morning your honor is in may it please the court stephanie must play on behalf of helen steven kaiser and gloria young i like to reserve five minutes of my time for i could please this court should reverse the district court's dismiss require a plaintiff to plead factual a gala gay sions that rise above the speculative level to state a plausible claim that ball do not however require a plaintiff to make detailed allegations of fact nor do they require the plaintiffs to attach documents to a complaint this is especially the case where the plaintiff is unlikely to have access to the relevant information so can i ask  how that applies to the customer practice argument with the failure to train under monday when the liability because i don't see any allegations in the complaint that would would support either those two claims so in terms of the failure to train is the reason the court dismissed is because the court was looking for a pattern of untrained employee actions however the the district court pulled that standard from comic versus thompson and connick vs thompson involves soley the actions of prosecutors prosecutors who are trained in the law they all go to law school they all presumably know what brady is before they ever get there the case of city of canton however is the correct standard and we're talking about police officers and that cas recognizes that in certain situations there is an obvious need to train such as when you're dealing with unreasonable force and such in this case where police officers they don't go to law school they don't have any preexisting knowledge of what brady evidence is they need to be trained on it why isn't that just covered by the policy i mean under your theory if the paul let's assume that the policy was incorrect or was unconstitutional deprived constitutional deprivation would you automatically have a failure to train because the presumption would be you're training consistent with the policy so therefore you trained in consistent with ye is that is that what you're relying on or is there something more that is what we are reeling on yes ok but customer practice is that same thing you're relying on for custom and practice it is so it really just boils down to the allegation that there was a policy which had an improper definition of brady evidence is that correct that is correct ok so so as i read the complaint it seemed like it boiled down to the paragraph thirty two statement that defendant's policy is defined in the evidence as only evidence for the possible impeachment of government employees is there anything else that provides to tales about the allegedly erroneous policy that is what we provided for in our complaint we do have a copy of the policy and we had requested that if the court was found that this allegation was not is the statement for brady evidence we determine that that's an incorrect statement of law that's enough we don't need to see the policy do i mean you make perhaps you should have the opportunity for leave to amend on the customer practice for failure to train searching however on should this court decide that that isn't sufficient then then we would request leave to amend to add to the policy what more would you add i mean did you make a profit you did you did you make a request for it you did make a request for leave to amend blow right we did did you submit an amended complaint a proposed amended complaint the well the court denied leave to amend without any explanation we would have to get you didn't submit a proposed amended complaint and usually don't you submit a proposed amended complaint with your request for leave to amend usually i believe usually it's submitted with the amended  i apologize ok when you are granted leave to amend the st time we did not attach a proposed policy largely because we didn't have the policy the what can counties policy because we had a copy of it yet but when it was initially granted no we did not submit a proposed amendment that was after the court well i'm just wondering if the court knew what you usually would give the court and idea whether it's through an actual proposed amended complaint or explain what it is you would a man and so what what are you going to add to that the policy claim that is not in the current one what we stated to the district court and what we would be doing here would be attaching a copy of the actual policy from on that note the district court abused its discretion by dismissing this complaint without leave to amend the district court gave no reason whatsoever for denying our request for leave to amend nowhere in its order did it state that amendment would be futile it's simply denied it however as this court has held denying that leave to amend without any explanation whatsoever is an abuse of discretion which would include the what county sheriff's office as part of our complaint so as a matter of law the sheriff's office does not get capacity it just simply doesn't apply to this case the county in two different ways is that what you're saying that is correct is a suit against the county and the county sheriff's office which is a subdivision of the county and against the prosecuting for the state in the acting as a prosecutors that would have the state's freedom in it well again that does not apply to the sheriff's office and secondly  crimes it does not apply to situations where the prosecutor is giving advice to the rest of the county that portion of a prosecutor's duties is specifically a please that record george roche on behalf of walken county and david mackay and i would submit that the central issue present before the court today is whether the point of sale supported their case with material facts or whether they proffer legal conclusions and in both their original complaint and their amended complaint specifically in regards to the alleged policy that exists and walk in county and examine if you take issue and say that there are description of the policies and correct in the complaint  i do though i am not i won't go to the merits of what the policy in and of itself says today because i think under the twelve b sixteen under that the case was presented we have to accept what facts they  right they do i mean they said that according to according to the plaintiff brady evidence only applies for the possible impeachment of government employees and my st position your honor would be that that that statement is a legal conclusion and not a material what is the legal conclusion as a very specific representation of what's in the policy and it's clearly wrong under the supreme court case law so that seems to specifically say  is contain i think your honor i think it is specifically previously you've mentioned that it's the plaintiff's amended complaint sub paragraph number thirty two at age nine of the amended complaint where they really outline what that policy says and i do understand that they say that the policy define spray the evidence is only implying to government employees when your motion dismissed you put in a copy of the policy i didn't feel that that would be appropriate your honor  what i think mentioning if if they quote from a document in the complaint you can certainly use that on a motion to dismiss and that goes to why i'm saying that this is a legal conclusion because it is not a quotation from the policy well then why don't we do it why don't we allow that it sounds like they want to amend the complaint and added that policy so why don't we just allow that to happen i mean this seems a bit like we're running around the tree here like let's just get the policy there and then figure out  whether it's right or wrong i will not argue with your honor this is a bit roundabout however i think that the issue goes to whether judge judge who now or made the correct decision when faced with the nd motion to dismiss under t after having originally in his st order of dismissal described in great detail what he would be looking for in an amended complaint i believe that judge can or is within his discretion when he chose to dismiss without leave to him and the complaint for order of dismissal which is docket twenty five your honor i believe in that he did conclude that immunity would bar the future presentation of that action he previously granted leave to him and i felt that that was within his discretion i would ask that this court find that that was within his discretion in affirm the district court's order under the abuse of discretion standard of course i i acknowledge that there's two actions that the court must go through made this point it's a it's a if that's what the policy says it's a clear misapplication of the law and so you've got two ways to deal with that either put in the policy and say that's not really what the policy says or argue i mean are you arguing that that is a an accurate statement of the law i'm sorry are you arguing that there are allegation in paragraph thirty two that brady evidence is only evidence for the possible impeachment of government employees are you arguing that that's an accurate statement of the law absolutely not you know ok brady so then then i don't know why i mean you either got to prove that that's not what your policy says and you can easily put in the policy or you've got to argue that it's an accurate statement of why you've done neither your honor again and i would turn i'd when analyzing the case in the presentation of the defense looking at the twelve b six and i didn't feel it was appropriate and twelve the six motion to dismiss ok what about  factor i mean you could have whether you did it wanted to as a strategic matter is a separate question but you clearly could have put it in in a motion to dismiss where it's reference any document that's referenced in the complaint you could put it in because you should allow plaintiffs to be able to do this and just misquote and then you know cite the document of the complaint so you could have done that you didn't which is a fine strategic matter but then you got to come in and argue that what they said is accurate statement of the law because we have to accept what they said is true so i just i don't see any way around this but to get the policy and if you want to talk about the policy now we can but it seems a little futile so let's just get the policy and let the district court do another analysis of whether that's whether that's a violation you know whether this is actually what the policy says if it is what the policy says you seem to be a green that it would be a mono while ation i agree if that's what the know that that is not what the policy saws you know you may be right but we don't have it and it is available and it was a public record available to the plaintiffs throughout the entire pendency of the action pieces are there i would again ask the court to take a closer examination of paragraph thirty two of the point of some and a complaint review that in comparison with judge kuhn our nd order to dismiss disagree it's a go and look at the policy in see if that's how what the policy says i would say in response to your honor that i don't think it's a representation of a material fact i think what it what what you don't think it's material that the policies describe spray the evidence  they don't just say defendants maintain an unconstitutional policy that i think would probably be conclusory rather they just cry as a pair of historical fact what the language in the policy is and we minutes ago about immunity and i think you are in your view of his decision said that did address whether amendment should be allowed and and says no it shouldn't be allowed to futility and he referenced the immunity reasons i just pulled that decision back up and my understanding is that he only reference to munity with relation to the melissa malicious prosecution claim and i incorrect about that that that he does reference that in the end of his order and in the malicious prosecution subsection absolutely your honor but i think that he's also touching on the same points as he moves through all of the four prongs essentially before that imo now and  explaining in his interpretation why it would not stand beyond that point not only because his view of the amount of complaint was that there was an insufficient backchannel basis to support that beyond the twelve pleading standard but that immunity was an issue that would prevent him from from continuing to hear that case i would say that it's a closest comparison and the th circuit case law is out of california this city of orange case where we have seen a similar case where suits brought against the prosecutor's office for brady violations and we look at that not as an a suit against the individual but a suit against the office in his official capacity and how that's barred by prosecutorial immunity as the city of orange is acting as the state has the benefit of sovereign immunity in that case if sovereign immunity applies and it prevents the a now i would say that i would take issue with that you want us to specific language well well your honor and i look at it in the combination of both orders the st order dismissing i think discusses sovereign immunity and prosecutorial immunity and in greater detail as a whole and i don't think as much as said in the nd because he turned again to the factual allegations and how the amended complaint had not changed substantially from the original  complaint but but i do feel that when you and i feel that you have to read judge coon hours orders in their totality because it's something that he he does touch on throughout the course of his reasoning in that case and i would ask you to go to the  fundamental part of this issue is if the person who has a brady obligation is not the wacom county sheriff's office or any of the people involved in the best investigation the sole person with the brady obligation is the prosecutor exercising the prosecutorial function of prosecuting the case they make the judgment of terminations about what information is brady and when information is not brady they process the discovery the duty is theirs and theirs alone but they have the benefit of the state's sovereign immunity and when we're talking about i mean as this case is presented to us we're talking about a county policy state policy or a state statute was the how is he representing the state  d he's elected by the county if that is correct but but that is you analyze the r c that apply to the duties of prosecutors and also some of the state case law that i've cited throughout the briefing it is specifically is a case welcome county versus the state of washington where that that issue is later graded litigated in great detail the county prosecutors work at the discretion of the attorney general's office in the state of washington and under the supervision of the attorney general's office in the prosecution of state criminal matters the case at issue in this case was the state of washington for versus steven kaiser and all actions taken by the walker county prosecutor's office against mr kaiser were taken on behalf of the state of washington and those prosecutors would have the benefit of the state sovereign immunity for the actions that they took in that case so the sole actor with the duty at play in this case is is an actor who has the benefit of the state sovereign immunity  and there are reasons why immunity passes to prosecutors and in their cause i do judicial in their nature the same immunities that the judges benefit from his it's the same rationale that prosecutors are supported by the same immunity because one would be loath to criminally prosecute anyone who had the ability to bring civil suit against you because it would happen as a matter of course if that were to be allowed and i think that that's at the root of the issues that were at play in this i think from a perceived or real standpoint the case has got more complex because of the nature of twelve b six motions and the nature of the motion practice that occurred in the district court i submit to this court that the district court came to the current can correct conclusion when analyzing both the original complaint and when they allowed the discretion to amend the complaint that that they viewed the facts presented to them is of stepping into it because it seems to be the only way to salvage this for you in my opinion is for us to look at the policy and i'm not sure if it's appropriate for us to do it if we should just send it back to the district court but i don't agree with your position that paragraph thirty two is just a conclusory statement you may be correct that the plaintiff has mis characterized the policy but someone's got to look at the policy it seems to me and just if you want us to or you want us to send it back to the district  provide you with what in again plaintiff and i have not conferred yeah well nobody knows what ok it is available and can be made but you wouldn't object if we sent look we want to take judicial notice of the policy absolutely  thank you very much for your time and ask that the district  rebuttal i would just like to correct a couple of statements that were made by opposing counsel st of all and whether the policy is publicly available it is available through a public records request  one i don't know how you would find it i don't think this court has the ability to make a public records request no i mean if we ordered the parties to submit it to us would that be appropriate or should we just send this back to the district court you should send it back to the district court secondly in terms of the the court's orders and the court's initial order dismissing the st complaint  the majority of that order was dedicated to the issue of prosecutorial immunity because we had named individual prosecutors that was the vast majority of this question in the order and as to immunity we took care of that we got rid of those people in terms of the court's discussion of monella all it was limited to about a paragraph and a half and in our original complaint we had stated only that what come how many had implemented are  that what ken county did not have adequate policies to ensure that brady evidence would turned over to criminal defendants and that's all we had alleged we concede that that  representation of the policy in light of you reading it yes i do ok the district court's order initial order ordering us to amend our st and complaint stated only that we had not provided factual allegations substantiating our search and that the failure to disclose defendants is do you agree with that i do not agree with that and the reason i don't agree with that is one because we amended our complaint and two because in our correct and when we were granted leave to amend that time we removed those people we took care of the immunity issues that her court had addressed in its initial order the court didn't get into whether this addressed additionally the city of orange case that what can county he was relying upon is a california case it was decided in this circuit but it relies upon california law and california statute and how california cad or categorizes it's prosecutors is no application in washington the what can county case confusing the what can county state case that dealt with state function versus county function issue in that case was whether the prosecutor who had been named as a defendant in his official capacity was intitled to a defense from the state attorney general's office as opposed to the county prosecutor's office the court states over and over again in that case that's not addressing monella issues all it's addressing is whether he's entitled to be defended by the attorney general so i would argue that case does not support their position either in some we would submit that the district court erred when it dismissed our complaint without leave to amend given that we described a specific policy that was unconstitutional on its face which should have been sufficient to state a claim under menow thank you