with the bulk of Defendants’ arguments and GRANT the Motion to
Dismiss [15] in its entirety. Plaintiff's claims against the Polk County District Attorney’s office
are DISMISSED with prejudice. Plaintiff's claims against Mr. Felton are DISMISSED without
prejudice. Plaintiff may file an amended complaint within fourteen (14) days of the date of this
order.
IT IS SO ORDERED.
DATED thiss“}day of January, 2020.
_ NWN Sw
MICHAEL W. MOSMAN
United States District Judge
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