This Report and Recommendation is submitted to the Honorable Dale S. Fischer, United States District Judge, pursuant to the provisions of 28 U.S.C. § 636 and General Order 05-07 of the United States District Court for the Central District of California.

I. INTRODUCTION

Plaintiff Drake Ward filed this pro se civil rights action after he was investigated on suspicion of possessing child pornography. His home was searched pursuant to a search warrant and he was later arrested pursuant to an arrest warrant. Criminal charges were filed against him in state court during the pendency of this civil lawsuit, but were ultimately dismissed.

The operative, nine-count complaint is the Fourth Amended Complaint ("FAC") filed on February 14, 2017. (Dkt. 137.) All Defendants—the City of Barstow, Detective Keith Libby, Sergeant Andrew Espinoza, Jr., Police Chief Albert Ramirez, Jr. (collectively, the "Barstow Defendants") and Deputy District Attorney ("Deputy DA") Michael Dowd—have moved to dismiss the FAC. (Dkt. 138, 139.)

For the reasons explained below, the Court recommends that these motions be GRANTED and the entire action DISMISSED WITH PREJUDICE. Many of the new factual allegations in the FAC were raised in Plaintiff's objections (Dkt. 123) to the Report and Recommendation ("R&R") issued on September 29, 2016 (Dkt. 120), and were considered before the issuance of the Final R&R on January 12, 2017 (Dkt. 131). The Court recommends dismissal of Plaintiff's claims with prejudice because, given the number of times Plaintiff has already amended, further amendment would be futile.

II. PLAINTIFF'S FACTUAL ALLEGATIONS

Since 2012, Plaintiff operated a business that provided a number of online services including "international dating, introductory service, lingerie, and travel[.]" (FAC ¶ 18.) Running this business required Plaintiff to "travel frequently to foreign countries" where he would photograph female models nude, semi-nude, and in lingerie. (FAC ¶¶ 18, 20.) A. Application for Search Warrant by Detective Libby Based on Tip from Border Patrol Agent Fellenz.

On March 1, 2014, United States Customs and Border Protection ("Border Patrol") agents searched Plaintiff's belongings as he was crossing the border from Mexico to the United States. (FAC ¶¶ 19-20.) Border Patrol agents observed approximately 500 images of nude and semi-nude models on Plaintiff's cell phone and approximately 500 more on Plaintiff's camera. (Id. at ¶¶ 20-21.) They returned Plaintiff's devices and permitted him to enter the United States. (Id.)

On March 5, 2014, Border Patrol Agent Peter Fellenz contacted Barstow Police Department ("BPD") Detective Keith Libby and informed him of the results of the search. (Id. at ¶ 22.) Libby then conducted an independent investigation by visiting Plaintiff's Facebook page and observing Plaintiff at the motel where he was staying. (Id. at ¶ 23; Dkt. 104-1 at 4 [police report attached to arrest warrant affidavit].)

On March 11, 2014, Defendant Libby drafted an affidavit supporting a search warrant application for Plaintiff's motel room. (Dkt. 95-4 [search warrant affidavit].) Plaintiff contends that, in the affidavit, Libby deliberately made false statements and omissions relevant to the issue of probable cause. (FAC ¶¶ 24-30.) On March 11, 2014, the San Bernardino Superior Court ("Superior Court") issued search warrant no. VVSW14-0378. (FAC ¶ 31; Dkt. 95-3 [search warrant].) B. Execution of the Search Warrant by Detective Libby and Sergeant Espinoza.

On March 12, 2014, BPD officers including Defendants Libby and Espinoza executed the search warrant. (FAC ¶ 32.) They seized electronic devices from Plaintiff including two laptop computers, two cellular phones, a printer and removable storage media. (FAC ¶ 36.) They also seized other pieces of property, which Plaintiff alleges were outside the scope of the warrant. (Id. at ¶ 37.)

On March 18, 2014, Detective Libby filled out a search warrant return affidavit, describing what was seized in the search. (Dkt. 104-1 at 7-8.) Plaintiff alleges that, in the return, Libby deliberately made false statements and omissions. (FAC ¶ 41.) C. Plaintiff's Requests for Return of the Seized Property.

On March 21, 2014, Plaintiff contacted Detective Libby and requested the return of his property. (FAC ¶ 42.) Libby "informed Plaintiff that all his property had been sent to the high tech crime lab in San Bernardino and that Plaintiff would have to wait until after his property had been returned from the lab to BPD, then Plaintiff would need a court order for the release of his property." (Id.)

Plaintiff retained legal counsel. (Id. at ¶ 43.) On January 12, 2015, Libby notified Plaintiff's counsel that Plaintiff's property had been returned to BPD and Libby had completed his investigation. (Id. at ¶ 44.) Libby advised that no charges would be forwarded to the District Attorney's Office and that the property could be released pursuant to Court order. (Id.)

On or about January 20, 2015, Plaintiff's counsel submitted a proposed stipulation for return of property to the supervising District Attorney, Julie Peterson. (Id. at ¶ 45.) Peterson "advised that no charges would be forthcoming based on the seized property because it could not be determined that the property was illegal, but that she would not agree to sign said stipulation." (Id.)

On February 19, 2015, Deputy DA Dowd informed Plaintiff that "he had not found any state laws violated by the Plaintiff but he was not going to agree to the release of Plaintiff's property[.]" (Id. at ¶ 46.) "[I]nstead he was going to contact foreign countries to see if any foreign laws had been violated." (Id.)

On March 9, 2015, Plaintiff filed the instant civil rights lawsuit. (Id. at ¶ 47; Dkt. 1.) "[S]ince the time Plaintiff filed his federal civil rights complaint," Plaintiff alleges, "Dowd and Libby conspired to deter the Plaintiff by means of intimidation from testifying freely, fully, and truthfully, as to matters raised in the within complaint" and "conspired to retaliate against Plaintiff for seeking legal redress for violations of his civil rights in the courts of the United States." (FAC ¶ 48.) D. Application for Arrest Warrant by Detective Libby and Filing of Criminal Charges by Deputy DA Dowd.

On March 16, 2015, Detective Libby signed an affidavit in support of a warrant for Plaintiff's arrest. (Dkt. 95-6 [arrest warrant affidavit]; Dkt. 104-1 [attachments to affidavit].) The affidavit included information submitted with the search warrant affidavit and added information obtained from the execution of the search warrant. Plaintiff contends that this affidavit, too, contains false statements or misleading omissions. (FAC ¶ 50.)

On June 11, 2015, the Superior Court issued an arrest warrant for Plaintiff. (Dkt. 95-5 [arrest warrant].) Plaintiff was arrested on June 22, 2015 and charged with possession of child pornography. (FAC ¶ 51.) He was released awaiting trial but was denied permission to leave the country for business. (Id.)

On August 13, 2015, the instant federal proceedings were stayed pending the outcome of the state criminal proceedings. (Id. at ¶ 52; Dkt. 61.) E. Proceedings in State Criminal Case.

On September 17, 2015, Plaintiff subpoenaed Deputy DA Dowd to be cross-examined at a criminal hearing on October 20, 2015. (FAC ¶ 53.) Dowd moved to quash the subpoena, and the Superior Court granted the motion. (Id.) Plaintiff filed a notice of appeal, but the California Court of Appeal ruled that it lacked jurisdiction because the order was not a final, appealable order. (Id.)

In September 2015 and February 2016, Plaintiff filed motions demanding all exculpatory evidence, such as "the journal and diaries" seized by the BPD "which contained names and ages of models." (FAC ¶¶ 54-55.) These materials were not returned to Plaintiff during his criminal case, because the District Attorney's office said the BPD "had failed to produce the evidence." (Id. at ¶ 55.)

On March 8, 2016, the District Attorney's office dismissed Plaintiff's criminal case. (Id. at ¶ 56.) On August 5, 2016, Plaintiff's property was returned to him pursuant to a court order. (Id.)

III. PROCEDURAL BACKGROUND

Plaintiff filed his initial Complaint in March 2015 (Dkt. 1) and filed a First Amended Complaint in April 2015 (Dkt. 20). The Barstow Defendants moved to dismiss. (Dkt. 17, 21, 37.) Before the motion was fully briefed, the Barstow Defendants moved for a stay because of the criminal charges filed against Plaintiff. (Dkt. 48.) On August 17, 2015, the District Judge granted the stay. (Dkt. 61.)

The District Judge also dismissed all claims against Judge Lisa Rogan and Deputy DA Michael Dowd with prejudice. (Dkt. 58.) Plaintiff later attempted to re-name these Defendants in his Second Amended Complaint. (Dkt. 80.)

On March 15, 2016, the Barstow Defendants informed the Court that Plaintiff's criminal prosecution had terminated in a dismissal of all charges. (Dkt. 66.) They renewed their motion to dismiss. (Dkt. 70.) The Court informed Plaintiff that he could either oppose the motion or file a Second Amended Complaint. (Dkt. 71.) Plaintiff filed a Second Amended Complaint in May 2016. (Dkt. 80.)

Plaintiff later sought leave to file a Third Amended Complaint asserting claims against Deputy DA Dowd based on new events. (Dkt. 85, 86.) Defendants did not oppose this. (Dkt. 90.) Accordingly, Plaintiff filed his Third Amended Complaint in July 2016. (Dkt. 92.)

The Barstow Defendants and Dowd again moved to dismiss. (Dkt. 95, 101.) The Court issued an initial R&R and then a Final R&R recommending that the action be dismissed in its entirety with prejudice. (Dkt. 120, 131.)

Plaintiff filed objections to the R&Rs and requested leave to file a Fourth Amended Complaint. (Dkt. 123, 134, 135.) On February 10, 2017, the Court vacated the Final R&R and granted Plaintiff leave to file a Fourth Amended Complaint, noting the liberal policy in favor of amendment, and further noting that Plaintiff's previous amendments largely had been in response to Defendants' motions to dismiss rather than a Court order. (Dkt. 136.)

Plaintiff filed the present Fourth Amended Complaint ("FAC") on February 14, 2017. (Dkt. 137.) Dowd and the Barstow Defendants have again moved to dismiss, arguing that the FAC does not cure the defects noted in the prior R&Rs. (Dkt. 138, 139.) Plaintiff filed an opposition (Dkt. 142) and Defendants filed replies (Dkt. 144, 145).

IV. STANDARD OF REVIEW

A Rule 12(b)(6) motion to dismiss tests the sufficiency of a statement of claim for relief. A complaint may be dismissed as a matter of law for failure to state a claim for two reasons: (1) lack of a cognizable legal theory; or (2) insufficient facts under a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990) (as amended).

In determining whether a complaint states a claim on which relief may be granted, its allegations of material fact must be taken as true and construed in the light most favorable to plaintiff. Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1989). Where, as here, the plaintiff is appearing pro se, courts must construe the allegations of the complaint liberally and must afford the plaintiff the benefit of any doubt. Karim-Panahi v. Los Angeles Police Dep't, 839 F.2d 621, 623 (9th Cir. 1988). However, "the liberal pleading standard ... applies only to a plaintiff's factual allegations." Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989). "[A] liberal interpretation of a civil rights complaint may not supply essential elements of the claim that were not initially pled." Bruns v. Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) (quoting Ivey v. Bd. of Regents, 673 F.2d 266, 268 (9th Cir. 1982)).

Moreover, with respect to a plaintiff's pleading burden, the Supreme Court has held that "a plaintiff's obligation to provide the 'grounds' of his 'entitlement to relief' requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. ... Factual allegations must be enough to raise a right to relief above the speculative level ... on the assumption that all the allegations in the complaint are true (even if doubtful in fact)." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted, alteration in original); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (To avoid dismissal for failure to state a claim, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' ... A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.").

In deciding a motion to dismiss pursuant to Rule 12(b)(6), a court may not look outside the pleadings without converting the motion into a motion for summary judgment. Anderson v. Angelone, 86 F.3d 932, 934 (9th Cir. 1996). Courts may, however, consider material that is properly subject to judicial notice. Mullis v. U. S. Bankr. Court, 828 F.2d 1385, 1388 (9th Cir. 1987); Mack v. S. Bay Beer Distribs., Inc., 798 F.2d 1279, 1282 (9th Cir. 1986) ("on a motion to dismiss a court may properly look beyond the complaint to matters of public record"), abrogated on other grounds by Astoria Fed. Sav. & Loan Ass'n v. Solimino, 501 U.S. 104 (1991)).

A court may also consider the exhibits attached to the complaint in deciding the sufficiency of a plaintiff's claims for relief. Rouse v. United States Dep't of State, 548 F.3d 871, 879 n.10 (9th Cir. 2008) ("The complaint includes all exhibits attached thereto."), opinion amended on other grounds at 567 F.3d 408 (9th Cir. 2008); Hal Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1555 n.19 (9th Cir. 1989) (documents attached to a complaint are incorporated therein by reference). Moreover, when documents contain statements that contradict allegations in a complaint, the documents control and a court need not "[a]ccept as true allegations that contradict matters properly subject to judicial notice or by exhibit." Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001). "Even if a document is not attached to a complaint, it may be incorporated by reference into a complaint if the plaintiff refers extensively to the document or the document forms the basis of the plaintiff's claim." United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).

Federal Rule of Civil Procedure 15(a) provides, "The court should freely give leave [to amend pleadings] when justice so requires." The Ninth Circuit "considers the following five factors to assess whether to grant leave to amend: (1) bad faith, (2) undue delay, (3) prejudice to the opposing party, (4) futility of amendment; and (5) whether plaintiff has previously amended his complaint." In re W. States Wholesale Nat. Gas Antitrust Litig., 715 F.3d 716, 738 (9th Cir. 2013), aff'd sub nom. Oneok, Inc. v. Learjet, Inc., 135 S. Ct. 1591 (2015). "Absent prejudice, or a strong showing of any of the remaining ... factors, there exists a presumption under Rule 15(a) in favor of granting leave to amend." Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (emphasis in original). The Ninth Circuit has further instructed that "[l]eave to amend ... should be granted more liberally to pro se plaintiffs." Ramirez v. Galaza, 334 F.3d 850, 861 (9th Cir. 2003).

V. DISCUSSION

A. Requests for Judicial Notice.

Pursuant to Federal Rule of Evidence 201(b), the Court may take judicial notice of facts that are not reasonably subject to dispute because they are "generally known within the trial court's territorial jurisdiction" or "can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned." Courts can take judicial notice of state court orders and proceedings. See, e.g., Dawson v. Mahoney, 451 F.3d 550, 551 n.1 (9th Cir. 2006). Courts may consider matters of judicial notice without converting the motion to dismiss into a motion for summary judgment. United States v. Richie, 342 F.3d 903, 908 (9th Cir. 2003).

The Barstow Defendants ask the Court to take judicial notice of (1) search warrant no. VVSW14-0378 and its supporting affidavit (Dkt. 95-3, 95-4), and (2) the arrest warrant in Superior Court case no. FVI1501393 and its supporting affidavit (Dkt. 95-5, 95-6, 104-1). They urge that judicial notice is appropriate because these are state court records and the FAC refers to them as the basis for Plaintiff's claims. (Dkt. 139-1 at 12-13 [Barstow Defendants' motion to dismiss].) For example, Plaintiff alleges that Detective Libby made false statements in the supporting affidavit to obtain the search warrant (FAC ¶¶ 24-30), and that Libby and Sergeant Espinoza exceeded the scope of the warrant when they executed it (Id. at ¶¶ 36-37). Plaintiff also alleges that the arrest warrant was obtained via false statements in the police report that was incorporated by reference into the supporting affidavit, such that Plaintiff was arrested without probable cause. (Id. at ¶¶ 49-51.)

The Court takes judicial notice of the warrants and supporting affidavits. In doing so, the Court is not accepting as true the factual assertions in those documents. Rather, the Court judicially notices as facts not reasonably subject to dispute that: (1) the warrants and supporting affidavits were issued and signed by the persons and on the dates indicated on their face, and (2) the certified copies filed by Defendants accurately reflect the contents of those documents.

Plaintiff argues that judicial notice is inappropriate because the facts are "subject to reasonable dispute," in that Plaintiff alleges that the search warrant and arrest warrant affidavits contain false statements and omissions. (Dkt. 142-1 at 9.) The Court nevertheless finds judicial notice appropriate, since it is not making a finding that the contents of the documents are true. B. Count One: § 1983 Claim against Detective Libby Based on False Statements and/or Omissions in the Search Warrant Affidavit.

In Count One, Plaintiff contends that Detective Libby violated his rights under the Fourth and Fourteenth Amendments to be free of state-conducted searches and seizures without probable cause. Plaintiff contends that Libby violated these rights by making false statements and/or omissions in the affidavit supporting search warrant VVSW 14-0378. (FAC ¶ 68.)

1. Applicable Law.

To plead a § 1983 claim based on the alleged use of false statements or omissions to obtain a search warrant, the plaintiff must plead facts plausibly showing that the defendant "deliberately or recklessly made false statements or omissions that were material to the magistrate's finding of probable cause to issue the warrant." Bettin v. Maricopa County, No. 04-02980, 2007 WL 1713319, at *14 (D. Ariz. June 12, 2007) (citing Franks v. Delaware, 438 U.S. 154, 155-56 (1978) and Galbraith v. Cty. of Santa Clara, 307 F.3d 1119, 1126 (9th Cir. 2002)). Allegations of negligence or innocent mistake are insufficient. Talada v. City of Martinez, 656 F. Supp. 2d 1147, 1153 (N.D. Cal. 2009) (citing Franks, 438 U.S. at 171).

"The materiality element—a question for the court—requires the plaintiff to demonstrate that the magistrate would not have issued the warrant with false information redacted, or omitted information restored." Smith v. Almada, 640 F.3d 931, 937 (9th Cir. 2011) (citations omitted); see also Hervey v. Estes, 65 F.3d 784, 789 (9th Cir. 1995) ("the plaintiff must establish that the remaining information in the affidavit is insufficient to establish probable cause"); Galbraith, 307 F.3d at 1126 (quoting Hervey). In other words, "To determine the materiality of omitted facts, [the court] consider[s] whether the affidavit, once corrected and supplemented, establishes probable cause. ... If probable cause remains after amendment, then no constitutional error has occurred." Bravo v. City of Santa Maria, 665 F.3d 1076, 1084 (9th Cir. 2011) (citations omitted); see, e.g., Garber v. City of Clovis, No. 09-0242, 2012 WL 273380, at *6-8 (E.D. Cal. Jan. 30, 2012) (applying this standard on a motion to dismiss, where complaint alleged no probable cause to believe that the seized property contained child pornography).

An affidavit in support of a search warrant demonstrates probable cause if, under the totality of the circumstances, it reveals a fair probability that contraband or evidence of a crime will be found in a particular place. See Illinois v. Gates, 462 U.S. 213, 238 (1983). "After-the-fact scrutiny by courts of the sufficiency of an affidavit should not take the form of de novo review. A magistrate's determination of probable cause should be paid great deference by reviewing courts." Id. at 236. Applying such deference, courts must uphold the validity of a challenged warrant if, under the totality of the circumstances, the magistrate had a substantial basis for concluding that probable cause existed. United States v. Celestine, 324 F.3d 1095, 1102 (9th Cir. 2003).

2. Analysis.

Plaintiff's allegations in Count One fail to satisfy the above-stated pleading standard. Even omitting the allegedly false statements and adding the alleged omissions, the search warrant application is sufficient to support a finding of probable cause. The FAC alleges that Libby made the following false statements or omissions:

(1) "Libby falsely profiled Plaintiff as a pedophile by selectively picking out three of the countries which he viewed during his investigation and describing them as pedophile sex tourism destinations";

(2) "Libby falsely stated that the search [by Border Patrol Agents] resulted in the discovery of several hundred images of pornography, on both devices" and "that the photos included many young teens involved in sexual activity";

(3) "Libby omitted that the faces of the two individuals performing a sex act were not visible and the [Border Patrol Agents] could not identify them as neither adults nor minors";

(4) Libby omitted that Border Patrol Agents "had discovered ID's of adult females in said images and the officers could not rule out that those ID's were associated with the two individuals engaged in a sex act";

(5) "Libby falsely stated that Officer Fellenz had observed secure files within Plaintiff's cell phone that were password locked and unable to be opened";

(6) "Libby falsely stated that [Border Patrol Agents] did not arrest the Plaintiff because the child pornography was well below the amount required by the US Attorney's Office for prosecution";

(7) "Libby falsely stated that the other officers at the San Ysidro crossing have information that Plaintiff has been involved in child

sexual tourism in the past"; and

(8) "Libby falsely stated that he did not know the result of the search by border officers at the Pennsylvania airport" and "omitted that Plaintiff had provided border officers at the Pennsylvania airport with proof that all models were over the age of eighteen by providing a journal that contained the models names, ages, and contact information."

(FAC ¶¶ 24-29.)

The Barstow Defendants argue that Count One fails to state a claim because "Plaintiff fails to acknowledge that the statements he attributes to Defendant Libby are, in fact, statements made by [Border Patrol] Agent Fellenz." (Dkt. 139-1 at 14.) They argue that "an officer ... may rely on information from other officers within his or her own department and from other departments and jurisdictions." (Id. at 15.) This argument is unavailing, because Plaintiff alleges that Libby misrepresented what Fellenz told him. (Compare FAC ¶ 22 [describing what Fellenz told Libby] with ¶¶ 24-30 [describing what Libby stated in the search warrant affidavit]; see also Dkt. 142-1 at 13 [Plaintiff's opposition to the motion to dismiss, explaining: "Libby attributed statements to Officer Fellenz that Officer Fellenz had not made to him"].)

The Barstow Defendants also argue that "this Court has already ruled on the 'new' allegations" in the FAC, because they are materially the same as the allegations in the Third Amended Complaint and Plaintiff's objections, which the Court found insufficient to undermine the Superior Court's finding of probable cause. (Dkt. 139-1 at 16 [motion to dismiss]; see also Dkt. 131 at 14-17 [R&R discussing the Third Amended Complaint and proposed amendments in Plaintiff's objections].) The Court agrees. As further explained below, the Court finds that the false statements and omissions alleged in Count One were not material to the Superior Court's finding of probable cause.

a. Plaintiff's Travels.

Regarding statement (1) above, Detective Libby's not mentioning that Plaintiff had also travelled to other countries was not an omission of information "required to prevent technically true statements in the affidavit from being misleading." Liston v. Cty. of Riverside, 120 F.3d 965, 973 (9th Cir. 1997) (quoting United States v. Stanert, 762 F.2d 775, 781, as amended at 769 F.2d 1410 (9th Cir. 1985)). That Plaintiff travelled to countries not associated with sexual tourism such as Germany or Switzerland has no tendency to render misleading the fact that Plaintiff also traveled to Mexico, Thailand, Cambodia, and the Dominican Republic.

b. Whether the Photographs Involved Depicted Sexual Acts.

Regarding statements (2) and (3) above—that there were several hundred images of "pornography" on Plaintiff's devices depicting "many" instances of sexual activity—Plaintiff contends that these statements were false because there was only one photo of a sexual act, and the faces of the women engaged in that act were not visible. (See FAC ¶ 25.) Even if there was only one photo depicting a sexual act, it is undisputed that there were many photos of nude or semi-nude women whom Border Patrol Agent Fellenz thought might be underage. The FAC admits that Plaintiff's cell phone and camera contained approximately 1,000 images of "models posing nude, semi-nude, clothed, and in lingerie." (FAC ¶ 20.) Plaintiff appears to be under the impression that the photos cannot be considered child pornography if the subjects were not depicted engaging in a sexual act. Under California law, however, child pornography can include certain kinds of nude or semi-nude photographs. See Cal. Penal Code § 311.11(a) (outlawing knowing possession of photos depicting minors personally engaging in or simulating "sexual conduct"); § 311.4(d)(1) (defining "sexual conduct" as including "exhibition of the genitals or pubic or rectal area for the purpose of sexual stimulation of the viewer").

c. Border Patrol's Decision Not to Arrest Plaintiff.

Regarding statement (5) above, the explanation of why federal border authorities declined to arrest Plaintiff was immaterial to the probable cause determination. The Superior Court would have based its determination on facts in the affidavit describing Plaintiff's history, activities, statements, and property, rather than the prosecution thresholds of the U.S. Attorney's Office.

d. There was Probable Cause for the Search Warrant, Even without the Challenged Statements.

Statements (4), (6), and (7) above are arguably relevant to the finding of probable cause. However, even omitting these statements and all the other statements that Plaintiff alleges are false, and adding the omissions alleged by Plaintiff, the affidavit would state that Border Patrol Agent Fellenz told Defendant Libby the following:

Border Patrol agents searched Plaintiff's cell phone and camera at the U.S./Mexico border and observed several hundred images of female models nude, semi-nude, and in lingerie. (Dkt. 95-4 at 3; FAC ¶¶ 20, 25.) Border Patrol Agent Fellenz also observed a photo of what appeared to be two young girls, who Agent Fellenz believed were under the age of 14, engaged in oral copulation with an adult male who Agent Fellenz believed was Plaintiff. (Id.) The girls' faces were not visible and Border Patrol agents found identification cards for adults that they "could not rule out" as belonging to the girls. (FAC ¶ 25.) The affidavit also stated that Defendant Libby had reviewed Plaintiff's Facebook profile and seen "pictures that [Plaintiff] posted on his profile of himself in the following countries: Thailand, Cambodia, and [t]he Dominican Republic. ... From my prior training and experience, I know that the countries of Thailand, Cambodia, Mexico and the Dominican Republic are popular destinations for subjects who are travelling for the purpose of having sex with minors." (Id. at 4.) Plaintiff's Facebook profile also showed he had travelled to Germany, Switzerland, Costa Rica, and other countries. (FAC ¶ 25.)

3. Conclusion.

On the whole, these allegations are sufficient to show probable cause to issue the search warrant. See Smith, 640 F.3d at 937 ("The materiality element—a question for the court—requires the plaintiff to demonstrate that the magistrate would not have issued the warrant with false information redacted, or omitted information restored."); Hervey, 65 F.3d at 789 ("the plaintiff must establish that the remaining information in the affidavit is insufficient to establish probable cause"). Count One therefore fails to state a claim for relief.

Plaintiff has amended this claim multiple times, identifying new statements and omissions in the warrant affidavit as false. None of Plaintiff's amendments have undermined the Superior Court's finding of probable cause. The Court therefore concludes that granting Plaintiff leave to amend this claim further would be futile. See In re Western States, 715 F.3d at 738 (holding district courts should consider "futility of amendment" and "whether plaintiff has previously amended his complaint" in deciding whether to grant leave to amend); Powell v. Wells Fargo Home Mortg., No. 14-CV-04248-MEJ, 2017 WL 840346, at *5 (N.D. Cal. Mar. 3, 2017) (noting that "courts have broader discretion in denying motions for leave to amend after leave to amend has already been granted"). Count One should be dismissed with prejudice. C. Count Two: § 1983 Claim Against Detective Libby and Sergeant Espinoza for Seizure of Items Not Described in the Search Warrant.

In Count Two of the FAC, Plaintiff contends that Libby and Espinoza violated his rights under the Fourth and Fourteenth Amendment to be free of state-conducted searches and seizures without probable cause. Plaintiff contends Defendants violated these rights when, in executing search warrant no. VVSW 14-0378, they seized items not described in the warrant, specifically:

[A] log book which contained business contact information, a log book containing business financial records, a note book containing company research and development, journals, diaries, medical records, and approximately 18 photo albums containing photographs of adult

models, approximately 200 loose photographs depicting family members at theme parks and recreational places, scenic photographs, personal tax deduction worksheets and expense reports[.]

(FAC ¶¶ 37, 73.)

The FAC alleges that Defendants "had no reasonable suspicion that child pornography existed in the paper effects seized" and "lacked probable cause to seize the photographs by failing to find adult males involved in sexual activity with young children or teenage boys and/or girls as described in the warrant." (Id. ¶ 74; see also ¶ 38.) The FAC alleges that, "prior to the search, defendants Libby and Espinoza knew that [they] would be seizing items that were not described in [the] search warrant" because, during the search, "Libby called one of the officers aside and stated, 'Angel, did I tell you that he keeps journals of the girls?'" (FAC ¶¶ 39-40.)

The FAC further alleges that Libby made false statements in the search warrant return as to the items seized and where they were located, as follows:

[1] Libby falsely stated that one ZTE black in color cellphone was seized from a blue briefcase; [2] Libby falsely stated that one Lexar Platinum II 64 GB SD card was seized from a briefcase; [3] Libby omitted that approximately 200 loose photographs depicting family members at theme parks and recreational places, scenic photographs, personal tax deduction worksheets and expense reports were seized.

(FAC ¶ 41.)

1. Applicable Law.

A search warrant must describe with particularity the items to be seized. U.S. Const. amend. IV. The particularity requirement protects individuals from a "general, exploratory rummaging in [their] belongings." United States v. Lacy, 119 F.3d 742, 746 n. 7 (9th Cir. 1997) (quoting United States v. Rude, 88 F.3d 1538, 1551 (9th Cir. 1996)).

The particularity guaranty, however, "does not preclude use of generic language," such as all "papers" or "records" pertaining to a specified crime or enterprise. United States v. Hillyard, 677 F.2d 1336, 1339-40 (9th Cir. 1982). For example, a valid warrant may authorize officers to search for "items or articles of personal property tending to show identity of persons in ownership, dominion or control of said premises." United States v. Alexander, 761 F.2d 1294, 1301 (9th Cir. 1985); see also Lacy, 119 F.3d at 746-47 (upholding warrant authorizing seizure of entire computer system where there was probable cause to believe the subject had downloaded child pornography and no way to specify "what hardware and software had to be seized to retrieve the images accurately"); United States v. Washington, 797 F.2d 1461, 1472 (9th Cir. 1986) (upholding warrant authorizing seizure of records indicating "involvement and control of prostitution activity"). The list of items to be seized in a warrant should be read in a "common sense and realistic fashion," not in a "hypertechnical and narrow" fashion. United States v. Vesikuru, 314 F.3d 1116, 1123 (9th Cir. 2002).

2. Analysis.

a. Photo Albums and Loose Photos.

The warrant authorized the seizure of photographs depicting child pornography. (Dkt. 95-3 at 3.) Libby and Espinoza did not exceed the scope of the warrant by seizing 18 photo albums for later review to determine if any of the nude or semi-nude models appeared to be minors. Compare Alexander, 761 F.2d at 1301-1302 (holding officers acting on a warrant that authorized the seizure of items showing ownership of the premises did not exceed their authority by seizing empty beer cans in order to dust them for fingerprints later and thereby determine whether the cans were evidence of ownership).

The approximately 200 loose photographs likewise could have been validly seized for later review, to determine whether any of them contained child pornography. Moreover, to the extent the photos "depict[ed] [Plaintiff's] family members at theme parks and recreational places" (FAC ¶ 41), the photos would tend to establish that Plaintiff was in control of the searched premises, which was a motel room. (Dkt. 95-3 at 2 [warrant authorizing seizure of "personal property tending to establish the identity of the persons in control of the premises including but not limited to utility bills and receipts, rent receipts, canceled mail, envelopes, photographs and keys"]) (emphasis added). See United States v. Honore, 450 F.2d 31, 33 (9th Cir. 1971), cert. denied, 404 U.S. 1048 (1972) ("The words ... 'tending to establish the identity of the persons in control of the premises' sufficiently identify and limit the items to be seized.").

b. Log Books, Tax Deduction Worksheets, Expense Reports, Notebooks, Journals, and Diaries.

The warrant authorized the seizure of "documents tending to show ownership of the property to be seized," i.e., to show ownership of the photographs suspected of depicting child pornography. (Dkt. 95-3 at 3.) Plaintiff has alleged that these photographs were taken as part of his business. (FAC ¶ 18.) Log books containing his business contact information, business financial records, or "research and development" would have a tendency to show that Plaintiff was the owner of the photographs due to his business activities. These items, therefore, fall within the scope of the warrant.

Plaintiff alleges that he kept journals and diaries with information about the models he photographed. (FAC ¶ 25 [alleging he provided border officers at the Pennsylvania airport with "a journal that contained the models['] names, ages, and contact information], ¶ 50 [alleging "a journal was seized with the models['] names, ages, and contact information"], and ¶¶ 54-55 [alleging the "journal" was "exculpatory evidence" because it showed the models were not minors].) By these allegations, Plaintiff admits that his journals and diaries were relevant to determining the ownership of the seized photographs and whether the photographs depicted minors. Thus, these materials fall within the scope of the warrant.

c. Medical Records.

Plaintiff fails to describe the "medical records" allegedly seized. The search warrant return states: "[M]edical document to Drake Ward [was seized] from briefcase." (Dkt. 104-1 at 7.) The search warrant return indicates that other items, such as a cell phone and a 64-gigabyte storage card, were seized from a briefcase. (Id.) Because of this statement in the search warrant return, the Court previously concluded that the medical records "were documents tending to show ownership of the briefcase, and thus Plaintiff's ownership of the cell phone and storage card seized from the briefcase and any images they might contain." (Dkt. 131 at 21 [R&R issued on January 12, 2017].) The FAC now alleges that this statement in the search warrant return, describing the location of the medical records, is false. (FAC ¶ 41 ["Libby falsely stated that one ZTE black in color cellphone was seized from a blue briefcase" and "falsely stated that one Lexar Platinum II 64 GB SD card was seized from a briefcase"].)

Even assuming these statements are false, the medical records would still be within the scope of the warrant. The warrant authorized BPD officers to seize "Personal property tending to establish the identity of the persons in control of the premises [a motel room] including but not limited to utility bills and receipts, rent receipts, canceled mail, envelopes, photographs and keys." (Dkt. 95-3 at 2.) Plaintiff's medical records would tend to establish that he was in control of the motel room by virtue of their presence in the motel room.

The Court recognizes that not everything in the motel room belonging to Plaintiff could be seized to establish Plaintiff's control over the motel room. Such a broad interpretation of the warrant would not provide a meaningful limit on the search. However, Plaintiff's medical records would specifically identify Plaintiff by name, making them particularly useful for establishing Plaintiff's control over the hotel room, and making them analogous to other items named in the warrant, such as utility bills and cancelled mail.

3. Conclusion.

Because Plaintiff fails to identify any seized property that was outside the scope of the warrant, Count Two fails to state a claim for relief. Given the multiple opportunities Plaintiff has had to plead this claim, the Court concludes that granting Plaintiff further leave to amend Count Two would be futile. D. Count Three: § 1983 Claim Against Detective Libby and Deputy DA Dowd for False Statements in Arrest Warrant Affidavit.

Count Three of the FAC alleges that Libby and Dowd improperly arrested Plaintiff under the Fourth Amendment, in that they "knowingly and intentionally with reckless disregard for the truth, made false statements and concealed material facts in police report (B.P.D. #14-0980)," which was made part of the application for an arrest warrant for Plaintiff. (FAC ¶¶ 49, 77.) Plaintiff alleges that the false statements and omissions were material to the finding of probable cause in the arrest warrant affidavit. (FAC ¶ 77.)

1. Deputy DA Dowd is Immune from Claims Based on the Alleged False Statements and Omissions in the Arrest Warrant Application.

a. Applicable Law.

The law is well established that prosecutors are entitled to absolute immunity from § 1983 claims for claims arising out of their prosecutorial activities. See Imbler v. Pachtman, 424 U.S. 409, 427 (1976). The immunity extends to all "acts undertaken by a prosecutor in preparing for the initiation of judicial proceedings or for trial, and which occur in the course of his role as an advocate for the State." Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). In other words, absolute immunity applies to all conduct that is "intimately associated with the judicial phase of the criminal process." Imbler, 424 U.S. at 430.

A prosecutor is not entitled to absolute immunity, however, if he makes allegedly false statements to support the issuance of an arrest warrant, because in that context, the prosecutor seeking a warrant functions as a complaining witness rather than an advocate. Kalina v. Fletcher, 522 U.S. 118, 130-31 (1997). The Supreme Court has held that "absolute immunity applies when a prosecutor prepares to initiate a judicial proceeding" and "appears in court to present evidence in support of a search warrant application," but "does not apply when a prosecutor gives advice to police during a criminal investigation, ... when the prosecutor makes statements to the press, ... or when a prosecutor acts as a complaining witness in support of a warrant application." Van de Kamp v. Goldstein, 555 U.S. 335, 343 (2009) (citations omitted).

b. Analysis.

Plaintiff alleges that Deputy DA Dowd and Detective Libby "in conjunction with each other, ... wrote and submitted to the San Bernardino County justice system a fraudulent police report (BPD #14-0980) as part of an arrest warrant affidavit...." (FAC ¶ 49; see also ¶ 77.) The police report in question states that Libby and Dowd reviewed the photographs seized from Plaintiff's motel room together. (Dkt. 104-1 at 18.) Under "disposition," the police report also states: "Forward to Supervising Deputy District Attorney Michael Dowd for review." (Id. at 19.) However, both the police report and the arrest warrant affidavit are signed by Libby, not Dowd. (Id. at 3-6, 18-19; Dkt. 95-6.)

Based on these allegations, Dowd is entitled to absolute immunity as to Count Three. Libby, not Dowd, certified that the statements in the arrest warrant affidavit and attached police reports were true. See Kalina, 522 U.S. at 129 (holding that a prosecutor's "activities in connection with the preparation and filing of ... the motion for an arrest warrant ... are protected by absolute immunity ... except for her act in personally attesting to the truth of the averments in the certification"); see also KRL v. Moore, 384 F.3d 1105, 1110-11 (9th Cir. 2004) ("A prosecutor's functions that are protected by absolute immunity include ... and preparing and filing an arrest warrant. However, the functions of an advocate do not include advising police officers whether probable cause exists during their pretrial investigation ... or attesting to the facts that support an arrest warrant.").

Even if Dowd is not entitled to prosecutorial immunity, Count Three fails to state a claim against either Dowd or Libby, as discussed further below.

2. Count Three Fails to State a Claim Against Either Detective Libby or Deputy DA Dowd.

To plead judicial deception sufficient to show that an arrest pursuant to a warrant lacked probable cause, a plaintiff must: "(1) specifically point out the portion of the warrant affidavit that is claimed to be false, (2) allege facts tending to show that the officer was aware or should have been aware of the falsity of those statements, and (3) allege that those false statements were necessary to the magistrate's finding of probable cause." Anderson v. City of Pasadena, 78 F.3d 591, at *3 (9th Cir. Mar. 12, 1996) (table) (citing Franks, 438 U.S. at 155-56).

The FAC alleges that the police report and arrest warrant omitted or misstated the following facts:

(1) omitted Plaintiff's statements to Libby that "all the models in Plaintiff's photographs were over the age of eighteen" and his offers to provide IDs for some of them, as well as show Libby their names, ages, and phone numbers that "were recorded in a journal";

(2) "omitted that during the search a journal was seized with the models names, ages, and contact information";

(3) "falsely stated that [Libby] had provided Plaintiff with a receipt for his property";

(4) "omitted that Plaintiff's laptop contained many adult ID's [sic] and model release forms which defendants could not rule out were associated with the two individuals defendants alleged were minors engaged in a sex act";

(5) "falsely identified images of [seven] adult models from Plaintiff's iPhone" as either "14 to 17 years old" or "12 to 17 years old,"

while omitting that Plaintiff had "other photos of those models celebrating in bars with alcoholic beverages" and "photos with their names and ages clearly posted" on stickers, and also omitting that three of the images "were downloaded from an adult website";

(6) "falsely stated that they located a photo of a black juvenile (approximately 4 to 6 years old) wearing blue/gray pajamas and holding the leg of an unknown (not visible) adult subject";

(7) "falsely identified an image of two adult models engaged in a sex act as 9 to 12 years old omitting that the models faces were not visible and they were unable to be identified as underage."

(FAC at ¶ 50.)

Plaintiff also incorporates into Count Three the same allegations concerning false statements and omissions made in the search warrant affidavit. For the reasons discussed above under Count One, these statements are not material and do not undermine the finding of probable cause.

These allegations are more specific than the allegations in the prior Third Amended Complaint. However, like the Third Amended Complaint, the FAC fails to either plead facts plausibly suggesting that any of these statements or omissions were recklessly or deliberately false, or fails to show that they were material to the finding of probable cause. The alleged false statements and omissions fall into three general categories: (a) omission of Plaintiff's offers to provide documentation of the models' ages, i.e. statements (1), (2), and (4) above; (b) misidentification of adult models as minors, i.e., statements (5) through (7) above; and (c) false statement that Plaintiff was provided a receipt for his seized property, i.e., statement (3) above.

a. Omission of Plaintiff's Offers to Provide Documentation of the Models' Ages.

The warrant affidavit says that Plaintiff told officers that while he travels to foreign countries for sex, "all of the women he has sex with are over the age of 18." (Dkt. 104-1 at 5.) It also says that Plaintiff "pointed out that he put stickers on the pictures with the women's names and ages." (Id.) Thus, the warrant application did not fail to mention that Plaintiff asserted the women were not minors and that he had written down their ages. In light of the inclusion of these statements, the omission of Plaintiff's further statements that the models were older than 18 and his offer to provide copies of the models' identification cards were immaterial to the determination that there was probable cause to arrest Plaintiff.

b. Misidentification of the Models as Minors.

Nothing in the FAC's factual allegations supports the inference that Detective Libby deliberately or recklessly misidentified adult models as minors. The arrest warrant application admits Libby does not know the models' true ages and that he estimated their ages based on their appearance in the photographs. He admits that many of the females appear "young" but of an "undetermined age." (Dkt. 104-1 at 18.) In listing the images "of interest" to the investigation, Libby used the word "approximately" to qualify all of his estimates of the models' ages. (Id. at 18-19.) Most of the estimates that Libby gave placed the models in the age range of "approximately 14-17 years old," thereby admitting that they could be as old as 18 if his estimates were off by even one year. (Id.)

In the initial R&R recommending dismissal of the Third Amended Complaint, the Court noted that Plaintiff had failed to describe or attach any of the images discussed in the arrest warrant affidavit, thereby failing to supply any facts concerning the appearance of the models that would support an inference that Defendant Libby deliberately or recklessly identified them as underage. (Dkt. 120 at 19.) Plaintiff submitted some of the photos described in the police report with his objections to that R&R. (Dkt. 123-1, 123-2, 123-3, 123-4.) These photos do not indicate that Libby's identification was false or reckless, particularly given the repeated indication in the arrest warrant application that the ages were estimates based on the girls' appearance.

c. Statement that Libby Gave Plaintiff a Receipt for the Seized Property.

Whether or not Libby provided Plaintiff with a receipt was immaterial to the Superior Court's determination of probable cause.

3. Conclusion.

Count Three fails to state a claim against either Detective Libby or Deputy DA Dowd. Plaintiff fails to allege the existence of any material false statements or omissions in the arrest warrant affidavit. Plaintiff also fails to allege facts indicating that Dowd was a complaining witness for the arrest warrant application or otherwise plead facts that would overcome prosecutorial immunity. Given the multiple opportunities Plaintiff has had to plead this claim, the Court concludes that granting Plaintiff further leave to amend would be futile. E. Count Four: § 1983 Claim against Deputy DA Dowd for Violation of Plaintiff's Confrontation Clause Rights.

Count Four of the FAC alleges that Dowd falsely accused Plaintiff of a criminal offense and then "[r]efused to attend Plaintiff's criminal court hearing to be confronted and cross-examined by Plaintiff even though Dowd had been subpoenaed by the Plaintiff to attend his hearing on October 20, 2015." (FAC ¶ 83.) Plaintiff admits, however, that the Superior Court quashed the subpoena. (Id. at ¶ 53.)

No facts in the FAC plausibly suggest that Dowd was a complaining witness, i.e., Plaintiff's "accuser," such that the Sixth Amendment's right to confrontation would apply. See U.S. Const. amend. VI. A prosecutor does not violate the constitutional rights of the accused by refusing to be cross-examined concerning pending charges, a result that the Superior Court necessarily recognized when it quashed Plaintiff's subpoena seeking to compel such testimony from Dowd.

Under the Rooker-Feldman doctrine, this Court lacks jurisdiction to review the decision of the Superior Court to quash the subpoenas. See Noel v. Hall, 341 F. 3d 1148, 1165 (9th Cir. 2003) (holding that Rooker-Feldman doctrine bars federal jurisdiction "when a plaintiff's suit in federal district court is at least in part a forbidden de facto appeal of a state court judgment, and an issue in that federal suit is 'inextricably inter-twined' with an issue resolved by the state court judicial decision from which the forbidden de facto appeal is taken").

Count Four therefore fails to state a claim. Given the multiple opportunities Plaintiff has had to plead this claim, the Court finds that granting Plaintiff further leave to amend would be futile. F. Count Five: § 1983 Claim against Detective Libby and Deputy DA Dowd for Violation of Plaintiff's Due Process Rights.

Count Five of the FAC alleges that Libby and Dowd violated Plaintiff's due process rights because they "withheld exculpatory evidence from the San Bernardino County justice system resulting in Plaintiff being arrested and criminally charged without probable cause...." (FAC ¶ 86.) Count Five also alleges that Libby "fail[ed] to provide Plaintiff all his due process protections set forth in [California] Penal Code ["PC"] 1054.5...." (Id.)

Additionally, Count Five alleges that Dowd "fail[ed] and refus[ed] to submit himself for cross-examination after Plaintiff subpoenaed him to attend his criminal hearing." (FAC ¶ 86.) This allegation is discussed above under Count Four.

1. Applicable Law.

"Brady [v. Maryland, 373 U.S. 83, 87 (1963)] requires both prosecutors and police investigators to disclose exculpatory evidence to criminal defendants." Smith v. Almada, 640 F.3d 931, 939 (9th Cir. 2011); see also Tennison v. City & Cty. of San Francisco, 570 F.3d 1078, 1087 (9th Cir. 2008) (allowing § 1983 Brady claim against law enforcement officers). "To state a [§ 1983] claim under Brady, the plaintiff must allege that (1) the withheld evidence was favorable either because it was exculpatory or could be used to impeach, (2) the evidence was suppressed by the government, and (3) the nondisclosure prejudiced the plaintiff." Smith, 640 F.3d at 939. "As to the prejudice prong, the Supreme Court has stated that 'strictly speaking, there is never a real 'Brady violation' unless the nondisclosure was so serious that there is a reasonable probability that the suppressed evidence would have produced a different verdict.'" Smith, 640 F.3d at 939 (quoting Strickler v. Greene, 527 U.S. 263, 281-82 (1999)).

PC § 1054.5 governs the procedure for discovery in California criminal cases and provides in relevant part: "Before a party may seek court enforcement of any of the disclosures required by this chapter, the party shall make an informal request of opposing counsel for the desired materials and information. If within 15 days the opposing counsel fails to provide the materials and information requested, the party may seek a court order." PC § 1054.5(b). It also references PC § 1054.1, which requires the prosecutor to disclose, inter alia, "any exculpatory evidence" in the prosecutor's possession or that the prosecutor knows is in the possession of investigating agencies. PC § 1054.1(e).

2. Deputy DA Dowd is Immune from § 1983 Liability for the Actions Described in Count Five.

Prosecutorial immunity bars any § 1983 liability based on actions Dowd took within the scope of his prosecutorial duties. Imbler, 424 U.S. at 409. Thus, Dowd is immune from claims based on Plaintiff's allegations that he prosecuted charges against Plaintiff without probable cause, refused to return seized property, refused to disclose exculpatory evidence, and failed to comply with California Penal Code provisions governing criminal discovery. See Hartman v. Moore, 547 U.S. 250, 261-62, (2006) ("A Bivens (or § 1983) action for retaliatory prosecution will not be brought against the prosecutor, who is absolutely immune from liability for the decision to prosecute."); Broam v. Bogan, 320 F. 3d 1023, 1030 (9th Cir. 2003) ("A prosecutor's decision not to preserve or turn over exculpatory material before trial, during trial, or after conviction is a violation of due process under Brady.... It is, nonetheless, an exercise of the prosecutorial function and entitles the prosecutor to absolute immunity from a civil suit for damages.").

3. Count Five Fails to State a Claim against Detective Libby.

Count Five alleges that Libby withheld exculpatory evidence from Plaintiff in violation of due process and PC § 1054.5. (FAC ¶ 86.) The evidence that Plaintiff alleges Libby withheld were journals in which Plaintiff wrote names, ages, and contact information of the models in the photos claimed to be child pornography. (See FAC ¶ 55; see also Dkt. 142-1 at 19 [Plaintiff's opposition to the motion to dismiss, citing "Libby's refusal to hand over a journal and diaries, which resulted in the delay of Plaintiff's dismissal by the prosecutor"]).

a. Plaintiff cannot state a claim under Brady because he cannot show prejudice.

Libby argues that Plaintiff cannot state a claim against him under Brady because, among other reasons, Plaintiff "was never convicted[.]" (Dkt. 139-1 at 22.)

A majority of federal circuit courts have held that a conviction is required to establish prejudice for a § 1983 claim based on a Brady violation. See, e.g., Jean v. Collins, 221 F.3d 656, 663 (4th Cir. 2000), cert. denied, 531 U.S. 1076 (2001); Morgan v. Gertz, 166 F.3d 1307, 1310 (10th Cir. 1999); Flores v. Satz, 137 F.3d 1275, 1278 (11th Cir. 1998); McCune v. City of Grand Rapids, 842 F.2d 903, 907 (6th Cir. 1988). The Ninth Circuit has indicated agreement with this position, although not in a published opinion. See Puccetti v. Spencer, 476 F. App'x 658, 660 (9th Cir. 2011) ("[B]ecause plaintiffs' criminal charges were dismissed, the plaintiffs cannot show that any suppressed evidence could have produced a different result at trial. ... Our sister courts have adopted identical reasoning in denying Brady claims when the plaintiff was never convicted."); Smith v. Alamada, 640 F.3d 931, 941-45 (9th Cir. 2011) (special concurrence finding, in the alternative, that plaintiff could not bring a Brady claim because there had been no conviction, and discussing case law from other circuits so holding).

In Alamada, a split panel of the Ninth Circuit initially agreed that a plaintiff could not bring a Brady claim unless there had been a conviction, but that opinion was withdrawn and superseded. In the superseding opinion, the majority opinion declined to reach the issue, Judge Gwin wrote the special concurrence cited above, and Judge Nelson wrote a dissent arguing a conviction is not necessary. See Smith v. Alamada, 623 F.3d 1078 (9th Cir. 2010), withdrawn and superseded by 640 F.3d 931 (9th Cir. 2011). The unpublished decision in Puccetti followed several months later.

Following these Ninth Circuit decisions and the other federal circuits that have examined the issue, district courts in this circuit generally hold that a conviction is necessary to establish prejudice for a Brady claim under § 1983. See, e.g., Bassett v. City of Burbank, No. 14-01348-SVW-CW, 2014 WL 12573844, at *2 (C.D. Cal. Sept. 11, 2014) (dismissing Brady claim where the criminal charges were dropped); Dinius v. Perdock, No. 10-3498, 2012 WL 1925666, at *6 (N.D. Cal. May 24, 2012) (dismissing Brady claim where plaintiff was acquitted in the underlying criminal matter); Wagner v. Finneran, No. 07-1557-AG-RNB, 2008 WL 2156723, at *4 (C.D. Cal. May 22, 2008) (dismissing Brady claim where criminal charges were dropped). But see Gutierrez v. Solano, 862 F. Supp. 2d 1037, 1042-43 (C.D. Cal. 2012) (agreeing with Alamada dissent and declining to dismiss Brady claim).

After considering these authorities, the Court finds that Plaintiff cannot state a § 1983 claim against Detective Libby under Brady because Plaintiff admits that, "On March 8, 2016, Plaintiff's criminal case was dismissed by the district attorney." (FAC ¶ 56.) Because of this dismissal, Plaintiff cannot demonstrate prejudice, i.e., a "reasonable probability that the suppressed evidence would have produced a different verdict." Smith, 640 F.3d at 939 (quoting Strickler, 527 U.S. at 281-82).

b. Plaintiff cannot state a § 1983 claim based on a violation of PC § 1054.5, because the only federal right implicated is Brady.

Plaintiff alleges that, in addition to violating Plaintiff's due process rights under Brady, Detective Libby violated California Penal Code § 1054.5 by failing "to provide and disclose all exculpatory evidence known to him within 15 days." (FAC ¶ 55.) "To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States...." West v. Atkins, 487 U.S. 42, 48 (1988) (emphasis added). "As a general rule, a violation of state law does not lead to liability under § 1983." Campbell v. Burt, 141 F.3d 927, 930 (9th Cir. 1998) (emphasis added). Although Plaintiff alleges that Libby's alleged violation of PC § 1054.5 violated Plaintiff's federal constitutional right to due process (FAC ¶ 86), this is essentially a repetition of Plaintiff's Brady claim. Both claims allege that Libby failed to turn over exculpatory evidence to the prosecution. As discussed above, Plaintiff cannot state a claim under Brady. Any separate, independent duty that Libby owed Plaintiff under PC § 1054.5 is a matter of state law and cannot form the basis of a federal claim under § 1983.

4. Conclusion.

Count Five therefore fails to state a claim against either Deputy DA Dowd or Detective Libby based on the withholding of exculpatory evidence. The Court finds that granting further leave to amend would be futile because the lack of prejudice to Plaintiff under Brady cannot be cured by further amendment, as the state criminal proceedings against Plaintiff have ended. G. Count Six: § 1985(2) Conspiracy Claim against Detective Libby and Deputy DA Dowd.

Count Six of the FAC alleges that Libby and Dowd violated 42 U.S.C. § 1985(2) because they (1) "engaged in a conspiracy to deter the Plaintiff by means of intimidation from testifying freely and fully against the defendants in his federal lawsuit filed against them" and (2) "acted and conspired to retaliate against plaintiff for seeking legal redress for violations of his civil rights in the courts of the United States...." (FAC at ¶¶ 89-90) (emphasis added). Plaintiff alleges Libby and Dowd did so by taking the actions described in earlier counts of the complaint, namely: filing a false police report resulting in Plaintiff's unlawful arrest (Count Three), refusing to testify at a pre-trial hearing (Count Four), and withholding exculpatory evidence (Count Five). (FAC at ¶¶ 91-93.) Plaintiff alleges that, as a result of these actions, "Plaintiff suffered from loss of employment, loss of liberty, loss and use of his property, mental and emotional distress, embarrassment and humiliation, economic losses, and other losses and damages to be decided at trial." (FAC ¶ 95.)

In prior iterations of Plaintiff's complaint, Plaintiff alleged only that Libby and Dowd conspired to deter him from pursuing this federal law suit under § 1985(2). (See Dkt. 92 at ¶¶ 87-92 [Third Amended Complaint].) The FAC alleges that Libby and Dowd also conspired to retaliate against him for filing this lawsuit.

1. Legal Standard.

"Section 1985(2) contains two clauses that give rise to separate causes of action." Portman v. Cty. of Santa Clara, 995 F.2d 898, 908 (9th Cir. 1993). The first clause of § 1985(2) concerns "conspiracies to interfere with justice in the federal courts[.]" Bretz v. Kelman, 773 F.2d 1026, 1028 (9th Cir. 1985). The second clause of § 1985(2) concerns access to state courts and requires an allegation of "class-based animus[.]" Portman, 995 F.2d at 909. Because Plaintiff alleges interference with the instant federal action and has not alleged that he is a member of a protected class, the Court construes Count Six of the FAC as alleging a violation of the first clause of § 1985(2).

The first clause of § 1985(2) provides in relevant part as follows: If two or more persons in any State or Territory conspire [a] to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or [b] to injure such party or witness in his person or property on account of his having so attended or testified ... the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.

42 U.S.C. § 1985(2)-(3) (emphasis added).

"To make out a claim based on retaliation under the first clause of section 1985(2), a plaintiff must prove four elements: (1) a conspiracy by the defendants; (2) to injure a party or witness in his or her person or property; (3) because he or she attended federal court or testified in any matter pending in federal court; (4) resulting in injury or damages to the plaintiff." Portman, 995 F.2d at 909 (citing Chahal v. Paine Webber, Inc., 725 F.2d 20, 23 (2d Cir. 1984)). The elements of a section 1985(2) claim of witness intimidation are the same, except that the defendants must have conspired "to deter a witness by force, intimidation or threat from attending court or testifying freely in any pending matter," rather than punishing the party or witness after so participating. Chahal, 725 F.2d at 23.

"A claimant need not suffer monetary damages to have an injury cognizable under section 1985(2). ... Rather, a claimant must show that the conspiracy hampered the claimant's ability to present an effective case in federal court." Rutledge v. Arizona Bd. of Regents, 859 F.2d 732, 735 (9th Cir. 1988). Cf. Blankenship v. McDonald, 176 F.3d 1192 (9th Cir. 1999) (holding that a witness who is not a party to the litigation cannot bring a witness intimidation claim under § 1985(2) because injury requires a showing that "the litigant was hampered in being able to present an effective case"). "Even if Plaintiff was intimidated, he must show how such intimidation had an effect on his ability to present his case in federal court." Wichansky v. Zowine, No. 13-01208, 2014 WL 5594086, at *9 (D. Ariz. Nov. 4, 2014).

2. Analysis.

Count Six fails to state a claim under § 1985(2) for either witness intimidation or retaliation for at least three reasons. First, Plaintiff fails to allege any acts of "force, intimidation, or threat." 42 U.S.C. § 1985(2). Here (as discussed above under Counts Three, Four, and Five), Deputy DA Dowd enjoys prosecutorial immunity for the actions Plaintiff alleges were threatening or intimidating, such as the decision to bring criminal charges against Plaintiff. Cf. Reddy v. MedQuist, Inc., 12-01324, 2013 WL 3828348, *6 (N.D. Cal. July 19, 2013) (finding that the litigation privilege barred plaintiff's § 1985(2) claim based on defendants' motion to declare plaintiff a vexatious litigant). Similarly, as to Detective Libby, Plaintiff fails to allege that Libby took any actions that violated Plaintiff's constitutional rights (as discussed above under Counts Three and Five).

Second, Plaintiff does not allege facts showing injury, i.e., that his ability to present an effective case to this Court was hampered in any way. Even after the Defendants' alleged actions, Plaintiff has continued to litigation this action vigorously. See, e.g., Lauter v. Anoufrieva, 642 F. Supp. 2d 1060, 1088 (C.D. Cal. 2009) (finding plaintiff did not allege facts demonstrating injury under § 1985(2) because, although plaintiff alleged "that the conspiracy delayed presentation of his federal claims, thereby causing him economic loss," even after the threat or intimidation occurred, "plaintiff actively pursued the lawsuit"); Kinnard v. Brisson, No. C-03-3127, 2004 WL 1465693, at *4 (N.D. Cal. June 21, 2004) (finding the plaintiff could not show damages "because he has not alleged that he abandoned any of the claims of his lawsuit as a result of the alleged conspiracy" but instead had "continued to litigate the action vigorously"). Although the filing of the state criminal charges did cause this federal action to be stayed for approximately seven months (Dkt. 61, 67), this alone is insufficient to allege injury. See, e.g., Rutledge, 859 F.2d at 735 (finding no injury under § 1985(2) and noting that "the district court stayed the federal action until the parallel state action was final and all avenues of state appellate review were exhausted").

Third, Plaintiff may not be able to state a claim because there have been no proceedings that he could "attend[]" or at which he could "testify[.]" 42 U.S.C. § 1985(2). Plaintiff cites Wright v. No Skiter, Inc., 774 F.2d 422 (10th Cir. 1985) for the proposition that "an individual is deemed to have 'attended' a court of the United States [for purposes of § 1985(2)] from the moment that the person files a complaint." Id. at 425. However, "there is a split in the circuits regarding the proper interpretation of the term 'attend[] or testif[y]" in § 1985(2). Portman, 995 F.2d at 910. Unlike the Tenth Circuit, the Fifth Circuit has declined to apply § 1985(2) to conspiracies intending to deter a party from filing a federal lawsuit, as opposed to physically attending or testifying in such an action. See Kimble v. D.J. McDuffy, Inc., 648 F.2d 340, 347-48 (5th Cir.) (en banc), cert denied, 454 U.S. 1110 (1981); see also Lauter v. Anoufrieva, 642 F. Supp. 2d 1060, 1088 n.37 (C.D. Cal. 2009).

In Portman, the Ninth Circuit noted the circuit split but declined to address the issue. 995 F.2d at 910. In a subsequent unpublished opinion, the Ninth Circuit affirmed summary judgment for the defendants on a § 1985(2) retaliation claim, reasoning: "Wright does not claim that the defendants conspired to deter him from attending or testifying in federal court; rather he claims to have been retaliated against for filing papers with the court. This is not the type of conduct § 1985(2) was designed to address." Wright v. Brown, 67 F.3d 311, at *4 (9th Cir. 1995) (table) (citing Kimble). If § 1985(2) is interpreted to require Defendants to have acted to deter Plaintiff from or retaliate against him for attending or testifying at an actual proceeding, then Plaintiff cannot state a claim here.

3. Conclusion.

For all of the above reasons, Count Six fails to state a claim for relief. Despite multiple prior amendments, Plaintiff has failed to allege that Deputy DA Dowd and Detective Libby acted in a way that constituted "force, intimidation, or threat," and Plaintiff has failed to allege that his ability to prosecute this action was materially affected. Additionally, to the extent Plaintiff's claim fails because there has been no hearing which he could attend or at which he could testify, this defect could not be cured by further amendment. The Court therefore finds that granting further leave to amend would be futile. H. Counts Seven and Eight: § 1983 Claims against the City of Barstow and Chief Ramirez for Violation of Plaintiff's First Amendment Rights and for All of the Civil Rights Violations Alleged in Prior Counts.

Count Seven of the FAC alleges that the City of Barstow and Chief Ramirez violated Plaintiff's right under the First Amendment to freedom of expression. (FAC ¶¶ 96-98.) Plaintiff alleges that Defendants engaged in "malicious prosecution" to coerce him "to abandon his websites and photography of models posing nude, semi-nude, and in lingerie as an artistic expression ...." (Id. at ¶ 97.) Count Seven does not allege any additional coercive acts; Plaintiff appears to be relying on the alleged actions of Detective Libby, Sergeant Espinoza, and Deputy DA Dowd, as described in the prior counts. Count Eight of the FAC alleges that the City of Barstow and Chief Ramirez "are directly liable and equally responsible for the acts of" Detective Libby and Sergeant Espinoza because they "refus[ed] to terminate policies or customs, which they knew or reasonably should have known, would cause the deprivation of the Plaintiff[']s constitutional rights." (FAC at ¶ 100.)

Plaintiff sues Chief Ramirez in both his individual and official capacities. (FAC ¶ 13.) Official capacity claims for damages against municipal employees are treated as claims against the municipality under § 1983. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978).

Both Counts Seven and Eight attempt to hold the City of Barstow and Chief Ramirez vicariously liable for the actions of the other Defendants. As explained further below, the FAC fails to allege sufficient facts to establish such liability under § 1983.

1. Claims against Chief Ramirez in His Individual Capacity.

Plaintiff alleges that his "constitutional injuries were caused by the direct involvement and knowledge of" Chief Ramirez, who "was directly involved in, and/or approved, condoned, and ratified, the conduct of defendants Libby and Espinoza...." (Id. at ¶ 60.) Plaintiff alleges that Chief Ramirez "had a personal involvement in this case and reasonably knew that" Detective Libby's search warrant application "did not report the facts ... fully and truthfully." (Id. at ¶ 63.) Plaintiff also alleges that his constitutional injuries resulted from the Barstow Police Department's failure to train its detectives in the preparation of warrant applications and police reports. (Id. at ¶¶ 61-62.)

a. Supervisory Liability.

"Although there is no pure respondeat superior liability under § 1983, a supervisor is liable for the acts of his subordinates 'if the supervisor participated in or directed the violations, or knew of the violations [of subordinates] and failed to act to prevent them.'" Preschooler II v. Clark County Sch. Bd. of Trs., 479 F.3d 1175, 1182 (9th Cir. 2007) (quoting Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)). Supervisory liability under section 1983 attaches "if there exists either (1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient causal connection between the supervisor's wrongful conduct and the constitutional violation." Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011) (quoting Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989)). "The requisite causal connection may be established when an official sets in motion a series of acts by others which the actor knows or reasonably should know would cause others to inflict constitutional harms." Preschooler II, 479 F.3d at 1183.

Plaintiff conclusorily alleges that Chief Ramirez was "directly involved" with the actions of Defendants Libby and Espinoza, but he fails to allege any facts showing such involvement. He does not, for example, allege that Chief Ramirez was present for the search of his motel room or his arrest. Plaintiff conclusorily alleges that Chief Ramirez "reasonably knew" that the search warrant affidavit "did not report the facts ... fully and truthfully," but the Court has already determined, as discussed above, that Plaintiff cannot identify a single material misrepresentation or omission in the search warrant affidavit. Thus, Plaintiff fails to allege facts showing that Chief Ramirez personally participated in any alleged civil rights violations, or knew of violations by Defendants Libby or Espinoza but failed to act to prevent them.

In his opposition to the motions to dismiss, Plaintiff argues that Chief Ramirez "became a party to this action after the first occurrence [the issuance of the search warrant] and thereby became aware of the alleged unconstitutional policy and custom." (Dkt. 142-1 at 27, citing FAC ¶ 47.) --------

b. Training Liability.

A supervisor can also be held personally liable for failing to train subordinate employees if the failure to train "amounts to deliberate indifference to the rights of persons" with whom those employees are likely to interact. City of Canton v. Harris, 489 U.S. 378, 388 (1989). For § 1983 liability to attach, however, the training deficiency must be "closely related to the ultimate injury." Id. at 391. In other words, the plaintiff must show that his or her constitutional "injury would have been avoided" had the public employee been properly trained. Oviatt v. Pearce, 954 F.2d 1470, 1478 (9th Cir. 1992).

For example, in Flores v. County of Los Angeles, 758 F.3d 1154 (9th Cir. 2014), plaintiff alleged that deputy sheriffs sexually assaulted her during the course of her arrest. She attempted to sue the County based on allegations that "proper training and procedures were not in place ... to protect women ...." Id. at 1159. The Ninth Circuit noted that she did not allege a pattern of assault before hers, and that "a pattern of similar constitutional violations by untrained employees is ordinarily necessary to demonstrate deliberate indifference for purposes of failure to train." Id. The Ninth Circuit also reasoned, "Given that the penal code prohibits sexual battery, it is not plausible that inclusion in the [training] Manual of the language that Flores proposes would have prevented the assault on Flores. If the threat of prison time does not sufficiently deter sexual assault, it is not plausible to assume that a specific instruction not to commit sexual assault will provide such deterrence...." Id. at 1160. (footnote omitted). The Ninth Circuit upheld the dismissal of plaintiff's claim against the County at the pleading stage, concluding that plaintiff's "claim for failure to train fails because it is not plausible on its face." Id. (citing Iqbal, 556 U.S. at 678).

Here, Plaintiff's allegations similarly fail to state a § 1983 failure-to-train claim against Chief Ramirez. Like in Flores, Plaintiff fails to allege any facts suggesting a pattern of similar constitutional violations by untrained employees. Also like in Flores, if the criminal consequences of submitting a false affidavit under penalty of perjury are insufficient to deter an officer from doing so, then it is implausible that "truthfulness" training would have deterred such misconduct. In any event, Plaintiff has failed to identify any material false statements or misleading omissions in the relevant supporting affidavits.

2. Claims against the City of Barstow and Chief Ramirez in His Official Capacity.

a. Applicable Law.

Section 1983 suits against local governments alleging constitutional rights violations by government officials cannot rely solely on respondeat superior liability. Whitaker v. Garcetti, 486 F.3d 572, 581 (9th Cir. 2007); Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978). Instead, plaintiffs must establish that "the local government 'had a deliberate policy, custom, or practice that was the 'moving force' behind the constitutional violation [they] suffered.'" Whitaker, 486 F.3d at 581 (quoting Galen v. City of L.A., 477 F.3d 652, 667 (9th Cir. 2007)). Official capacity claims for damages against municipal employees are treated as claims against the municipality under section 1983. Monell, 436 U.S. at 690. Thus, official capacity claims must be supported with allegations identifying a "policy, custom, or practice" of the agency for which the defendant sued in his/her official capacity works. "Consistent with the commonly understood meaning of custom, proof of random acts or isolated events are insufficient to establish custom." Thompson v. Los Angeles, 885 F.2d 1439, 1443-1444 (9th Cir. 1989), overruled on other grounds in Bull v. City & Cty. of San Francisco, 595 F.3d 964, 981 (9th Cir. 2010).

In Starr v. Baca, 652 F.3d 1202 (9th Cir. 2011), the Ninth Circuit considered whether after Twombly and Iqbal, it is sufficient for § 1983 plaintiffs to allege that an unconstitutional policy, custom or practice exists, or whether they need to allege more, i.e., facts showing the plausible existence of the challenged policy, custom or practice. The Ninth Circuit concluded that something more than a bare averment of the existence of a policy, custom or practice is needed, as follows:

First, to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively. Second, the factual allegations that are taken as true must plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.

Id. at 1216. This standard has since been applied to dismiss section 1983 claims at the pleading stage where insufficient facts are alleged to provide meaningful notice of the challenged policy, custom or practice, or even to show plausibly that the challenged policy, custom or practice existed. See, e.g., Dougherty v. City of Covina, 654 F.3d 892, 900-01 (9th Cir. 2011) (dismissing claims of plaintiff who sued over the execution of a search warrant later determined to have issued without probable cause, because plaintiff's bare allegations that a city policy or custom caused his injuries, without explaining the nature of the policy or custom, failed to state a claim).

b. Analysis.

Plaintiff alleges: "Defendant City of Barstow's ... liability arises out of the supervisory acts of its Police Chief [Ramirez] as the city's final policy maker for the City of Barstow Police Department." (FAC ¶ 59.) Plaintiff also alleges that the City of Barstow has "an official policy and custom" of employees "routinely and intentionally prepar[ing] and submit[ing] official reports that do not report facts, relevant to the finding of probable cause, fully and truthfully...." (Id. at ¶ 65.)

Under the above-listed authorities, these allegations are insufficient to state a § 1983 claim against the City of Barstow. They are bare averments, devoid of supporting facts. Indeed, it is inconsistent for Plaintiff to allege that the BPD officers were motivated by a personal desire to suppress pornography, while at the same time acting pursuant to a municipal policy. Having failed to plead facts plausibly suggesting the existence of a municipal custom, policy or practice that caused his alleged constitutional injuries, Plaintiff fails to state a claim for relief against the City of Barstow. Again, having had multiple opportunities to amend his Complaint, the Court concludes that granting Plaintiff further leave to amend against the City would be futile.

3. Plaintiff Fails to State a Claim for First Amendment Retaliation.

The FAC's heading for Count Seven states that the claim is brought against the City of Barstow and Chief Ramirez; it does not name Detective Libby and Deputy DA Dowd. However, even if Plaintiff is intending to bring a First Amendment retaliation claim against these other Defendants, Count Seven fails to state a claim.

a. Applicable Law.

Governmental action designed to suppress or retaliate against protected expression "strikes at the heart of the First Amendment." Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986), cert. denied, 479 U.S. 1054 (1987). "Accordingly, the victim of such action is entitled to sue the responsible state agents under section 1983." Id. Plaintiffs may not, however, "recover merely on the basis of a speculative 'chill' due to generalized and legitimate law enforcement initiatives." Id. Rather, to state a section 1983 claim for a First Amendment violation, the plaintiff must plead facts plausibly showing that (1) by his actions, the defendant deterred, or intended to deter, the plaintiff's protected expression, and (2) such deterrence was the "motivating factor" in the defendant's conduct." Sloman v. Tadlock, 21 F.3d 1462, 1469 (9th Cir. 1994) (citing Mendocino Env. Ctr., 192 F.3d at 1300); see also Skoog v. Cty. of Clackamas, 469 F.3d 1221, 1232 (9th Cir. 2006) (holding plaintiff "must ultimately prove" that defendant's "desire to cause the chilling effect was a but-for cause of the defendant's action").

A "plaintiff need not plead the absence of probable cause in order to state a claim for retaliation" aimed at punishing or suppressing protected expression. Skoog, 469 F.3d at 1232. The plaintiff must, however, plead facts that plausibly show the arresting officer was motivated by a desire to suppress protected expression. Iqbal, 556 U.S. at 679-81.

b. Analysis.

As to Deputy DA Dowd, Plaintiff essentially alleges that Dowd filed criminal charges against Plaintiff without probable cause in order to deter Plaintiff's artistic expression. (FAC ¶ 97 [referring to "malicious prosecution"].) This claim fails due to prosecutorial immunity. See Imbler, 424 U.S. at 437 (holding that a "prosecutor is absolutely immune from suit for malicious prosecution").

As to Detective Libby, Plaintiff appears to be alleging that Libby's alleged acts described in other counts of the FAC constituted acts of "intimidation" intended to deter Plaintiff's artistic expression. (FAC ¶ 97.) Plaintiff has not pled sufficient facts to plausibly allege that deterring Plaintiff's exercise of his First Amendment was the "motivating factor" for Defendant Libby's conduct. See, e.g., Harris v. Harris, No. 11-2186, 2013 WL 211120, at *5 (E.D. Cal. Jan. 18, 2013) (recommending that motion to dismiss be granted because the plaintiff had not pled any nonconclusory factual allegations indicating that the defendant acted with the intent to quell protected speech). Plaintiff has not alleged, for example, that Libby knew Plaintiff prior to Border Patrol Agent Fellenz reporting Plaintiff's suspected wrongdoing. Plaintiff has not alleged any facts suggesting that Libby had a motive to retaliate against Plaintiff, let alone to retaliate against him for his exercise of protected expression (i.e., taking pictures of adult models). The facts alleged show that Libby's actions were motivated by his suspicion that Plaintiff was taking prurient pictures of children, a form of expression not protected by the First Amendment. Brown v. Entm't Merchs. Ass'n, 564 U.S. 786, 842 (2011) (holding that child pornography "automatically fall[s] outside the First Amendment's protective scope").

4. Conclusion.

For these reasons, Count Seven fails to state a claim for relief, either against Chief Ramirez and the City of Barstow or against Deputy DA Dowd and Detective Libby. Granting Plaintiff further leave to amend would be futile, given the multiple amendments Plaintiff has already made.

I. Count 9: Injunctive Relief.

The Court interprets Plaintiff's claim for injunctive relief as directed at the City of Barstow and Chief Ramirez in his official capacity. See Woods v. Carey, 684 F.3d 934, 935, n.2 (9th Cir. 2012) (claims against state actors seeking injunctive relief must name the defendant in his official capacity). Plaintiff seeks an injunction prohibiting Defendants from engaging in unconstitutional behavior. (FAC ¶¶ 103-105.) Plaintiff alleges that if not enjoined, Defendants' policies "will continue to cause the Plaintiff and persons similarly situated irreparable harm." (Id. at ¶ 104.) Specifically, Plaintiff prays for an order "enjoining the City of Barstow from engaging in the practice of illegal search and seizure where probable cause does not exist." (FAC Prayer, ¶ 3.)

Count Nine fails as a matter of law. First, "injunctive relief is a remedy and not, in itself, a cause of action," and a cause of action must exist before injunctive relief may be granted. McNeary-Calloway v. JP Morgan Chase Bank, N.A., 863 F. Supp. 2d 928, 964 (N.D. Cal. 2012). Since Counts One through Eight fail to state a claim for relief, Plaintiff cannot maintain a stand-alone claim for injunctive relief.

Second, to seek injunctive relief in federal court, the plaintiff must allege facts plausibly showing "the likelihood of substantial and immediate irreparable injury, and the inadequacy of remedies at law." Los Angeles v. Lyons, 461 U.S. 95, 103 (1983) (holding plaintiff who had been restrained via a chokehold could not sue the LAPD to enjoin the use of chokeholds because of the "speculative nature of his claim that he will again experience injury as the result of that practice even if continued"). Plaintiff has not, and cannot, plead facts showing he is likely to suffer irreparable injury from being subjected to future searches or arrests by the BPD without probable cause. His allegations concerning potential future injury are pure speculation.

Granting Plaintiff further leave to amend this claim would be futile because, for the reasons discussed above, Plaintiff has failed to state a claim for violation of his federal constitutional rights in the prior eight Counts.

VI. RECOMMENDATION

IT IS THEREFORE RECOMMENDED that the District Judge issue an Order: (1) accepting this Report and Recommendation, and (2) dismissing this action in its entirety with prejudice. DATED: June 23, 2017

/s/_________

KAREN E. SCOTT

UNITED STATES MAGISTRATE JUDGE

NOTICE

Reports and Recommendations are not appealable to the Court of Appeals, but are subject to the right of any party to timely file Objections as provided in the Federal Rules of Civil Procedure and the instructions attached to this Report. This Report and any Objections will be reviewed by the District Judge whose initials appear in the case docket number.

Ward v. City of Barstow

Summary

Opinion

I.

INTRODUCTION

II.

PLAINTIFF'S FACTUAL ALLEGATIONS

III.

PROCEDURAL BACKGROUND

IV.

STANDARD OF REVIEW

V.

DISCUSSION

I. Count 9: Injunctive Relief.

VI.

RECOMMENDATION

NOTICE

Ward v. City of Barstow

Ward v. City of Barstow

Case Details

Citations

Citing Cases

Ward v. City of Barstow

Summary

Opinion

I.

INTRODUCTION

II.

PLAINTIFF'S FACTUAL ALLEGATIONS

III.

PROCEDURAL BACKGROUND

IV.

STANDARD OF REVIEW

V.

DISCUSSION

I. Count 9: Injunctive Relief.

VI.

RECOMMENDATION

NOTICE

Ward v. City of Barstow

Ward v. City of Barstow

Case Details

CitationsCopy Citation

Citing Cases

Citations