Lininger Defendant Dean Flippo's Reply 44 02-27-18

Case 5:17-cv-03385-SVK Document 44 Filed 02/27/18 Page 1 of 11
1 CHARLES J. McKEE, SBN 152458

County Counsel
2 WILLIAM M. LITT, SBN 166614
Deputy County Counsel
3 County of Monterey
168 West Alisal Street, Third Floor
4 Salinas, California 93901-2653
Telephone: (831) 755-5045
5 Facsimile: (831) 755-5283
Email: Littwm@co.monterey.ca.us
6
7 Attorneys for Defendant DEAN FLIPPO
9 UNITED STATES DISTRICT COURT
10 NORTHERN DISTRICT OF CALIFORNIA
11
12
13 STACY LININGER, CASE NO. 5:17-cv-03385-SVK

14 Plaintiff, DEFENDANT DEAN FLIPPO’S
REPLY MEMORANDUM OF POINTS
15 vs. AND AUTHORITIES IN SUPPORT OF
MOTION TO DISMISS AMENDED
16 COMPLAINT PURSUANT TO FRCP
RONALD PFLEGER, CITY OF 12(b)(6)
17 CARMEL, DEAN FLIPPO, District
Attorney of Monterey County California, Hearing Date: March 20, 2018
18 and DOES 1-50, Time: 10:00 a.m.
Courtroom: 6 (4th Floor)
19 Defendants.
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Stacy Lininger v. Ronald Pfleger, et al. CASE NO. 5:17-CV-03385-SVK
Reply ISO Rule 12(b)(6) Motion to Dismiss Plaintiff’s Amended Complaint
1 TABLE OF CONTENTS
2 Page
3
4 Table of Authorities ........................................................................................................................ ii
5 REPLY MEMORANDUM OF POINTS AND AUTHORITIES ...................................................1
6 I. NO INJUNCTION SHOULD ISSUE AND THE CASE SHOULD BE

DISMISSEDWITHOUT LEAVE AS TO DEFENDANT FLIPPO BECAUSE
7 PLAINTIFF IS NOT THREATENED WITH REAL AND IMMEDIATE HARM ..........1
8 a. Plaintiff Defines Judicial Notice Too Narrowly, But Whether and To What Extent the
Court Grants the Request for Judicial Notice Should Not Affect the Outcome .................1
9
b. Plaintiff Is Not Threatened With Imminent Harm, Which Is the Only Relevant Issue .......2
10
II. THE REQUESTED RELIEF WOULD VIOLATE ESTABLISHED PRINCIPLES
11 OF COMITY AND FEDERALISM. ...................................................................................6
12 III. CONCLUSION ....................................................................................................................7
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1 TABLE OF AUTHORITIES
2 Page
3 Cases
4 Boyle v. Landry (1971) 401 U.S. 77, 81 ..........................................................................................7
5 City of Los Angeles v. Lyons (1983) 461 U.S. 95, 108-109 .....................................................1, 4. 6
6 Dombrowski v. Pfister (1965) 380 U.S. 479, 482 ...........................................................................3
7 Edelman v. Jordan, (1974) 415 U.S. 651 .......................................................................................5
8 E.g. Flast v. Cohen (1968) 392 U.S. 83, 96 .....................................................................................3
9 Ex Parte Young, (1908) 209 U.S. 123 ............................................................................................5
10 Golden v. Zwickler (1969) 394 U.S. 103, 109-110 .....................................................................3, 4
11 Green v. Mansour, 474 U.S. 64, 68 (1985) .....................................................................................5
12 Hodgers-Durgin v. De la Vina (9th Cir. 1999) (en banc) 199 F.3d 1037, 1042 .............................5
13 Hupp v. San Diego Cty. DA, No. 12-CV-492 - IEG (RBB), 2012 U.S. Dist. LEXIS 58564,
at *7-8 (S.D. Cal. Apr. 26, 2012) .....................................................................................................4
14
Lee v. City of Los Angeles (9th Cir. 2001) 250 F.3d 668, 689 ........................................................1
15
Maryland Casualty Co. v. Pacific Coal & Oil Co. (1941) 312 U.S. 270, 273 ................................3
16
O’Shea v. Littleton (1974) 414 U.S. 488, 497 ...........................................................................4, 7
17
Papasan v. Allain (1986) 478 U.S. 265, 277-278 ............................................................................5
18
Phelps v. Hamilton (10th Cir. 1997) 122 F.3d 1309 .........................................................................7
19
Quintana v. Gates (C.D.Cal. July 20, 2004, No. CV 00-07166 GAF (AJWx)) 2004
20 U.S.Dist.LEXIS 14886, at *8, fn. 1 ................................................................................................1
21 San Diego County Gun Rights Comm. v. Reno (9th Cir. 1996) 98 F.3d 1121, 1126........................4
22 Southern Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Group Ltd.
(3rd Cir. 1999) 181 F.3d 410, 426-27 .............................................................................................1
23
Younger v. Harris (1971) 401 U.S. 37 .............................................................................................4
24
25 RULES
26 Federal Rules of Civil Procedure Rule 12(b)(6) ..............................................................................1
27 Federal Rules of Evidence Rule 201(b) ...........................................................................................1
28 ii
1 REPLY MEMORANDUM OF POINTS AND AUTHORITIES

2
3 I. NO INJUNCTION SHOULD ISSUE AND THE CASE SHOULD BE DISMISSED

4 WITHOUT LEAVE AS TO DEFENDANT FLIPPO BECAUSE PLAINTIFF IS
5 NOT THREATENED WITH REAL AND IMMEDIATE HARM.
6 a. Plaintiff Defines Judicial Notice Too Narrowly, But Whether and To What
7 Extent the Court Grants the Request for Judicial Notice Should Not Affect
8 the Outcome.
9 The only relevant question before this Court is whether Mr. Flippo and his colleagues
10 pose a real and immediate threat of future injury to Plaintiff. City of Los Angeles v. Lyons (1983)
11 461 U.S. 95, 108-109. The arguments for and against the requested judicial notice are, to a large
12 degree, tangential. Nonetheless, a court “may take judicial notice of ‘matters of public record’
13 without converting a motion to dismiss into a motion for summary judgment.” Lee v. City of Los
14 Angeles (9th Cir. 2001) 250 F.3d 668, 689. “A court record, such as a criminal docket, is
15 judicially noticeable.” Quintana v. Gates (C.D.Cal. July 20, 2004, No. CV 00-07166 GAF
16 (AJWx)) 2004 U.S.Dist.LEXIS 14886, at *8, fn. 1 (taking judicial notice of, inter alia, a
17 plaintiff’s notice and conditions of parole; charge sheet related to the revocation of parole;
18 summary of revocation hearing and decision related to the revocation of the plaintiff's parole;
19 and the docket in plaintiff’s original criminal case). Accordingly, records such as the January 24,
20 2014 Minute Order and Judge Vallarta’s January 18, 2017 Ruling are properly subject to judicial
21 notice. However, as Plaintiff correctly points out, “a court may not take judicial notice of a fact
22 that is ‘subject to reasonable dispute.’” Lee, 250 F.3d at 689 (quoting FRE Rule 201(b)).
23 Instead, “on a Rule 12(b)(6) motion to dismiss, when a court takes judicial notice of another
24 court’s opinion, it may do so ‘not for the truth of the facts recited therein, but for the existence of
25 the opinion, which is not subject to reasonable dispute over its authenticity.’” Lee, 250 F.3d at
26 690 (quoting Southern Cross Overseas Agencies, Inc. v. Wah Kwong Shipping Group Ltd. (3rd
27 Cir. 1999) 181 F.3d 410, 426-27).
28 1
1 It is not subject to reasonable dispute that Plaintiff Lininger pled nolo contendere to
2 counts 1 and 3 of the 2013 charges and, as a result, was on probation at the time of the 2015
3 calls. Nor is there a reasonable dispute regarding the approximate number of calls Plaintiff
4 made, to whom she made the calls, and over what period of time she made them. Defendant’s
5 characterization of the calls and the surrounding circumstances is rhetorical. Defendant is not
6 requesting that this Court take judicial notice of the characterization of the calls as annoying or
7 harassing, the assertion that Plaintiff is attempting to portray herself as a civil rights crusader, or
8 anything else besides the undisputed facts established by or reflected in Exhibits A and B to the
9 motion to dismiss, many of which are stated or implied in the Amended Complaint itself. For
10 example, it is appropriate to ask this Court to take judicial notice of the undisputed fact, reflected
11 in Exhibit B, that Plaintiff was calling not just law enforcement officials but also a private party,
12 Victoria Wayner.
13 Remarkably, Plaintiff devotes more than a fourth of her Opposition to attacking Mr.
14 Flippo’s request for judicial notice. In so doing, Plaintiff fails to see the aphoristic forest for the
15 trees. Mr. Flippo does not question Plaintiff’s First Amendment right to criticize the police. Nor
16 is it necessary to split hairs as to whether Plaintiff made eighteen calls to the Carmel Police
17 Department or nineteen calls, or to determine whether the “tenor” of her calls was harassing or
18 abusive. Such determinations, to a large extent, already have been made by Judge Vallarta in the
19 appropriate venue, Superior Court. They are not necessary to this Court’s ruling on Mr. Flippo’s
20 motion to dismiss.
21 In this action, in U.S. District Court, Plaintiff seeks a federal court order enjoining a
22 California district attorney’s office from prosecuting her at some undefined point in the future,
23 for conduct she hasn’t even engaged in yet. One issue and one issue only is relevant to this
24 honorable Court’s analysis: does Plaintiff face a real and immediate threat of harm. Plainly she
25 does not.
26 b. Plaintiff Is Not Threatened With Imminent Harm, Which Is the Only

27 Relevant Issue.
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1 Since being charged for making the June 2015 calls, Plaintiff has not been prosecuted by
2 the Monterey County District Attorney’s Office for making subsequent calls to law enforcement,
3 nor for any other offense. Plaintiff does not allege that District Attorney Flippo or any of his
4 subordinates have threatened her with prosecution for any conduct occurring during the nearly
5 three years that have elapsed since the 2015 calls, nor could she honestly make such an
6 allegation. In this respect, the case is readily distinguishable from Civil Rights Movement-era
7 cases such as Dombrowski v. Pfister, in which, “[s]upported by affidavits and a written offer of
8 proof, the complaint further alleges that the threats to enforce the statutes against appellants are
9 not made with any expectation of securing valid convictions, but rather are part of a plan to
10 employ arrests, seizures, and threats of prosecution under color of the statutes to harass
11 appellants and discourage them and their supporters from asserting and attempting to vindicate
12 the constitutional rights of Negro citizens of Louisiana.” (1965) 380 U.S. 479, 482.
13 Federal courts do not issue advisory opinions. E.g. Flast v. Cohen (1968) 392 U.S. 83,
14 96. The requirements of an actual case or controversy and the immediate threat of harm become
15 even more of an imperative when a plaintiff seeks declaratory or injunctive relief. Over seventy-
16 five years ago, the Supreme Court observed, “[b]asically, the question in each case is whether the
17 facts alleged, under all the circumstances, show that there is a substantial controversy, between
18 parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance
19 of a declaratory judgment.” Maryland Casualty Co. v. Pacific Coal & Oil Co. (1941) 312 U.S.
20 270, 273. As the Court stated in Golden v. Zwickler:
21 [Plaintiff’s] assertion in his brief that the former Congressman can be “a candidate
22 for Congress again” is hardly a substitute for evidence that this is a prospect of
23 “immediacy and reality.”
24 ...
25 It was not enough to say, as did the District Court, that nevertheless Zwickler has
26 a “further and far broader right to a general adjudication of unconstitutionality . . .
27 [in] his own interest as well as that of others who would with like anonymity
28 3
1 practice free speech in a political environment . . . .” The constitutional question,
2 First Amendment or otherwise, must be presented in the context of a specific live
3 grievance.
4 (1969) 394 U.S. 103, 109-110. Plaintiff Lininger’s allegations are closely analogous to those
5 addressed by the Supreme Court in O’Shea v. Littleton, a case brought by activists for racial
6 justice challenging bond-setting, sentencing, and jury-fee practices in Alexander County, Illinois:
7 But it seems to us that attempting to anticipate whether and when these
8 respondents will be charged with crime and will be made to appear before either
9 petitioner takes us into the area of speculation and conjecture. See Younger v.
10 Harris, supra, [(1971) 401 U.S. 37] at 41-42. The nature of respondents’ activities
11 is not described in detail and no specific threats are alleged to have been made
12 against them. Accepting that they are deeply involved in a program to eliminate
13 racial discrimination in Cairo and that tensions are high, we are nonetheless
14 unable to conclude that the case-or-controversy requirement is satisfied by general
15 assertions or inferences that in the course of their activities respondents will be
16 prosecuted for violating valid criminal laws.
17 (1974) 414 U.S. 488, 497. As the Ninth Circuit made clear in San Diego County Gun Rights
18 Comm. v. Reno, (9th Cir. 1996) 98 F.3d 1121, 1126, plaintiffs seeking “declaratory and
19 injunctive relief only,” are required to “show a very significant possibility of future harm; it is
20 insufficient for them to demonstrate only a past injury.” See also Hupp v. San Diego Cty. DA,
21 No. 12-CV-492 - IEG (RBB), 2012 U.S. Dist. LEXIS 58564, at *7-8 (S.D. Cal. Apr. 26, 2012)
22 (“With respect to Plaintiff’s request to enjoin any future state court proceedings . . . an injunction
23 cannot be obtained when the alleged harm is merely conjectural or hypothetical. See Lyons, 461
24 U.S. 101-02. The threat must be real or immediate. Id. at 111. Plaintiff is not entitled to an
25 injunction enjoining hypothetical future state court proceedings.”). The Ninth Circuit has
26 observed that, “the Supreme Court has repeatedly cautioned that, absent a threat of immediate
27
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1 and irreparable harm, the federal courts should not enjoin a state to conduct its business in a
2 particular way.” Hodgers-Durgin v. De la Vina (9th Cir. 1999) (en banc) 199 F.3d 1037, 1042.
3 Desperate for a gimmick to prompt this Court to set aside comity and federalism and
4 agree to dictate future charging decisions in a California district attorney’s office, Plaintiff strains
5 to analogize her case to the systematic and brutal arrests and prosecutions of civil rights activists
6 desegregating the South over fifty years ago. See Opposition at 11:1-14:23; 15:18-16:1.
7 Plaintiff cites few cases to support her argument. The scant authority offered by Plaintiff
8 serves, on the contrary, to illustrate why Plaintiff’s current status bears no resemblance to that of
9 the plaintiffs in the early to mid-Twentieth Century cases on which she relies. Ex Parte Young,
10 (1908) 209 U.S. 123, cited by Plaintiff for the proposition that a federal court may enjoin
11 “repeated abuse of federal law by local officials,” involved an unconstitutional state statute, in a
12 regulatory context that bears no similarity to the case at bar. And Plaintiff overstates the reach of
13 Young. As the Supreme Court later explained:
14 Young has been focused on cases in which a violation of federal law by a state
15 official is ongoing as opposed to cases in which federal law has been violated at
16 one time or over a period of time in the past, as well as on cases in which the
17 relief against the state official directly ends the violation of federal law as
18 opposed to cases in which that relief is intended indirectly to encourage
19 compliance with federal law through deterrence or directly to meet third-party
20 interests such as compensation. As we have noted: “Remedies designed to end a
21 continuing violation of federal law are necessary to vindicate the federal interest
22 in assuring the supremacy of that law. But compensatory or deterrence interests
23 are insufficient to overcome the dictates of the Eleventh Amendment.” Green v.
24 Mansour, 474 U.S. 64, 68 (1985)
25 Papasan v. Allain (1986) 478 U.S. 265, 277-278. Edelman v. Jordan, (1974) 415 U.S.
26 651, also cited by Plaintiff, involved a challenge to Illinois regulations pertaining to the
27 federal-state program of Aid to the Aged, Blind, and Disabled that the class plaintiffs
28 5
1 alleged were inconsistent with federal regulations. It offers no support for the idea that a
2 federal court may supervise a California district attorney’s office to nip in the bud future
3 prosecutions that have not even been threatened.
4 As for Plaintiff’s attempt in footnote 3 of her Opposition to invoke Supreme Court cases
5 pertaining to the civil rights “crusaders” who desegregated the South in the 1950s and ‘60s --
6 heroes who deserve our admiration and eternal gratitude -- it should be noted that all of the cited
7 cases involved the Supreme Court overturning criminal convictions on First and Fourteenth
8 Amendment grounds. They did not involve federal courts injecting themselves into the day-to-
9 day operations of state prosecutors’ offices and dictating which charges may and may not be
10 brought in the future. Plaintiff audaciously compares herself to heroes such as King, Parks, and
11 Shuttlesworth. Opposition at 15:18-16:4. This strategy is more than misguided and inapt. It is
12 offensive to true students of American history and disrespectful to the legacies of the civil rights
13 icons Plaintiff references.
14 Plaintiff asserts that she will be chilled in making future complaints to the police. Even if
15 that is true, the Supreme Court made crystal clear in Lyons that, “[i]t is the reality of the threat of
16 repeated injury that is relevant to the standing inquiry, not the plaintiff’s subjective
17 apprehensions. The emotional consequences of a prior act simply are not a sufficient basis for an
18 injunction absent a real and immediate threat of future injury by the defendant.” 461 U.S. at 107,
19 fn. 8. Mr. Flippo is confident this Court will focus on what actually occurred in the prosecution
20 at issue and the events leading up to it – as well as the absence of any actual or threatened
21 prosecution for post-2015 conduct -- rather than being distracted by Plaintiff’s ill-conceived
22 attempts at misdirection and hyperbole. There is no real and immediate threat of future injury to
23 Plaintiff. That is the only issue relevant to the viability of Plaintiff’s lawsuit against Mr. Flippo.
24 II. THE REQUESTED RELIEF WOULD VIOLATE ESTABLISHED PRINCIPLES

25 OF COMITY AND FEDERALISM.
26 Not only is Plaintiff’s request for injunctive and declaratory relief misguided, it is
27 sweeping. She seeks an injunction barring Monterey County District Attorney Dean Flippo from
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1 “initiating or continuing criminal prosecutions against persons who object to police action,
2 criticize police action, seek information from police, seek action from the police in the absence
3 of documented evidence that they actually physically interfered with the performance of official
4 law enforcement duties” (sic). Complaint at 20:6-10. If granted, the requested relief as to both
5 Plaintiff and the legions of unidentified potential future defendants would violate bedrock
6 principles of comity and federalism. Citing O’Shea, supra, the Tenth Circuit Court of Appeals
7 decided a request to enjoin future criminal proceedings as follows:
8 “[W]hat the plaintiffs seek is ‘an injunction aimed at controlling or preventing the
9 occurrence of specific events that might take place in the course of future criminal
10 [proceedings].’ [O’Shea, 414 U.S.] at 500. In essence, the plaintiffs in this case
11 ask us to monitor the local district attorney’s office to insure that they are not
12 prosecuted under valid state laws for any occurrences related to their alleged
13 protected speech and activity. Such a request for relief fits squarely within the
14 O’Shea Court’s admonition that a ‘federal court should not intervene to establish
15 the basis for future intervention that would be so intrusive and unworkable.’” Id.
16 at 500.
17 Phelps v. Hamilton (10th Cir. 1997) 122 F.3d 1309, 1317. Plaintiff Lininger seeks
18 precisely the same “intrusive and unworkable” affront to comity and federalism that
19 Plaintiffs sought in Phelps. As the Supreme Court put it, “the normal course of state
20 criminal prosecutions cannot be disrupted or blocked on the basis of charges which in the
21 last analysis amount to nothing more than speculation about the future. The policy of a
22 century and a half against interference by the federal courts with state law enforcement is
23 not to be set aside on such flimsy allegations as those relied upon here.” Boyle v. Landry
24 (1971) 401 U.S. 77, 81.
25 III. CONCLUSION
26 Because there is no real and immediate threat of future injury to Plaintiff, because
27 Plaintiff does not have standing to assert the rights of unidentified individuals who have yet to be
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1 charged with any crime, and because the requested relief would entail abrogation of key
2 principles of comity and federalism, Defendant Dean Flippo respectfully requests that the Court
3 dismiss the Amended Complaint without leave to amend as to Mr. Flippo and his subordinates.
5 Respectfully submitted,
6 Dated: February 27, 2018 CHARLES J. McKEE, COUNTY COUNSEL
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By: /s/ William M. Litt
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WILLIAM M. LITT
9 Deputy County Counsel
Attorneys for Defendant DEAN FLIPPO
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Case 5:17-cv-03385-SVK Document 44 Filed 02/27/18 Page 1 of 11

1 CHARLES J. McKEE, SBN 152458

7 Attorneys for Defendant DEAN FLIPPO

9 UNITED STATES DISTRICT COURT

10 NORTHERN DISTRICT OF CALIFORNIA

13 STACY LININGER, CASE NO. 5:17-cv-03385-SVK

4 Table of Authorities ........................................................................................................................ ii

5 REPLY MEMORANDUM OF POINTS AND AUTHORITIES ...................................................1

6 I. NO INJUNCTION SHOULD ISSUE AND THE CASE SHOULD BE

12 III. CONCLUSION ....................................................................................................................7

6 Dombrowski v. Pfister (1965) 380 U.S. 479, 482 ...........................................................................3

7 Edelman v. Jordan, (1974) 415 U.S. 651 .......................................................................................5

8 E.g. Flast v. Cohen (1968) 392 U.S. 83, 96 .....................................................................................3

9 Ex Parte Young, (1908) 209 U.S. 123 ............................................................................................5

10 Golden v. Zwickler (1969) 394 U.S. 103, 109-110 .....................................................................3, 4

11 Green v. Mansour, 474 U.S. 64, 68 (1985) .....................................................................................5

27 Federal Rules of Evidence Rule 201(b) ...........................................................................................1

1 REPLY MEMORANDUM OF POINTS AND AUTHORITIES

3 I. NO INJUNCTION SHOULD ISSUE AND THE CASE SHOULD BE DISMISSED

27 Cir. 1999) 181 F.3d 410, 426-27).

26 b. Plaintiff Is Not Threatened With Imminent Harm, Which Is the Only

20 270, 273. As the Court stated in Golden v. Zwickler:

23 “immediacy and reality.”

26 a “further and far broader right to a general adjudication of unconstitutionality . . .

1 practice free speech in a political environment . . . .” The constitutional question,

2 First Amendment or otherwise, must be presented in the context of a specific live

7 But it seems to us that attempting to anticipate whether and when these

14 unable to conclude that the case-or-controversy requirement is satisfied by general

15 assertions or inferences that in the course of their activities respondents will be

16 prosecuted for violating valid criminal laws.

13 Young. As the Supreme Court later explained:

18 opposed to cases in which that relief is intended indirectly to encourage

19 compliance with federal law through deterrence or directly to meet third-party

20 interests such as compensation. As we have noted: “Remedies designed to end a

22 in assuring the supremacy of that law. But compensatory or deterrence interests

23 are insufficient to overcome the dictates of the Eleventh Amendment.” Green v.

24 Mansour, 474 U.S. 64, 68 (1985)

3 prosecutions that have not even been threatened.

13 icons Plaintiff references.

24 II. THE REQUESTED RELIEF WOULD VIOLATE ESTABLISHED PRINCIPLES

7 decided a request to enjoin future criminal proceedings as follows:

24 (1971) 401 U.S. 77, 81.

6 Dated: February 27, 2018 CHARLES J. McKEE, COUNTY COUNSEL

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