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1 These are the only remaining defendants in this action. 

Defendants State of California; Ira Kaufman; William Pangman; Garrett

Olney; and Doug Prouty have been dismissed by earlier order of the

district court. (See Order filed January 21, 2005.)

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

JOSEPH ROBINSON, No. CIV.S-04-1888 GEB DAD PS

Plaintiff,

v. FINDINGS AND RECOMMENDATIONS

STATE OF CALIFORNIA, et al.,

Defendants.

___________________________/

This action came before the court on October 14, 2005, for

hearing on the motion to dismiss pursuant to Federal Rule of Civil

Procedure 12(b)(6), or in the alternative summary judgment, filed on

behalf of defendants Plumas County; Greg Hagwood; James Reichle; Jeff

Cunan; and Gary McGowan.1 Plaintiff, proceeding pro se, appeared

telephonically on his own behalf at the hearing on the motion. 

Kristina M. Hall appeared on behalf of defendants. For the reasons

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2 As indicated on the record during the hearing, the privilege

of appearing telephonically in this matter is revoked as to

plaintiff, who is now required to personally appear at any future

proceedings.

2

explained below, the undersigned will recommend that defendants’

motion to dismiss be granted and plaintiff’s second amended complaint

be dismissed without further leave to amend.2

LEGAL STANDARDS

A motion to dismiss pursuant to Rule 12(b)(6) of the

Federal Rules of Civil Procedure tests the sufficiency of the

complaint. See North Star Int’l v. Arizona Corp. Comm’n, 720 F.2d

578, 581 (9th Cir. 1983). Dismissal of the complaint or of any claim

within it “can be based on the lack of a cognizable legal theory or

the absence of sufficient facts alleged under a cognizable legal

theory.” Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th

Cir. 1990); see also Robertson v. Dean Witter Reynolds, Inc., 749

F.2d 530, 534 (9th Cir. 1984).

In considering a motion to dismiss for failure to state a

claim, the court accepts as true all material allegations in the

complaint and construes those allegations, as well as the reasonable

inferences that can be drawn from them, in the light most favorable

to the plaintiff. See Hishon v. King & Spalding, 467 U.S. 69, 73

(1984); Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). 

In a case where the plaintiff is pro se, the court has an obligation

to construe the pleadings liberally. Bretz v. Kelman, 773 F.2d 1026,

1027 n.1 (9th Cir. 1985)(en banc). However, the court’s liberal

interpretation of a pro se complaint may not supply essential

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3 The California Court of Appeal for the Third Appellate

District reversed the judgment of conviction, finding that plaintiff

did not waive his right to the assistance of counsel at his

preliminary examination and was erroneously denied appointed counsel

at that preliminary examination. The undersigned has taken judicial

notice of the unpublished decision of the Court of Appeal attached to

plaintiff’s request for judicial notice. Pursuant to Federal Rule of

Evidence 201, the court may take judicial notice of its own files and

state court records. See Burbank-Glendale-Pasadena Airport Auth. v.

City of Burbank, 136 F.3d 1360, 1364 (9th Cir. 1998); United States

v. Wilson, 631 F.2d 118, 119 (9th Cir. 1980). “[W]hen a court takes

judicial notice of another court's opinion, it may do so ‘not for the

truth of the facts recited therein, but for the existence of the

opinion, which is not subject to reasonable dispute over its

authenticity.’” Lee v. City of Los Angeles, 250 F.3d 668, 690 (9th

Cir. 2001)(quoting Southern Cross Overseas Agencies, Inc. v. Wah

Kwong Shipping Group Ltd., 181 F.3d 410, 426-27 (3rd Cir. 1999)).

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elements of a claim that are not pled. Pena v. Gardner, 976 F.2d

469, 471 (9th Cir. 1992); Ivey v. Bd. of Regents of Univ. of Alaska,

673 F.2d 266, 268 (9th Cir. 1982).

ANALYSIS

This action arises from plaintiff Joseph Robinson’s

conviction, following a jury trial in the Plumas County Municipal and

Superior Court, and his imprisonment for possession of marijuana for

sale, transporting marijuana and offering to sell, furnish or give

away marijuana, all while being armed with a firearm. In this civil

action, plaintiff is challenging those criminal proceedings on a

variety of purported constitutional grounds.3

As a preliminary matter, in his written opposition and at

the hearing on the motion, plaintiff voluntarily requested that

defendants District Attorney James Reichle and Detective Greg Hagwood

be dismissed from this action. Defendants do not object to

plaintiff’s request. Therefore, the court will recommend that

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defendants Reichle and Hagwood be dismissed from this action pursuant

to plaintiff’s voluntary request. See Fed. R. Civ. P. 41(a)(2).

The remaining defendants are Plumas County and deputy

district attorneys Jeff Cunan and Gary McGowan. Plaintiff’s second

amended complaint continues to allege that defendants wrongfully

convicted and imprisoned plaintiff in violation of his constitutional

rights. However, as was the case with plaintiff’s amended complaint,

it appears that the second amended complaint does not contain a short

and plain statement as required by Federal Rule of Civil Procedure

8(a)(2). As plaintiff has been advised previously, while the Federal

Rules adopt a flexible pleading policy, a complaint must give fair

notice and state the elements of the claim plainly and succinctly. 

Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984). 

Plaintiff is required to allege with at least some degree of

particularity overt acts which defendants engaged in that support

plaintiff’s claim. Id. 

The second amended complaint, consisting of six “counts,”

fails to meet these requirements. The first and second counts are

for “Conspiracy to Wrongfully Convict and Imprison Plaintiff” and

“Wrongful Conviction and Imprisonment,” respectively. The third and

fourth counts are for “Conspiracy to Violate Plaintiff’s Right to be

Free From Unreasonable Search and Seizure” and “Violation of

Plaintiff’s Right to be Secure Against Unreasonable Search and

Seizure,” respectively. The fifth and sixth counts are for

“Conspiracy to Violate Plaintiff’s Right to the Assistance of

Counsel” and “Violation of Plaintiff’s Right to the Assistance of

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counsel,” respectively. However, the allegations under those

headings are conclusory and sprinkled with references to the denial

of “reasonable bail,” the denial of the right “to present a defense

to the jury at trial,” violations of “due process rights,” and so on. 

Thus, just like plaintiff’s earlier pleadings, the precise nature of

the attempted claims in the second amended complaint is unclear. As

such, the second amended complaint’s allegations do not amount to a

short plain statement of a claim showing that plaintiff is entitled

to relief. See Fed. R. Civ. P. 8(a)(1).

The attachment of the 23-page, 611-paragraph “statement of

facts” to plaintiff’s second amended complaint does not impact the

undersigned’s analysis in this regard. That statement is not “short

and plain.” The order dismissing the amended complaint with leave to

amend expressly admonished plaintiff that a similar 24-page, 593-

paragraph declaration did not amount to a short and plain statement

of a claim. Further, like the rest of the second amended complaint,

the attached statement of facts confusingly contains numerous

allegations regarding defendants whom were long ago dismissed from

this case.

Even if the second amended complaint were found to comply

with the requirements of Rule 8, it also clearly fails to state a

cognizable claim. While the second amended complaint makes reference

to 42 U.S.C. § 1983 (Second Am. Compl. at 2), like the amended

complaint it still does not allege how the conduct complained of has

resulted in a deprivation of a right, privilege or immunity secured

by the Constitution or federal law by a person acting under color of

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state law. L.W. v. Grubbs, 974 F.2d 119, 120 (9th Cir. 1992); Lopez

v. Dept. of Health Serv., 939 F.2d 881, 883 (9th Cir. 1991). (See

Order filed June 30, 2005, at 5-6.) Additionally, as discussed at

the hearing on the motion, the conduct attributed to defendants Cunan

and McGowan by plaintiff occurred entirely in the course of their 

appearances as the prosecutors assigned to plaintiff’s case in the

state court criminal proceedings. The fact that the state trial

court erred as a matter of state law by allowing the prosecutors to

participate in hearings with respect to the appointment of counsel,

thereby prohibiting plaintiff from presenting a confidential

financial statement at those hearings, does not effect that

conclusion. Regardless of the state trial court’s errors, the

prosecutors were performing functions “intimately associated with the

judicial phase of a criminal proceeding.” Imbler v. Pachtman, 424

U.S. 409, 430 (1976). A prosecutor is entitled to absolute immunity

from a civil action for damages under § 1983 in connection with such

conduct. See Burns v. Reed, 500 U.S. 478, 486 (1991); Imbler, 424

U.S. at 431; KRL v. Moore, 384 F.3d 1105, 1110-13 (9th Cir. 2004). 

Finally, as to defendant Plumas County the second amended

complaint still fails to sufficiently allege a claim of municipal

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4 Further, it would appear that to the extent plaintiff is

attempting to state a Monell claim against the County of Plumas, it

is based solely on the actions of District Attorney Reichle. 

However, in electing to prosecute a district attorney in California

acts on behalf of the state, not the county. Weiner v. San Diego

County, 210 F.3d 1025, 1031 (9th. Cir. 2000) (“We conclude that a

California district attorney is a state officer when deciding whether

to prosecute an individual.”); see also Pitts v. County of Kern, 17

Cal. 4th 340 (1998). State officials are not subject to suit under 

§ 1983. Will v. Michigan Dept. of State Police, 491 U.S. 58, 71

(1989). Accordingly, the County of Plumas is not subject to

liability under § 1983 for the actions of District Attorney Reichle.

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liability arising from any policy of Plumas County.4 See Monell v.

Department of Social Servs., 436 U.S. 658, 690-91 (1978); Gillette v.

Delmore, 979 F.2d 1342, 1346-47 (9th Cir. 1992). In this regard,

plaintiff has again failed to even allege in conclusory fashion that

the injury complained of was the consequence “of a government's

policy or custom, whether made by its lawmakers or by those whose

edicts or acts may fairly be said to represent official policy ...." 

Monell, 436 U.S. at 694. Each of these deficiencies also existed in

the amended complaint and plaintiff has been unable to correct them.

The undersigned also recognizes that the second amended

complaint makes reference to 42 U.S.C. § 1985(3). (See Second Am.

Compl. at 2.) However, plaintiff has failed to allege specific facts

from which a conspiracy between defendants could be inferred. See

Olsen v. Idaho State Bd. of Medicine, 363 F.3d 916, 929-30 (9th Cir.

2004); Burns v. County of King, 883 F.2d 819, 821 (9th Cir. 1989). 

Additionally, plaintiff’s failure to allege a § 1983 deprivation of

rights precludes a § 1985 conspiracy claim predicated on the same

allegations. See Olsen, 363 F.3d at 930; Caldeira v. County of 

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Kauai, 866 F.2d 1175, 1182 (9th Cir. 1989). The second amended

complaint must be dismissed for these reasons as well.

Because of these deficiencies, plaintiff’s second amended

complaint must be dismissed. Granting leave to amend would be futile

in light of the nature of the deficiencies noted above. See Schmier

v. United States Court of Appeals for the Ninth Circuit, 279 F.3d

817, 824 (9th Cir. 2002). Therefore, the undersigned will recommend

that the second amended complaint be dismissed without further leave

to amend.

CONCLUSION

Accordingly, IT IS HEREBY RECOMMENDED that:

1. Defendants Reichle and Hagwood be dismissed from this

action pursuant to plaintiff’s voluntary request. See Fed. R. Civ.

P. 41(a)(2);

2. The pending motion to dismiss pursuant to Rule 12(b)(6)

be granted as to defendants Plumas County, Jeff Cunan and Gary

McGowan; and

3. Plaintiff’s second amended complaint be dismissed

without further leave to amend.

These findings and recommendations are submitted to the

United States District Judge assigned to the case, pursuant to the

provisions of 28 U.S.C. § 636(b)(1). Within ten (10) days after

being served with these findings and recommendations, any party may

file written objections with the court and serve a copy on all

parties. Such a document should be captioned “Objections to

Magistrate Judge’s Findings and Recommendations.” The parties are

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advised that failure to file objections within the specified time may

waive the right to appeal the District Court’s order. See Martinez

v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

DATED: October 21, 2005.

DAD:th

ddad1\orders.prose\robinson1888.mtd.f&r

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