NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

LORI WALLENDER; DANIEL 

WALLENDER, 

Plaintiffs-Appellants, 

 v. 

HARNEY COUNTY; et al.,

Defendants-Appellees.

No. 21-35238

D.C. No. 2:19-cv-00004-SU

MEMORANDUM*

Appeal from the United States District Court

for the District of Oregon

Michael H. Simon, District Judge, Presiding

Submitted May 13, 2022

**

Portland, Oregon

Before: CHRISTEN and SUNG, Circuit Judges, and RAYES,*** District Judge.

* 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).

*** The Honorable Douglas L. Rayes, United States District Judge for the 

District of Arizona, sitting by designation.

FILED

MAY 19 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Lori and Daniel Wallender sued Harney County Assistant District Attorney 

Ryan Hughes under 42 U.S.C. § 1983, alleging Hughes violated their Fourth 

Amendment1rights by deceptively obtaining a grand jury indictment against them.2 

They appeal the district court’s judgment dismissing their claim without leave to 

amend. We have jurisdiction under 28 U.S.C. § 1291. We review a dismissal for 

failure to state a claim de novo, and a denial of leave to amend for an abuse of 

discretion. Brown v. Stored Value Cards, Inc., 953 F.3d 567, 572–73 (9th Cir. 2020). 

We affirm.

1. The district court properly dismissed the Wallenders’ complaint against 

Hughes because prosecutors are absolutely immune from liability under § 1983 for 

seeking indictments before grand juries. See Burns v. Reed, 500 U.S. 478, 490 n.6 

(1991); Lacey v. Maricopa Cnty., 693 F.3d 896, 912–13 (9th Cir. 2012); Milstein v. 

Cooley, 257 F.3d 1004, 1012 (9th Cir. 2001); Herb Hallman Chevrolet, Inc. v. Nash1 The Wallenders’ claim technically arises under the Fourteenth Amendment, 

“which incorporated the protections of the Fourth Amendment against the States.” 

Torres v. Madrid, 141 S.Ct. 989, 997 (2021). 

2 The Wallenders sued several defendants but voluntarily dismissed their 

claims against all except Hughes and Harney County. The Wallenders’ sole claim 

against Harney County alleged municipal liability under § 1983 and Monell v. New 

York City Department of Social Services, 436 U.S. 658 (1978). Yet the Wallenders’ 

appellate briefs do not include any argument as to this claim. Their opening brief 

does not even identify it as an issue on appeal. Because we do not consider matters 

not distinctly raised and argued in the opening brief, see Padgett v. Wright, 587 F.3d 

983, 985 n.2 (9th Cir. 2009), this decision addresses only the claim against Hughes.
3 

Holmes, 169 F.3d 636, 643 (9th Cir. 1999); Sanders v. City and County of San 

Francisco, 226 Fed. App’x 687, 690 (9th Cir. 2007).

2. The district court did not abuse its discretion in denying leave to amend 

because the Wallenders’ proposed amendments are futile. See Gardner v. Martino, 

563 F.3d 981, 990 (9th Cir. 2009). The Wallenders attempt to evade absolute 

prosecutorial immunity by alleging that Hughes acted in an investigative role before 

the grand jury, rather than as an advocate, but their proposed amended complaint 

alleges no facts supporting this contention. To state a plausible claim to relief, a 

plaintiff must plead “more than labels and conclusions.” Bell Atlantic Corp. v. 

Twombly, 550 U.S. 544, 555 (2007). The Wallenders’ proposed amended complaint 

fails to clear this bar.

AFFIRMED