NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TIMOTHY S. TOFAUTE; DAVID DIXON, 

Plaintiffs-Appellants, 

 v. 

COUNTY OF MADERA; et al., 

Defendants-Appellees.

No. 18-15268 

D.C. No. 1:16-cv-01627-DADSKO 

MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of California

Dale A. Drozd, District Judge, Presiding

Submitted November 18, 2019**

Before: CANBY, TASHIMA, and CHRISTEN, Circuit Judges.

Timothy S. Tofaute and David Dixon appeal pro se from the district court’s 

judgment dismissing their 42 U.S.C. § 1983 action alleging federal and state law 

claims arising from their arrest and criminal prosecution. We have jurisdiction 

under 28 U.S.C. § 1291. We review de novo a dismissal for failure to state a claim 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

NOV 26 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 18-15268 

under 28 U.S.C. § 1915(e)(2)(B)(ii). Watison v. Carter, 668 F.3d 1108, 1112 (9th 

Cir. 2012). We affirm. 

The district court properly dismissed plaintiffs’ malicious prosecution claim 

against defendant former District Attorney Keitz on the basis of prosecutorial 

immunity because plaintiffs failed to allege facts sufficient to show that Keitz’s 

alleged conduct was not “intimately associated with the judicial phase of the 

criminal process . . . .” Imbler v. Pachtman, 424 U.S. 409, 430 (1976); Broam v. 

Bogan, 320 F.3d 1023, 1029 (9th Cir. 2003) (“A prosecutor is absolutely immune 

from liability for failure to investigate the accusations against a defendant before 

filing charges.”).

The district court properly dismissed plaintiffs’ malicious prosecution claims 

against defendants Anderson and Blehm because plaintiffs failed to allege facts 

sufficient to show that former District Attorney Keitz did not “exercise[] 

independent judgment in determining that probable cause for [plaintiffs’] arrest 

exist[ed] . . . .” Smiddy v. Varney, 665 F.2d 261, 266 (9th Cir. 1981), overruled on 

other grounds by Beck v. City of Upland, 527 F.3d 853, 865 (9th Cir. 2008); see 

also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (to avoid dismissal, “a complaint 

must contain sufficient factual matter, accepted as true, to state a claim to relief 

that is plausible on its face” (citation and internal quotation marks omitted)). 

The district court properly dismissed plaintiffs’ failure-to-train claim against 
3 18-15268 

Madera County because plaintiffs failed to allege facts sufficient to show that the 

County policymakers were personally involved in causing their injury, were aware 

that any training program was inadequate, or that a pattern of similar incidents 

existed. See Connick v. Thompson, 563 U.S. 51, 61-62 (2011) (noting that actual 

or constructive notice that a training program causes city employees to violate 

citizens’ constitutional rights and a pattern of similar constitutional violations by 

untrained employees are usually necessary for a failure-to-train claim); Ellins v. 

City of Sierra Madre, 710 F.3d 1049, 1066 (9th Cir. 2013) (county may be liable 

under § 1983 “when the plaintiff was injured pursuant to an expressly adopted 

official policy, a long-standing practice or custom, or the decision of a final 

policymaker” (citation and internal quotation marks omitted)); see also Iqbal, 556 

U.S. at 678. 

We do not consider arguments and allegations raised for the first time on 

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.