Opinion
No. C 09-03508 CRB.
October 26, 2010
ORDER GRANTING MOTION TO DISMISS WITH PREJUDICE
This case was brought by Plaintiff Shiyu Wang, a dentist who claims that the State of California, through various officials, prosecuted a baseless criminal action against him. It comes before the Court again on a Motion to Dismiss. Dkt. 57. The Motion to Dismiss is GRANTED with prejudice, and this case is dismissed.
The parties agree that this matter is ripe for disposition without oral argument. October 8, 2010 Letter from Plaintiff to the Court (Dkt. 59); Defendants' Reply (Dkt. 61).
I. BACKGROUND
This Court granted a Motion to Dismiss in this case on June 22, 2010, dismissing Plaintiff's claims and nearly identical claims brought by Faruk Cenap Yetek arising out of their prosecutions for alleged Denti-Cal fraud. June 22, 2010 Order (Dkt. 53); see also 09-cv-03702-CRB. Both individuals were granted leave to amend, and Plaintiff filed an amended complaint (now proceeding pro se) on July 8, 2010.
Plaintiff is a dentist who worked as an independent contractor for Hatch Dental for a short period in 2003. Second Amended Complaint ("SAC") (Dkt. 56) ¶ 14. Hatch Dental was believed by the government to have engaged in fraudulent and illegal conduct related to billing Denti-Cal, a state agency. Id. ¶ 15. In 2004, Defendants initiated criminal proceedings against Hatch Dental, and Plaintiff was arrested and charged with fraudulent billing and performance of unnecessary dental procedures. Id. ¶ 17. Defendants "intentionally collected, sorted and organized the clinical data in a way that these data could be wrongfully interpreted or explained by defendant in order to be justified as evidence to prosecute plaintiff." Id. ¶ 19. In addition, Defendants misused the expert witness system, and the State's witness's testimony was "contrary to standard of practice and commonly accepted professional principles, practices, and publications, and the evidence in the case." Id. ¶ 26. Defendants maintained this baseless prosecution because Plaintiff and several others tangentially involved with Hatch Dental "were immigrants and unfamiliar with the legal system, and more susceptible to Defendants pressuring them to plead guilty and accept the settlement offers, and were less able to defend themselves and fight for their rights." Id. ¶ 24, 28. The charges against Plaintiff were dismissed, at the preliminary hearing stage, on August 13, 2008. Id. ¶ 24. In sum, "Defendants participated in and supported the fabrication of false evidence, announcing a false statement in front of media, misusing expert witness system, [and] filing a prosecution of false accusations against plaintiff. . . ." Id. ¶ 32.
Because this matter comes before the Court on a motion to dismiss, the facts presented here are in the light most favorable to Plaintiff.
II. LEGAL STANDARD
III. DISCUSSION
Wyler-Summit Partnership v. Turner Broadcasting System, Inc.,135 F.3d 658661Ashcroft v. Iqbal,___ U.S. ___ 129 S. Ct. 19371949173 L.Ed.2d 868Id. Id. Id.
A. Prosecutors
As this Court pointed out in the Order dismissing the First Amended Complaint ("FAC"), prosecutors are absolutely immune from suits relating to their performance of prosecutorial functions.See Butz v. Economou, 438 U.S. 478 (1978); Imbler v. Patchman, 424 U.S. 409, 430 (1976).
In the Order dismissing the FAC, the Court directed Plaintiff to include in any subsequent complaint "facts relating [] to the investigative conduct of the prosecutors," because such conduct is not subject to absolute immunity. June 22, 2010 Order (Dkt. 50) at 6. Morton v. City of Ellensburg, No. CV-09-3092-EFS, 2010 WL 3938207, at *2 (E.D. Wash. Oct. 4, 2010) ("[A]bsolute immunity does not extend to all actions taken by a prosecutor: a prosecutor enjoys only qualified immunity when performing investigatory or administrative functions.") (citing Broam v. Bogan, 320 F.3d 1023, 1028-29 (9th Cir. 2003); Imbler, 424 U.S. at 431 n. 33). In response to the Court's direction, Plaintiff alleges in the SAC that "[d]uring investigation defendants intentionally collected, sorted and organized the clinical data in a way that these data could be wrongfully interpreted or explained by defendant in order to be justified as evidence to prosecute plaintiff" and "collect[ed], sort[ed] and organiz[ed] the false negative x-rays from the pile of patients' records so that they look like evidence of no-decay teeth." SAC (Dkt. 56) ¶ 19. Later, Plaintiff alleges that Defendants "fabricated" "false evidence."Id. ¶ 32.
This is not enough to survive a motion to dismiss because it does not state a plausible claim that any individual Defendant fabricated evidence during the investigation before charges were filed. See Buckley v. Fiftzsimmons, 509 U.S. 259, 273 (1993);Eclectic Properties East, LLC v. Marcus Millichap Co., No. C-09-0511 RMW, 2010 WL 384736, at *2 (N.D. Cal. Jan. 29, 2010) ("[T]he complaint nevertheless fails to adequately plead facts sufficient to inform each defendant of the specific allegations against it under each asserted cause of action, and many of the allegations simply lump all of the defendants together in a group."). Indeed, neither of the two non-conclusory allegations regarding claimed evidence fabrication even allege that fabrication took place. Instead, the allegations simply assert that the prosecutors organized the actual evidence in such a way as to support their theory that Plaintiff acted unlawfully. But the mere organization of evidence in a persuasive way is not unconstitutional conduct on the part of a prosecutor. See generally U.S. v. McVeigh, 954 F. Supp. 1441, 1449-50 (D. Colo. 1997) ("There is no requirement that the government present all of the information known to it that can meet the requirements for admissible evidence. The prosecutors may be selective and use only that which they believe will have persuasive effect on the jury.").
Thus, the Motion to Dismiss is granted with prejudice as to the prosecutor Defendants.
B. Witnesses
Plaintiff once again names Dr. Susan Jane Quon as a Defendant. She is once again alleged to have been hired as a dental expert by the prosecuting Defendants, and her assertions "were the basis of the case against Plaintiff, were contrary to standard of practice and commonly accepted professional principles, practices, and publications, and the evidence in the case." SAC (Dkt. 56) ¶ 26.
When this Court dismissed the claims against Defendant Quon last time it noted two failings as to those claims. First, that the allegations did not support the conclusion that Defendant Quon was a state actor. See June 22, 2010 Order (Dkt. 50) at 7. Second, that even if Defendant Quon was a state actor, she was protected by qualified immunity because the complaint failed to identify any constitutional right that she infringed. Id. Both of these shortcomings still exist. The SAC continues to allege that Defendant Quon was "hired and paid to make the accusations," revealing that she was simply a private expert witness retained by the prosecution. SAC (Dkt. 56) ¶ 26. Moreover, her alleged misconduct — making assertions that "were contrary to standard of practice and commonly accepted professional principles, practices, and publications, and the evidence in the case" — does not rise to the level of a constitutional violation even if Defendant Quon were considered to be a state actor. SAC (Dkt. 56) ¶ 26. Accordingly, the claims against Defenant Quon are dismissed with prejudice.
To the extent Plaintiff has alleged that Defendant Quon violated his rights through knowingly providing false testimony in-court, see SAC (Dkt. 56) ¶ 27, she is entitled to absolute immunity. Paine v. City of Lompoc, 265 F.3d 975 (2001).
C. Supervisory Liability
If Plaintiff is making a distinct claim against any supervising Defendant in his role as a supervisor such claim fails because it is pleaded, if at all, in an entirely conclusory fashion. There is no respondeat superior liability in section 1983 cases, so it is not enough for Plaintiff to allege a violation of a constitutional right and then name the perpetrator's supervisors as additional Defendants. Mortimer v. Baca, 594 F.3d 714, 722 (9th Cir. 2010). The SAC is simply devoid of the allegations necessary to state a plausible claims for supervisory liability under section 1983.
IV. CONCLUSION
Defendants' Motion to Dismiss (Dkt. 57) is GRANTED with prejudice.
IT IS SO ORDERED.
Dated: October 26, 2010