ORDER

This case was on calendar on June 22, 2012 for argument on a motion to dismiss filed by defendants Nevada County, Jesse King, Gregory Weston and Katherine Francis. Patrick H. Dwyer appeared for plaintiff; Marcos A. Kropf appeared for defendants. After considering the parties' briefs, supplemental briefs and argument, the court GRANTS defendants' motion to dismiss in part and declines to exercise supplemental jurisdiction over the state claims. I. BACKGROUND

On March 16, 2012, plaintiff filed a civil rights complaint against defendants Nevada County; Deputy District Attorneys Gregory Weston and Katherine Francis; and Deputy Sheriff Jesse King, containing the following causes of action: (1) violation of Fourth and Fourteenth Amendment rights against Nevada County, stemming from the Sheriff's Department's failure to have a policy for handling and maintaining digital evidence; (2) violation of Fourth and Fourteenth Amendment rights against Nevada County, stemming from the District Attorney's Office's failure to have a policy for handling and maintaining digital evidence; (3) violation of Fourth and Fourteenth Amendment rights against King, stemming from his handling of digital evidence; (4) violation of Fourth and Fourteenth Amendment rights against Francis, stemming from his failure to review and produce exculpatory evidence; (5) violation of Fourth and Fourteenth Amendment rights against Weston, stemming from her failure to review and produce exculpatory evidence; (6) malicious prosecution against Nevada County; (7) a violation of California Civil Code § 52.1(b) against Nevada County and King; (8) intentional infliction of emotional distress against Nevada County and King; and (9) negligence against Nevada County and King.

According to the complaint, on April 20, 2010, process server Thomas Benzing came on to plaintiff's property in violation of a "stay away" order, assaulted plaintiff and placed plaintiff under citizen's arrest. Complaint, ECF No. 1, ¶ 8. As Benzing continued to assault plaintiff despite the citizen's arrest, plaintiff put Benzing in an armlock and asked his wife to call the sheriff. Id. ¶ 9. Plaintiff's wife, Susan Pellerin, filmed "almost the entire incident" on a Flip video camera, which she gave to defendant King, the responding officer. Id. ¶ 10. Even though Mrs. Pellerin had shown King the video of Benzing attacking plaintiff, King took plaintiff into custody. Id. ¶¶ 10-11.

King plugged the Flip video camera into a USB port on a Sheriff's Department computer and produced an edited version of the video. Id. ¶ 22. At that time neither the Sheriff's Office nor the District Attorney's Office had policies concerning the handling, viewing, processing, enhancing or examining of digital evidence and had not trained their employees to make forensic copies of such evidence. Id. ¶¶ 15-21. As a result, King did not make a forensic copy of the digital evidence, but rather produced a clip of the video designed to show plaintiff in a bad light and in the course of making it, erased portions of the video from the Flip camera. Id. ¶ 24.

Plaintiff's counsel sent informal discovery requests to Francis, asking for the entire contents of the Flip video camera; Francis finally produced a copy of the edited clip on June 24, 2010. Id. ¶ 25. Plaintiff secured permission to inspect the video camera and discovered that there was not a single ten-to-fifteen minute recording as Mrs. Pellerin had reported to him, but multiple files, none of which matched the clip Francis had turned over. Id. ¶¶ 27-28. Plaintiff then secured permission for an expert to undertake a forensic examination of the camera and of any Sheriff's Department computers involved in making the short clip. Id. ¶ 29. Plaintiff's expert determined it was possible that Mrs. Pellerin's ten-to-fifteen minute video had been altered, as it had been broken into three separate files with unexplained time gaps between them. Id. ¶ 33.

Neither Francis nor Weston, who took over the case, explored whether the Sheriff's Department had made a forensic copy of the video or had turned over the entire video to the District Attorney's Office. Id. ¶ 31. Weston repeatedly refused to review the exculpatory portions of the video. Id. ¶ 35.

The Nevada County Superior Court held an evidentiary hearing concerning the handling of the evidence on the Flip video camera. Id. ¶ 36.

Plaintiff's counsel also filed a motion to dismiss the charges, alleging that the handling of the digital evidence violated his right to the release of exculpatory evidence under Brady v. Maryland, 373 U.S. 83 (1963), and a motion to recuse the District Attorney's Office, based on the District Attorney's conflict of interest. Id. ¶¶ 38-39. After a hearing, the Superior Court denied both motions. Id. ¶ 40. Counsel filed a petition for a writ of mandate in the Court of Appeal, which issued an alternative writ granting the request for recusal of the District Attorney's office. Id. ¶ 41.

The Attorney General's Office substituted in as the prosecutor and thereafter met with plaintiff's counsel to watch the entire video of the incident with Benzing. Id. ¶¶ 43, 44. On January 26, 2012, the Attorney General's Office dismissed the case. Id. ¶ 45.

II. STANDARDS FOR A MOTION TO DISMISS

Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a party may move to dismiss a complaint for "failure to state a claim upon which relief can be granted." A court may dismiss "based on the lack of cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory." Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990).

Although a complaint need contain only "a short and plain statement of the claim showing that the pleader is entitled to relief," FED. R. CIV. P. 8(a)(2), in order to survive a motion to dismiss this short and plain statement "must contain sufficient factual matter . . . to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A complaint must include something more than "an unadorned, the-defendant-unlawfully-harmed-me accusation" or "'labels and conclusions' or 'a formulaic recitation of the elements of a cause of action.'" Id. (quoting Twombly, 550 U.S. at 555). Determining whether a complaint will survive a motion to dismiss for failure to state a claim is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679. Ultimately, the inquiry focuses on the interplay between the factual allegations of the complaint and the dispositive issues of law in the action. See Hishon v. King & Spalding, 467 U.S. 69, 73 (1984).

In making this context-specific evaluation, this court must construe the complaint in the light most favorable to the plaintiff and accept as true the factual allegations of the complaint. Erickson v. Pardus, 551 U.S. 89, 93-94 (2007). This rule does not apply to "'a legal conclusion couched as a factual allegation,'" Papasan v. Allain, 478 U.S. 265, 286 (1986) (quoted in Twombly, 550 U.S. at 555), nor to "allegations that contradict matters properly subject to judicial notice" or to material attached to or incorporated by reference into the complaint. Sprewell v. Golden State Warriors, 266 F.3d 979, 988-89 (9th Cir. 2001). A court's consideration of documents attached to a complaint or incorporated by reference or matter of judicial notice will not convert a motion to dismiss into a motion for summary judgment. United States v. Ritchie, 342 F.3d 903, 907-08 (9th Cir. 2003); Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir. 1995); compare Van Buskirk v. Cable News Network, Inc., 284 F.3d 977, 980 (9th Cir. 2002) (noting that even though court may look beyond pleadings on motion to dismiss, generally court is limited to face of the complaint on 12(b)(6) motion). III. ANALYSIS

Defendants argue that to the extent the District Attorney's Office and the individual deputy district attorneys are sued in their official capacities, they are entitled to Eleventh Amendment immunity because they are deemed to be state officials; to the extent they are sued in their individual capacities, they are entitled to absolute prosecutorial immunity. They also argue that none of the claims against the county, the prosecutors and the Sheriff's Department and deputies are cognizable because they were decided against plaintiff in the criminal proceedings in Nevada County. They argue that plaintiff cannot raise a Brady claim based on his contention that King mishandled the evidence and that the prosecutors ignored the evidence because defendant was not convicted, the evidence was eventually disclosed, and plaintiff was aware of it, but to the extent that the evidence was mishandled, this does not implicate the Fourth Amendment. They also argue that the complaint does not state a claim against the County because there is no allegation that any malicious prosecution was undertaken pursuant to a policy. Finally, defendants contend that the pendent state claims should be dismissed.

Plaintiff contends there is no Eleventh Amendment immunity because district attorneys are not state officials. He also argues that the doctrine of absolute prosecutorial immunity is not applicable because the failures in this case were administrative. He asserts that collateral estoppel does not bar this action because there was no conviction and he was denied the opportunity fully to litigate the issues below. He then contends that his claims are based on the Fourth and Fourteenth Amendment, not on Brady, though they do have a Brady component. In addition, neither the Sheriff's Department nor the County had policies for maintaining evidence and training deputies about the retention and protection of digital evidence.

A. Prosecutors as State Officials

Defendants assert Eleventh Amendment immunity for the District Attorney's office and defendants Weston and Francis, to the extent they are sued in their official capacities as deputy district attorneys. Defendant makes no claim of immunity for either the Sheriff's Department or King as the individually named Sheriff's deputy.

In the absence of the state's consent to suit, the Eleventh Amendment bars suits for damages against states, state agencies, and state officials acting in their official capacities. See Puerto Rico Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993); Brown v. California Dept. of Corrections, 554 F.3d 747, 752 (9th Cir.2009); Han v. United States Dep't of Justice, 45 F.3d 333, 338 (9th Cir.1995).

In Weiner v. San Diego County, 210 F.3d 1025 (9th Cir. 2000), the Ninth Circuit explored the application of McMillian v. Monroe County, Ala., 520 U.S. 781 (1997) to the question whether a California district attorney was a state or county official for purposes of county liability under Monell v. Dept. of Social Servs., 436 U.S. 658 (1978). Recognizing that the question is of one of federal law, but yet was intimately bound up with state law, the court examined California's constitutional and statutory provisions and held that "a California district attorney is a state officer when deciding whether to prosecute an individual." Id. at 1031. The Ninth Circuit has relied on Weiner in concluding that prosecutors "act as state officials, and so possess Eleventh Amendment immunity, when acting in [their] prosecutorial capacity." Del Campo v. Kennedy, 517 F.3d 1070, 1073 (9th Cir. 2008); Ambrose v. Coffey, 696 F. Supp. 2d 1119, 1137 (E.D. Cal. 2010). Defendants Francis and Weston, sued in their official capacity for failing to review the exculpatory evidence on the Flip video camera, are immune from suit.

To the extent plaintiff argues that the District Attorney's office itself is liable, his claim also fails, as the office is deemed to be a state agency when involved in prosecutorial activities. Nazir v. County of Los Angeles, No. CV 10-06546 SVW (AGRx), 2011 WL 819081, at *8 (C.D. Cal. Mar. 2, 2011).

Finally, the County is also immune. "To hold a local government liable for an official's conduct, a plaintiff must first establish that the official (1) had final policymaking authority concerning the action alleged to have caused the particular constitutional or statutory violation at issue and (2) was the policymaker for the local governing body for the purposes of the particular act." Weiner v. San Diego County, 210 F.3d at 1028. Because members of the District Attorney's office were state officials for purposes of prosecutorial decisions, they cannot be deemed to be policy makers for the County. Id. at 1031.

B. Prosecutorial Immunity

In Imbler v. Pachtman, 424 U.S. 409 (1976), the Supreme Court held that a prosecutor is entitled to absolute immunity for all activities "intimately associated with the judicial phase of the criminal process" even if "the genuinely wronged defendant" is thereby left "without civil redress against a prosecutor whose malicious or dishonest action deprives him of liberty." Id. at 427, 430-31. As part of his trial preparation, "a prosecutor may be required to obtain, review and evaluate evidence" and so his decision "not to preserve or turn over exculpatory material before trial" in violation of Brady v. Maryland, supra, is part of the prosecutorial process and subject to absolute immunity. Broam v. Bogan, 320 F.3d 1023, 1029, 1030 (9th Cir. 2003). A prosecutor is also immune from claims that he initiated prosecution maliciously. Imbler, 424 U.S. at 422; Kalina v. Fletcher, 522 U.S. 118, 124 (1997). To the extent plaintiff faults defendants Francis and Weston for refusing or failing to obtain or review the complete video of the incident, they are immune.

Plaintiff also argues, however, that the deputy district attorneys and the District Attorney's Office had an affirmative duty to establish and enforce policies for handling, preserving and transmitting digital evidence and that defendants are not absolutely immune for these failures because a prosecutor is not entitled to absolute immunity for actions undertaken in an investigatory or administrative capacity. Buckley v. Fitzsimmons, 509 U.S. 259, 273 (1993). In Van de Kamp v. Goldstein, 555 U.S. 335 (2009), the Supreme Court considered whether absolute immunity extended to claims that a prosecutor failed to turn over impeachment material "due to (1) a failure properly to train prosecutors, (2) a failure properly to supervise prosecutors, or (3) a failure to establish an information system containing potential impeachment material about informants," and concluded that "absolute immunity extends to all these claims." Id. at 339. The Court recognized that "the management tasks at issue . . . concern how and when to make impeachment information available at a trial. They are thereby directly connected with a prosecutor's basic trial advocacy duties." Id. at 346.

The Court then turned to the plaintiff's claim that the district attorney's office in that case should have created a system that would have given prosecutors access to impeachment material concerning informants. Id. at 348. The court noted that the decisions concerning the contents of such a system require knowledge of the law and are therefore connected with the judicial phase of any prosecution. Id. at 349. The court concluded that "where a § 1983 plaintiff claims that a prosecutor's management of a trial-related information system is responsible for a constitutional error at his or her particular trial, the prosecutor responsible for the system enjoys absolute immunity just as would the prosecutor who handled the particular trial itself." Id. In Cousins v. Lockyer, 568 F.3d 1063, 1069 (9th Cir. 2009), the Ninth Circuit relied on Van de Kamp, holding that the Attorney General's office was immune for failing to develop a system to track information on appellate reversals and thus failing to seek the plaintiff's release in a timely fashion after a reversal. Here, the District Attorney's Office and defendants Weston and Francis are absolutely immune from the claims relating to the failure to implement systems for the handling of digital evidence.

C. Brady Claims

Plaintiff denies that his claims against the County, the Sheriff's Department and defendant King stem from Brady v. Maryland, arguing instead that they stem from the absence of policies for handling digital evidence and King's failures to make a forensic copy of the video and to transmit the complete video to the District Attorney's Office. However, in his complaint, plaintiff cites "his rights under Brady v. Maryland, the loss of his substantive rights under the Fourth Amendment to the United States Constitution, and the loss of his due process rights under the Fourteenth Amendment to the United States Constitution" as sources of rights for his underlying constitutional injuries. (ECF 1 ¶¶ 43, 52, 60, 70, 76, 83.)

"As in any action under § 1983, the first step is to identify the exact contours of the underlying right said to have been violated." County of Sacramento v. Lewis, 523 U.S. 833, 842 (1998) (citation omitted). Without an underlying constitutional injury, there is no § 1983 cause of action. See City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986); see also Grossman v. City of Portland, 33 F.3d 1200, 1203 (9th Cir. 1994) ("Heller holds that when a person sues under § 1983 for an allegedly unconstitutional arrest the city cannot be held liable absent a constitutional violation by the arresting officer."). A department policy or regulation that merely has the potential of causing a constitutional injury will not lend itself to a cause of action under § 1983, unless the plaintiff actually suffers such an injury. See Heller, 475 U.S. at 799.

Plaintiff claims he has an independent constitutional right to proper procedures for handling digital evidence. He derives this position from Kyles v. Whitley, 514 U.S. 419 (1995), a case that explored the contours of the prosecutor's Brady duty to turn over exculpatory evidence. However, the portion he cites to does not establish an independent right but only recognizes that a prosecutor may avoid Brady problems by establishing adequate procedures: "procedures and regulations can be established to carry [the prosecutor's] burden and to insure communication of all relevant information on each case to every lawyer who deals with it." Id. at 438 (quoting Giglio v. United States, 405 U.S. 150, 154 (1972)). Moreover, "[p]roving that an injury or accident could have been avoided if an employee had had better or more training, sufficient to equip him to avoid the particular injury-causing conduct will not suffice [under § 1983]" and "so showing merely that additional training would have been helpful in making difficult decisions does not establish municipal liability." Connick v. Thompson, _ U.S. _, 131 S. Ct. 1350, 1363-64 (2011) (quotations and citations omitted); see also Devereaux v. Abbey, 263 F.3d 1070, 1075 (9th Cir 2001) (en banc) (finding no constitutional right to have a witness interview conducted in a particular way).

In the absence of any independent right to particular procedures, plaintiff can show a Fourteenth Amendment violation only by demonstrating that his Brady rights were violated. Defendants argue he cannot do so because he was not convicted.

"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." See Strickler v. Greene, 527 U.S. 263, 281-82 (1999); see also Schad v. Ryan, 671 F.3d 708, 715 (9th Cir. 2011), cert. denied, __ U.S. _, 133 S.Ct. 432 (2012). In other words, Brady is violated when "the government's evidentiary suppression undermines confidence in the outcome of the trial." Kyles v. Whitley, 514 U.S. at 434 (citations and quotations omitted). The lack of any trial or conviction would make such an inquiry necessarily impossible.

In Puccetti v. Spencer, 476 F. App'x 658, 661-62 (9th Cir. 2011), the Ninth Circuit joined other circuits in concluding that a plaintiff has no claim for a Brady violation in the absence of a criminal conviction. See 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). To the extent plaintiff's claims rest on the failure to release exculpatory information, he cannot state a claim because he was not convicted of any offense.

Plaintiff claims defendants' actions and inactions violated his Fourth Amendment rights but he has not cited to any case supporting his claim that the mishandling of exculpatory evidence constitutes such a violation in the absence of a claim that the failure to produce exculpatory evidence after his arrest unreasonably prolonged his detention or contributed to his conviction. See Russo v. City of Bridgeport, 479 F.3d 196, 210 (2d Cir. 2007) (holding that officers who viewed videotape of crime and falsely represented to defendant that it was inculpatory when, in fact, it was exculpatory, could be sued for actively hiding exculpatory evidence resulting in unreasonably prolonged detention in violation of Fourth Amendment); Taylor v. Waters, 81 F.3d 429, 437 (4th Cir. 1996) ("[A]lthough open communication between investigators and prosecutors should be encouraged, the failure of an officer to disclose exculpatory evidence after a determination of probable cause has been made by a neutral detached magistrate does not render the continuing pretrial seizure of a criminal suspect unreasonable under the Fourth Amendment.").

D. Manipulation of Evidence Claim

Plaintiff alleges that King's actions in downloading editing software, editing the video, and deleting portions of it constitute evidence tampering in violation of his right not to be subjected to charges on the basis of false evidence. ECF No. 12 at 13-14.

In Devereaux v. Abbey, the Ninth Circuit held that "there is a clearly established constitutional due process right not to be subjected to criminal charges on the basis of false evidence that was deliberately fabricated by the government." 263 F.3d at 1074-75. To plead such a claim, a plaintiff "must, at a minimum, point to evidence that supports at least one of the following two propositions: (1) Defendants continued their investigation of [plaintiff] despite the fact that they knew or should have known that he was innocent; or (2) Defendants used investigative techniques that were so coercive and abusive that they knew or should have known that those techniques would yield false information." Id. at 1076 (emphasis in original).

Plaintiff has not met his burden here of pleading a Devereaux claim against defendant King. He does allege that Mrs. Pellerin showed King the entire video, which allegedly showed that plaintiff acted in self-defense in his assault against Benzing, but that King thereafter edited the video to exclude any evidence supporting plaintiff's version of the incident. He does not allege the evidence was false, merely that it was incomplete.

Plaintiff has not cited nor has the court found any case supporting his theory that this manipulation satisfies Devereaux's requirement that the police used abusive techniques they knew would yield false evidence. Moreover, given both the nuanced law of self-defense and the fact that Mrs. Pellerin claimed to have filmed "most of the incident," it does not appear that King proceeded against plaintiff even though he knew plaintiff was innocent. See also Leone v. Township of Deptford, 616 F. Supp. 2d 527, 534 (D.N.J. 2009) (concluding there can be no constitutional injury from evidence tampering when the accused is acquitted). To the extent that the claims against King stem from his mishandling of the digital evidence, plaintiff has not met the minimum standards for pleading a claim under Devereaux.

E. Collateral Estoppel

Defendants claim that the issues raised in this complaint were decided adversely to plaintiff in connection with a motion to dismiss filed in Nevada County Superior Court. The parties have asked the court to take judicial notice of a variety of documents from the Nevada County proceedings. As these are relevant to a determination of this issue, the court grants both requests. United States v. Black, 482 F.3d 1035, 1041 (9th Cir. 2007) (a court may take judicial notice "'of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to the matters at issue.'") (quoting United States ex. rel. Robinson Rancheria Citizens Council v. Borneo, Inc., 971 F.2d 244, 248 (9th Cir.1992)).

In California, "collateral estoppel precludes relitigation of issues argued and decided in prior proceedings." Lucido v. Superior Court, 51 Cal. 3d 335, 341 (1990). There are five requirements that must be met before an issue is collaterally estopped:

First, the issue sought to be precluded from relitigation must be identical to that decided in a former proceeding. Second, this issue must have been actually litigated in the former proceeding. Third, it must have been necessarily decided in the former proceeding. Fourth, the decision in the former proceeding must be final and on the merits. Finally, the party against whom preclusion is sought must be the same as, or in privity with, the party to the former proceedings.

Following an evidentiary hearing on the cell phone evidence, plaintiff submitted a brief arguing the evidence had shown that neither the District Attorney's Office nor the Sheriff's Department had a policy to protect digital evidence, that the video clip was intentionally edited to portray Pellerin in an unfavorable light, the video clip produced by the prosecution to the defendant was only one of three video files of the incident, the video was missing two sections, and the District Attorney's Office had violated Pellerin's Brady rights. ECF 11-1 at 9-10.

The Superior Court denied the motion to dismiss after an evidentiary hearing and argument on the alleged tampering with the videotape and the Brady violation. It found, based on expert testimony, that law enforcement had not created any gaps on the video; that while Deputy King's handling of the video did not follow best practices, it was not misconduct and not intentional; that the defense had been given access to most of the video and then access to the flip phone with his expert; that whatever was on the video was not necessarily exculpatory because Mrs. Pellerin conceded she did not start filming until after Benzing had initiated the incident; and there was no bad faith or misconduct by the District Attorney's Office. ECF 19-1 at 41-44. Plaintiff filed a writ of mandate with the Third District Court of Appeal, challenging the Superior Court's ruling. ECF 1 ¶ 40. The appeals court declined to review the ruling on the motion to dismiss, but issued a writ recusing the District Attorney. Id. ¶ 41.

After the parties' argument in this case, the court requested briefing on two recent California cases involving collateral estoppel, both of which address the preclusive effect of findings in criminal cases on later civil rights actions. ECF No. 18. In Schmidlin v. City of Palo Alto, 157 Cal. App. 4th 728 (2007), plaintiff brought an action against police officers, alleging that they committed various constitutional and common-law torts when they detained and arrested him for public drunkenness. During the course of the criminal prosecution, plaintiff made a motion to suppress evidence on the grounds that the arresting officer lacked probable cause to conduct an investigatory detention and that all evidence procured from that detention should be excluded. Id. at 736. That motion was denied and eventually all charges were dismissed. Id. Plaintiff subsequently brought a civil action in California Superior Court, and the jury found that the arresting officers had violated his constitutional rights by using excessive force. Id. at 737. However, the court took from the jury the question of whether officers detained plaintiff without legal cause in violation of his constitutional right to be free of unlawful seizures, concluding that plaintiff had already litigated these issues during his motion to suppress evidence. Id. at 765. On appeal, the Sixth District Court of Appeal affirmed the trial court's ruling that plaintiff should be estopped from relitigating his unlawful search and seizure claim. Id. at 766.

In Johnston v. County of Sonoma, C 10-03592 CRB, 2012 WL 381197 (N.D. Cal. Feb. 6, 2012), plaintiff filed suit against the County of Sonoma, its elected Sheriff, and three deputy sheriffs who responded to a 911 call for assistance from plaintiff's neighbor. Plaintiff was charged with a misdemeanor violation of California Penal Code section 148(a)(1) (resisting arrest). Id. at *1. During the course of the criminal prosecution, plaintiff filed a motion to dismiss, challenging whether the deputies had probable cause to enter plaintiff's property, to arrest her, and to have her examined by medical personnel at the scene. Id. The trial court granted a conditional motion to dismiss. Id. at *2. Plaintiff subsequently filed a civil suit claiming violations of 42 U.S.C. § 1983. Defendants moved for partial summary judgment on the allegations of forced medical treatment and unlawful seizure and imprisonment, claiming that plaintiff should be barred by collateral estoppel. Finding that the facts underlying these claims were previously determined by the state court judge, the district court granted defendants' motion. Id. at *6-9.

With respect to the identity of issues in this case, it appears that the thrust of plaintiff's claims, in his motion to dismiss and in the present action, are based upon alleged mishandling of cell phone footage by the Sheriff's Department and the District Attorney's Office. Both the motion to dismiss and the present complaint detail the failure by the two departments to have policies in place to protect digital evidence, to train employees in handling the evidence, and to adequately communicate about and exchange the cell phone evidence at issue; both also allege that these failures caused the evidence in this case to be mishandled. Compare ECF 11-1 at 8-42 (Memorandum in Support of Motion to Dismiss) with ECF 1 (Complaint).

Plaintiff argues that the allegations in the present complaint involve many factual and legal issues that were never addressed or resolved by the criminal trial court. ECF 19. Plaintiff states that the only factual finding made by the trial court during the prosecution was that the video had been made available to him as the defendant in that proceeding, and there was no Brady violation on which to base a dismissal. Id. at 2. However, as discussed above, the present complaint appears to mirror the motion to dismiss filed by plaintiff during the criminal prosecution. See ECF 11-1; ECF 1. Plaintiff directs the court to the transcript of the hearing on the motion to dismiss, as evidence of the trial court's limited consideration of the issues contained in the present complaint. ECF 19 at 2. However, the transcript shows that both sides argued at length about the handling of the video as well as the failures to make it available to plaintiff. See ECF 19-1 at 29-43. Because the motion to dismiss included plaintiff's complaints not only about the absence of policies and the Brady violation but also about tampering with the evidence, the state court's denial of the motion necessarily decided those issues.

With respect to the fourth requirement for applying collateral estoppel, that the former decision was final and based on the merits, the court in Schmidlin considered a four part test for finality: "(1) whether the decision was not avowedly tentative; (2) whether the parties were fully heard; (3) whether the court supported its decision with a reasoned opinion; and (4) whether the decision was subject to an appeal." Schmidlin v. City of Palo Alto, 157 Cal. App. 4th at 774 (citing to Border Business Park v. City of San Diego, 142 Cal. App. 4th 1538, 1565 (2006)). Plaintiff argues that, unlike the situations in Schmidlin and Johnson, where appeals of the denials of the motions to suppress were available, the only way to challenge the denial of a motion to dismiss was through appeal following a conviction. ECF No. 19 at 4. He concedes that he pursued an extraordinary writ, but argues that it is the absence of the ability to appeal that deprives the order of finality for collateral estoppel purposes. However, it does not appear that the opportunity for appeal is the gauge of the finality of a decision for preclusion purposes: In People v. Cooper, 149 Cal. App. 4th 500 (2007), the court recognized that a "final judgment" for purposes of collateral estoppel is one that is "free from direct attack." Id. at 505-06 (internal citations and quotations marks omitted). "Stated differently, 'To be "final" for purposes of collateral estoppel, the decision need only be immune, as a practical matter, to reversal or amendment.'" Id. at 521 (quoting People v. Santamaria, 8 Cal. 4th 903, 942 (1994)). The Superior Court's decision in this case is final, as it is "free from direct attack."

Accordingly because the issues plaintiff raises in this action were decided adversely to him in the state proceedings, he is barred from pursuing them in this court.

F. State Law Claims

Having dismissed all of plaintiff's federal claims, only state law claims remain. Plaintiff brings three causes of action under state law. (ECF 1 at 24, 26.) "A federal district court with power to hear state law claims has discretion to keep, or decline to keep, [the state law claims] under the conditions set out in § 1367(c)." Acri v. Varian Associates, Inc., 114 F.3d 999, 1000, as supplemented by 121 F.3d 714 (9th Cir. 1997). One such condition is when "the district court has dismissed all claims over which it has original jurisdiction." 28 U.S.C.A. § 1367(c)(3). The court declines to exercise supplemental jurisdiction over plaintiff's remaining state law claims.

IT IS THEREFORE ORDERED that:

1. Defendants' motion to dismiss claims one through six, ECF 9, is granted;

2. The court declines to retain jurisdiction over the state law claims and so dismisses them; and

3. The case is closed.

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UNITED STATES DISTRICT JUDGE