Case 5:17-cv-03385-SVK Document 47 Filed 04/04/18 Page 1 of 17

4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

7 STACY LININGER, Case No.17-cv-03385-SVK

Plaintiff,
8
ORDER GRANTING DEFENDANT
v.
9 DEAN FLIPPO'S MOTION TO DISMISS
AMENDED COMPLAINT WITHOUT
10 RONALD PFLEGER, et al., LEAVE TO AMEND
Defendants. Re: Dkt. No. 42
11

12 Before the Court is Defendant Dean Flippo’s (“Flippo”) Motion to Dismiss Plaintiff’s First
Northern District of California
United States District Court

13 Amended Complaint. ECF 42. Having heard argument on March 20, 2018, and based on the

14 papers, the Court GRANTS Flippo’s motion to dismiss without further leave to amend for the

15 reasons set forth below.

16 I. BACKGROUND

17 a. Original Complaint and Motion To Dismiss

18 The facts of Plaintiff’s original complaint are laid out in detail in this Court’s order on

19 Flippo’s first motion to dismiss. ECF 38 at 2-4. Generally, in 2013, Plaintiff placed a series of

20 phone calls to the Seaside Police Department seeking action related to issues of crime. ECF 39 at

21 ¶ 3. Flippo, as the District Attorney of Monterey County, brought criminal charges against

22 Plaintiff for violation of California Penal Code 653m(a), making annoying or harassing phone

23 calls. In 2014, Plaintiff pled nolo contendere to the charge and was placed on probation for two

24 years. In June 2015, Plaintiff placed approximately 18-20 calls over a three day period to the non-

25 emergency 911 number to follow up on an earlier report she had made of alleged sexual

26 harassment of a minor by a police officer. 1 The state then filed two cases regarding the 2015 calls.

27

28 1
The subject matter of the 2013 and 2015 calls were unrelated.
 Case 5:17-cv-03385-SVK Document 47 Filed 04/04/18 Page 2 of 17

1 The first charged a violation of her 2014 probation conditions and the second charged another

2 violation of California Penal Code 653m(a). In the first case, the state court found that Plaintiff’s

3 calls did not amount to a violation of her probation conditions. The state ultimately dismissed the

4 second case on the day trial was set to begin. ECF 39 at ¶ 28.

5 In the original complaint, Plaintiff alleged that Flippo violated her fourth and fourteenth

6 amendment rights by engaging in malicious prosecution based upon Plaintiff’s June 2015 phone

7 calls. ECF 1 at ¶ 44. Plaintiff requested injunctive relief for her malicious prosecution claim.

8 Flippo moved to dismiss Plaintiff’s complaint on the basis that Plaintiff does not have standing to

9 seek injunctive relief for her malicious prosecution claim because she failed to plead facts that

10 demonstrate a real and immediate threat of injury. ECF 11 at 9-10.

11 The Court granted Flippo’s motion to dismiss with leave to amend. ECF 38. The main

12 issues identified by the Court in its order granting Flippo’s motion to dismiss were: 1) the failure
Northern District of California
United States District Court

13 to allege that police were likely to engage in future misconduct that would require Plaintiff to

14 “police the[] police;”2 2) the failure to allege facts sufficient to show that Plaintiff is likely to call

15 the non-emergency 911 number in the future; and 3) the failure to allege facts sufficient to show

16 that Plaintiff would likely face malicious prosecution for constitutionally protected conduct.

17 Specifically, the Court relied on City of Los Angeles v. Lyons, 461 U.S. 95 (1983) and its progeny in

18 applying the exacting standard that requires Plaintiff to allege a likelihood of substantial and

19 immediate irreparable injury in order to have standing to seek injunctive relief that would require a

20 federal court to enjoin a state court to “conduct its business in a particular way.” ECF 38 at 6-7

21 (citing Hodgers–Durgin v. De La Vina, 199 F.3d 1037, 1042 (9th Cir.1999)).

22 b. Plaintiff’s First Amended Complaint

23 On January 22, 2018, Plaintiff filed a first amended complaint (“FAC”) in response to the

24 Court’s order. ECF 39. In the FAC, Plaintiff adds facts that describe the state criminal

25 proceedings with more detail, offers some expansion on her claim of future harm and the potential

26
27 2
ECF 39 at ¶ 78. Plaintiff refers to several First Amendment activities in her complaint including
28 criticizing police officers (ECF 39 at ¶ 68), insist action from the police (id.), challenging the
police (id.), etc. The Court will generally refer to the behavior as “policing the police.”
2
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1 future harm of others, and clarifies her demands for relief.

2 The majority of the new allegations provide background facts on the prosecution for

3 Plaintiff’s June 2015 calls.3 ECF 39 at ¶¶ 3-7, 20-28. Plaintiff also includes facts describing the

4 neighborhood in which she lives and states that she has “often found the need to seek the

5 assistance of government officials, including police, to address issues of public and personal

6 concern,” and “has every reason to expect that will continue.” ECF 1 at ¶ 2. Plaintiff goes onto

7 state that she “is outspoken about issues that concern her and has and intends in the future to take

8 those responsible to task for failing to act where they are supposed to and for inaction and for

9 misfeasance,” and “has every reason to expect that will continue.” Id.

10 Plaintiff also alleges that she “continues to be harmed in that reasonably based upon her

11 experience with the relentless and repeated behavior of defendant Dean Flippo . . . she fears to call

12 the police and other public officials concerning issues involving crime in her neighborhood and
Northern District of California
United States District Court

13 community and other matters of public concern.” ECF 39 at ¶ 29. Plaintiff goes on to state that

14 her “exercise of her constitutional rights and participation as a citizen in governance is chilled

15 because she reasonably fears that such conduct may be met with charges being brought by

16 defendant Dean Flippo. . ..” Id.

17 Other new allegations appear under the cause of action against Flippo. ECF 39 at ¶¶ 67,

18 76. First, Plaintiff restates the alleged policy or practice of the office of the District Attorney of

19 Monterey to prosecute citizens that accuse law enforcement of misconduct. ECF 39 at ¶ 67.

20 Plaintiff then adds that “others who behave lawfully and assert their constitutional rights,

21 including for the exercise of First Amendment rights, to challenge law enforcement action or

22 inaction, have suffered and will continue to suffer wrongful prosecution in Monterey County.”

23 ECF 39 at ¶ 76.

24 Finally, as directed by the Court, Plaintiff specifies which remedies she seeks from which

25 defendants. ECF 39 at 20 (Demand for Relief). As to Defendant Flippo, Plaintiff states that “ [a]

26
3
27 The facts included do not significantly augment the facts known by the Court when it ruled on
Flippo’s motion to dismiss the original complaint as a result of the RJN filed with Flippo’s first
28 motion to dismiss. See ECF 38 at 2 n. 1. For the same reasons as before, the Court grants
Flippo’s RJN filed in support of his current motion to dismiss the FAC. ECF 42-1.
3
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1 permanent injunction is in order to prevent the chilling effect these polices and practices have

2 upon the rights of Monterey County citizens to police their police: criticize them, hold them

3 accountable, report misfeasance by law enforcement, without fear of reprisal for their public

4 participation.” ECF 39 at ¶ 70. Plaintiff seeks to “prohibit Defendant DEAN FLIPPO, District

5 Attorney of Monterey County, his officers, employees, or agents, and those acting on his behalf or

6 in concert with him from initiating or continuing criminal prosecutions against persons who object

7 to police action, criticize police action, seek information from police, seek action from the police

8 in the absence of documented evidence that they actually physically interfered with the

9 performance of official law enforcement duties.” ECF 39 at ¶ 79.

10 c. Flippo’s Motion To Dismiss First Amended Complaint

11 Flippo now moves to dismiss Plaintiff’s claims against him, arguing that Plaintiff’s FAC

12 fails to allege facts sufficient to establish standing for injunctive relief. ECF 42. Specifically,
Northern District of California
United States District Court

13 Flippo argues that Plaintiff’s alleged fear of future malicious prosecution is speculative, and one

14 prior malicious prosecution does not support a finding that future prosecutions are likely. ECF 42

15 at 11-12. Plaintiff opposes the motion, arguing, inter alia, that her allegations are sufficient to

16 establish likelihood of future harm and that she has not engaged in advocacy efforts since June of

17 2015 because she has been chilled. ECF 43 at 16. Plaintiff also argues that, like the civil rights

18 activists opposing segregation in the South, she should have standing to challenge violations of her

19 constitutional rights. ECF 43 at 17-21.

20 II. LEGAL STANDARDS

21 The Court explained the legal standard in its order dismissing Plaintiff’s original

22 complaint, and it bears repeating here in Sections II and III.

23 Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint

24 if it fails to state a claim upon which relief can be granted. To survive a motion to dismiss, the

25 plaintiff must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl.

26 Corp. v. Twombly, 550 U.S. 544, 570 (2007). This “facial plausibility” standard requires the

27 plaintiff to allege facts that add up to “more than a sheer possibility that a defendant has acted

28 unlawfully.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In deciding whether the plaintiff has
4
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1 stated a claim, the court must assume the plaintiff’s allegations are true and draw all reasonable

2 inferences in the plaintiff’s favor. Usher v. City of L.A., 828 F.2d 556, 561 (9th Cir. 1987).

3 However, the court is not required to accept as true “allegations that are merely conclusory,

4 unwarranted deductions of fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536

5 F.3d 1049, 1055 (9th Cir. 2008). Leave to amend may be granted unless it is clear that the

6 complaint’s deficiencies cannot be cured by amendment. Lucas v. Dep’t. of Corr., 66 F.3d 245,

7 248 (9th Cir. 1995). Amendment is viewed as futile “if no set of facts can be proved under the

8 amendment to the pleadings that would constitute a valid and sufficient claim or defense.” Kest v.

9 Kest, 132 F.3d 39 (9th Cir. 1997) (citation omitted).

10 III. MALICIOUS PROSECUTION UNDER § 1983

11 a. Legal Standard: Pleading malicious prosecution under § 1983

12 Malicious prosecution requires “the institution of criminal proceedings against another
Northern District of California
United States District Court

13 who is not guilty of the offense charged” and that “the proceedings have terminated in favor of the
14 accused.” Lacey v. Maricopa Cty., 693 F.3d 896, 919 (9th Cir. 2012) (internal citation omitted).
15 A plea of nolo contendere cannot satisfy the required showing of termination of proceedings in
16 favor of the accused. Cote v. Henderson, 218 Cal. App. 3d 796, 803 (Ct. App. 1990); Muro v.
17 Simpson, No. 1:03CV6619 OWWSMS, 2006 WL 2536609, at *9 (E.D. Cal. Aug. 31, 2006).
18 In general, a claim of malicious prosecution is not cognizable under § 1983 “if process is
19 available within the state judicial systems” to provide a remedy. Bretz v. Kelman, 773 F.2d 1026,
20 1031 (9th Cir. 1985) (en banc). To sustain a § 1983 violation arising out of malicious prosecution,
21 a claimant must allege “that the defendants prosecuted her with malice and without probable
22 cause, and that they did so for the purpose of denying her equal protection or another specific
23 constitutional right.” Id.; see also Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th
24 Cir.1995); Awabdy v. City of Adelanto, 368 F.3d 1062, 1069–70 (9th Cir. 2004).
25 b. Legal Standard: Pleading injunctive relief under § 1983
26 Plaintiff, the party invoking federal jurisdiction, bears the burden of alleging specific facts
27 sufficient to establish standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
28 Furthermore, she “must demonstrate standing separately for each form of relief sought.” Friends
5
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1 of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 185 (2000). To have standing for

2 injunctive relief under § 1983, a plaintiff must allege that she is likely to suffer future injury from

3 the alleged misconduct by the defendants. See City of L.A. v. Lyons, 461 U.S. 95, 105, 110 (1983).

4 The reasonableness of a plaintiff’s apprehension depends upon the likelihood of a recurrence of

5 the allegedly unlawful conduct. It is the reality of the threat of repeated injury that is relevant to

6 the standing inquiry, not the plaintiff’s subjective apprehensions. Id. at 107 n. 8. “Past exposure

7 to illegal conduct does not in itself show a present case or controversy regarding injunctive relief

8 . . . if unaccompanied by any continuing, present adverse effects.” O’Shea v. Littleton, 414 U.S.

9 488, 495–496 (1974).

10 In Lyons, plaintiff alleged that he was stopped for a traffic violation and put into a choke

11 hold in violation of the First, Fourth, and Eighth Amendments. Lyons, 461 U.S. at 98. The

12 plaintiff brought suit under § 1983 and sought injunctive relief to bar the City of Los Angeles from
Northern District of California
United States District Court

13 using “control holds.” Id. at 98. The Court measured the likelihood of future injury by assessing

14 whether the plaintiff was realistically threatened by repetition of his interaction with the police.

15 The Court was loath to assume that plaintiff would again violate the law and thereby find himself

16 likely to be subject to the chokehold in the future. See id. at 103. Further, the Court found that an

17 additional allegation that the police routinely apply chokeholds “falls far short of the allegations

18 that would be necessary to establish a case or controversy between these parties.” Id. at 105. The

19 Court also noted that five months passed between the date of the alleged incident and the filing of

20 plaintiff’s complaint, but there were no allegations of other encounters with the police. Id. at 108.

21 Importantly, in addition to the foregoing specific facts, the Court recognized “the need for

22 a proper balance between state and federal authority [which] counsels restraint in the issuance of

23 injunctions against state officers engaged in the administration of the states’ criminal laws in the

24 absence of irreparable injury which is both great and immediate.” Id. at 112. In balancing these

25 concerns, the Court concluded that plaintiff failed to demonstrate that he would be subjected to the

26 alleged illegality again and thus did not have standing to seek injunctive relief. Id. at 112-13.

27 Distinguishing Lyons, some courts have found a realistic likelihood of future harm in cases

28 where the plaintiffs have been subjected to police action for engaging in legal activity. See, e.g.,
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1 Thomas v. Cty. of Los Angeles, 978 F.2d 504, 507–08 (9th Cir. 1992) (standing to enjoin police

2 brutality directed at innocent minority citizens); Hernandez v. Cremer, 913 F.2d 230, 234–35 (5th

3 Cir. 1990) (courts should not be reluctant to find that plaintiff will be subject to future police

4 conduct placing him at risk of injury where “the injury alleged to have been inflicted did not result

5 from an individual's disobedience of official instructions [or any other] form of misconduct”);

6 LaDuke v. Nelson, 762 F.2d 1318, 1321 (9th Cir.1985) (standing to enjoin unlawful INS searches

7 directed at innocent migrant farm workers); Nat’l Congress for Puerto Rican Rights v. City of

8 N.Y., 75 F.Supp.2d 154, 161 (S.D.N.Y. 1999) (standing exists for innocent plaintiffs who were

9 victims of unconstitutional stop and frisks).

10 Even where a plaintiff engages in legal behavior, however, injunctive relief is unavailable

11 absent a showing of a likelihood of substantial and immediate irreparable injury. Hodgers–Durgin

12 v. De La Vina, 199 F.3d 1037, 1042 (9th Cir.1999). In Hodgers-Durgin, plaintiffs sought an
Northern District of California
United States District Court

13 injunction to prevent Border Patrol agents from stopping motorists driving near the border because

14 the driver looked Mexican or Hispanic. Id. at 1039-40. Plaintiffs regularly engaged in the legal

15 behavior (i.e. driving near the border) that they alleged resulted in illegal conduct by Defendants.

16 However, despite the regularity of their legal conduct, plaintiffs alleged they had only been

17 illegally stopped once in the past ten years. In significant part, the court noted that:

18 The Supreme Court has repeatedly cautioned that, absent a threat of

immediate and irreparable harm, the federal courts should not enjoin
19 a state to conduct its business in a particular way.
20 Id. at 1042 (citations omitted). Accordingly, the court concluded that plaintiffs failed to show a

21 likelihood of substantial and immediate irreparable injury sufficient to warrant ongoing judicial

22 supervision of an agency ordinarily overseen by the executive branch. Id. at 1044.

23 Notably, when alleging harm, “allegations of a subjective ‘chill’ are not an adequate

24 substitute for a claim of specific present objective harm or a threat of specific future harm.” Laird

25 v. Tatum, 408 U.S. 1, 13-14 (1972); see also Olagues v. Russoniello, 770 F.2d 791, 797 (9th Cir.

26 1985) (applying Laird to find allegation of subjective chill insufficient to establish standing for

27 claim of injunctive relief).

28
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1 IV. ANALYSIS

2 a. Plaintiff’s Arguments Relating to Standing To Pursue a Constitutional

Challenge to the Penal Statute Are Misplaced.
3
Preliminarily, the Court notes that there appears to be a disconnect between Plaintiff’s
4
allegations against Flippo in the FAC (which necessarily direct the Court’s analysis) and
5
Plaintiff’s arguments in her opposition and at the hearing. In the FAC, Plaintiff alleges that Flippo
6
maliciously prosecuted Plaintiff with the intent to deprive her of her First Amendment right to
7
make phone calls to “police the police.” ECF 39 at ¶¶ 60-79. The injunctive relief available for a
8
malicious prosecution claim is to enjoin a defendant from engaging in future malicious
9
prosecution against a plaintiff with the intent to deprive him or her constitutional rights. See
10
Lamb-Weston, Inc. v. McCain Foods, Ltd., 941 F.2d 970, 974 (9th Cir. 1991) (“Injunctive relief . .
11
. must be tailored to remedy the specific harm alleged.”).
12
Northern District of California

Plaintiff’s opposition, however, is not directed at allegedly malicious prosecution policies

United States District Court

13
of the District Attorney or the likelihood that such malicious prosecution will occur in the future.
14
Instead, Plaintiff goes to great lengths to compare this case to cases where courts have held that
15
certain statutes violated the First Amendment. See, e.g., ECF 43 at 11-12 (discussing City of
16
Houston v. Hill, 482 U.S. 451, in which the Supreme Court held that a city ordinance which made
17
it illegal to, in any manner, oppose, molest, abuse or interrupt a police officer in the execution of
18
his duty was unconstitutionally overbroad).4 Similarly, at oral argument, Plaintiff relied on
19
Zwickler v. Koota, 389 U.S. 241 (1967), and Dombrowski v. Pfister, 280 U.S. 479 (1965), both of
20
which address constitutional challenges to state penal statutes, and both of which explain that in
21
certain circumstances, a plaintiff need not wait for a prosecution under those statutes to be
22
completed before challenging the constitutionality of a statute. Zwickler, 389 U.S. at 253-54
23

24
4
25 The opposition also includes a lengthy discussion of prosecutions of civil rights leaders opposing
segregation. Again, the comparison is misplaced. Plaintiff points out that many convictions were
26 overturned as evidence that this Court should not require a showing that Plaintiff has been
maliciously prosecuted more than once. However, the standard for standing that Plaintiff urges is
27 again the standard for challenging a statute as violating the First Amendment, not standing for
injunctive relief to prevent future malicious prosecutions. See Bell v. Keating, 697 F.3d 445, 454
28 (7th Cir. 2012) (explaining showing required for standing to challenge a statute on First
Amendment grounds).
8
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1 (addressing the limits of the abstention doctrine and a court’s ability to retain jurisdiction in an

2 action seeking declaratory relief even where special circumstances justifying injunctive relief may

3 not exist); Dombrowski, 280 U.S. at 486 (explaining the First Amendment harms that may result

4 from the inception of a prosecution as sufficiently supporting claims seeking injunctive relief

5 where plaintiff challenged enforcement of statutes as a violation of the Civil Rights Act and

6 challenged statutes as overly broad and vague regulations of expression). These cases do not

7 support Plaintiff’s claim against Flippo as alleged in the FAC and do not address her burden to

8 establish standing to pursue injunctive relief for the alleged malicious prosecution. A claim for

9 malicious prosecution is grounded in the intent of a defendant to deprive the plaintiff of a

10 constitutional right. See Usher, 828 F.2d at 561; Neylon v. Cty. of Inyo, No. 1:16-CV-0712 AWI

11 JLT, 2017 WL 999226, at *6 (E.D. Cal. Mar. 14, 2017). A claim challenging the constitutionality

12 of a statute is grounded in whether a statute, whether intended to or not, infringes on constitutional

Northern District of California
United States District Court

13 rights. See, e.g., City of Houston, Tex. v. Hill, 482 U.S. 451, 458 (1987).

14 In short, in an action for malicious prosecution, the question is not squarely whether the

15 behavior for which Plaintiff was prosecuted is protected by the First Amendment.5 Rather, the

16 question is whether Plaintiff’s rights were violated by a prosecution that was brought without

17 probable cause and with the intent to violate the Plaintiff’s First Amendment rights. And more

18 specifically, in the motion to dismiss at bar, the question is whether there are facts sufficient to

19 establish that it is so likely that Flippo will pursue malicious prosecutions against the Plaintiff in

20 the future such that Plaintiff has standing to pursue injunctive relief that would require a federal

21 court to enjoin a state prosecutor.

22 With this distinction in mind, the Court turns to whether Plaintiff’s FAC has alleged facts

23 sufficient to establish a likelihood that she will again be maliciously prosecuted, such that she has

24 standing to seek a federal injunction of a state prosecutor.

25 //

26 //

27

28 5
Flippo has not challenged the FAC on this basis.
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b. Plaintiff Has Failed To Allege Facts that Establish Standing To Pursue

1 Injunctive Relief For Her Malicious Prosecution Claim.
2 Plaintiff alleges that Flippo maliciously prosecuted Plaintiff with the intent to deprive her
3 of her First Amendment rights for making a series of phone calls in June 2015. The injunctive
4 relief that is available for this claim is to enjoin Flippo from maliciously prosecuting her with the
5 intent to deprive her of First Amendment rights. Plaintiff must therefore allege facts sufficient to
6 show a likelihood that Flippo will again maliciously prosecute her with the intent to deprive her of
7 First Amendment rights.
8 In its order dismissing Plaintiff’s original complaint, this Court held that Plaintiff was
9 required to allege facts sufficient to show likelihood that 1) she will again “police the police” and
10 2) she will again face malicious prosecution for that act. The need for a proper balance between
11 state and federal authority that requires an irreparable injury to be “both great and immediate” was
12 at the foreground of this Court’s analysis. See ECF 38 at 8-9. Preliminarily, the Court held that
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13 under Lyons, the Court must assume that the police will “conduct their activities within the law,”
14 and therefore not require policing. ECF 38 at 8 (citing Lyons, 461 U.S. at 103). Plaintiff argued
15 that she had established a likelihood of future harm by showing one occasion in June 2015 in
16 which she called the non-emergency 911 number to report police misconduct. Granted, she called
17 18-20 times over a three day period, however these calls together formed the basis for the charges
18 the District Attorney brought against her. Thus, with only one example of when she engaged in
19 activity that allegedly resulted in malicious prosecution, the Court held that Plaintiff failed to meet
20 her burden to show a great an immediate risk of irreparable injury that would warrant a federal
21 court to monitor state officers engaged in the administration of the state’s criminal laws. ECF 38
22 at 9.
23 While Plaintiff’s FAC includes additional facts, the core construct of her complaint, still
24 missing critical components, remains the same: Plaintiff seeks injunctive relief based on the calls
25 she made in June 2015 and the alleged malicious prosecution that followed.6 She does not allege
26
27 6
While Plaintiff argues that her 2014 prosecution should be included in this analysis, as explained
28 below, the 2014 prosecution to which she pled nolo contendere is not an example of a malicious
prosecution. See infra section IV.b.i.
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1 facts demonstrating that police are likely to engage in misconduct again or have at any time since

2 June 2015. She does not allege facts that establish a reasonable inference that she is likely to call

3 the non-emergency 911 number again to report such misbehavior or that she has had a reason to

4 since June 2015. And she does not allege facts supporting a conclusion that she would be

5 maliciously prosecuted for calling to “police the police” again, that she has been maliciously

6 prosecuted since June 2015, or that anyone besides Plaintiff has ever been maliciously prosecuted

7 for engaging in the same exercise of their rights. Simply put, Plaintiff’s FAC suffers the same

8 deficiencies as her original complaint. The Court cannot conclude that one instance of malicious

9 prosecution for one report of misconduct supports finding a likelihood of recurrence of that

10 alleged illegal conduct.

11 With these deficiencies as background, the Court addresses the new allegations specifically

12 below.
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13 i. Plaintiff’s allegations regarding her 2014 prosecution do not

support standing.
14
In the FAC, Plaintiff added allegations describing phone calls she made in 2013 to the
15
Seaside Police Department concerning crime in her neighborhood. ECF 39 at ¶ 3. Plaintiff faced
16
criminal charges for these calls to which she pled nolo contendere in 2014. ECF 39 at ¶¶ 4-7. In
17
her opposition to the motion to dismiss her FAC, Plaintiff argues that she has been prosecuted
18
“again and again” for the exercise of her constitutional rights. ECF 43 at 17. At oral argument,
19
counsel argued that the 2014 prosecution supported the likelihood that Plaintiff would again be
20
prosecuted. Assumed in Plaintiff’s argument is that the calls she made in 2013 that led to her
21
2014 prosecution should be evaluated in the same light as the calls she made in 2015 that led to
22
the alleged malicious prosecution. However, the two sets of calls are not the same. The 2013
23
calls led to a prosecution to which Plaintiff pled nolo contendere. In other words, those calls were
24
found to have been made unlawfully. See United States v. Hadnot, 439 F. App'x 654, 656 (9th
25
Cir. 2011) (explaining that nolo contendere is the functional equivalent of a guilty plea for
26
purposes of sentencing). Conversely, the 2015 calls were found not to violate the conditions of
27
Plaintiff’s probation, and the remaining charges were dismissed. The 2015 calls were made
28
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1 lawfully.

2 This distinction is critical for two reasons: First, under Lyons and its progeny, the Court

3 will not assume that Plaintiff will again engage in calls similar to the 2013 calls because the Court

4 is loath to assume that plaintiff would again violate the law. See supra section III.b. Second, the

5 2014 prosecution cannot support an alleged pattern of malicious prosecution because the

6 proceedings did not terminate in favor of Plaintiff. See Sanders v. Matthew, No. 15-CV-395 LJO-

7 EPG, 2016 WL 7210115, at *4 (E.D. Cal. Dec. 12, 2016) (dismissing the plaintiff's malicious

8 prosecution claim where the plaintiff pleaded nolo contendere to a misdemeanor charge, resulting

9 in a felony charge being dismissed, because the allegations showed that the proceedings had not

10 “terminated in such a manner as to indicate his innocence”). A malicious prosecution action

11 requires a showing that “the proceedings have terminated in favor of the accused.” Lacey, 693

12 F.3d at 919; see supra section III.b. Because the 2014 action did not terminate in favor of
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United States District Court

13 Plaintiff, it cannot serve as an example of malicious prosecution to support finding a likelihood

14 that Plaintiff is realistically threatened by repetition of malicious prosecution in the future.

15 ii. Plaintiff’s allegations regarding her 2015 prosecution are not

sufficient to establish a likelihood of future malicious prosecution.
16
While Plaintiff includes additional facts regarding the prosecution for her June 2015 calls,
17
these allegations do not establish additional instances of malicious prosecutions that would lead to
18
a finding of likelihood of future harm. Nor do the added facts suggest any indication that Flippo
19
intends to continue to engage in malicious prosecutions. Lujan v. Defenders of Wildlife, 504 U.S.
20
555, 564 (1992) (“Past exposure to illegal conduct does not itself show a present case or
21
controversy regarding injunctive relief if unaccompanied by any continuing, present adverse
22
effects.”) (internal quotations omitted); see also Gest v. Bradbury, 443 F.3d 1177, 1181 (9th Cir.
23
2006) (plaintiff must show that he or she is “realistically threatened by a repetition of the
24
violation”) (internal citations and quotations omitted, emphasis in original). Plaintiff’s allegations
25
describing her confusion regarding the basis of the prosecution do not establish any additional
26
instances of calls she made or additional prosecutions she faced. Thus, Plaintiff remains where
27
she started: with one prior instance of alleged malicious prosecution to support her argument that
28
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1 she has standing to pursue injunctive relief for her malicious prosecution claim. As the Court

2 explained above and in its order on Flippo’s first motion to dismiss, one prior bad act is not

3 enough to lead to reasonable inference that she will again face malicious prosecution in the future.

4 See supra section IV.b.; ECF 38 at 8-10.

5 iii. Plaintiff’s new allegations generally describing her conduct are

insufficient to establish a threat of future harm.
6
Plaintiff’s statements that she often sought the assistance of government officials,
7
including police, and is outspoken about issues that concern her are not sufficient to establish
8
standing. Plaintiff’s general, conclusory allegations of a frequent “need to seek assistance of
9
government officials” and of being “outspoken” are too vague to support an inference that she
10
would be likely to call to “police the police” in the future. Plaintiff fails to give any specific
11
examples of times when she has been outspoken regarding police misconduct, or times when she
12
Northern District of California

has legally sought the assistance of police officers besides the June 2015 occasion alleged in her
United States District Court

13
complaint.7 Without more, the Court cannot infer that she would be likely to call the police in the
14
future.
15
Even assuming that Plaintiff does regularly engage in the conduct for which she claims she
16
was prosecuted, she points only to malicious prosecution for one incident of making phone calls to
17
the non-emergency 911 number in June 2015. In Hodgers-Durgin, one plaintiff alleged that he
18
saw border patrol agents nearly every day and the other stated she saw them “all over the place.”
19
199 F.3d at 1044. Yet, each were stopped only once in the past 10 years. Id. The Court
20
concluded that this factual record did not support a finding of future injury sufficient to establish
21
standing to seek injunctive relief. Id. Thus, accepting Plaintiff’s claim that she has “often found
22
the need to seek assistance of government officials,” and “is outspoken about issues that concern
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her,” Plaintiff’s allegation of being maliciously prosecuted for only one incident of calls in June
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2015, despite her alleged regularity of seeking assistance of the police and being outspoken, does
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not support an inference that she is likely to face malicious prosecution in the future.
26
27 7
As explained above, the calls that Plaintiff made in 2013 that led to her 2014 prosecution do not
28 provide another example of legal behavior that led to the deprivation of her constitutional rights as
Lyons requires. See supra section IV.b.i.
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iv. Plaintiff’s allegations regarding future conduct are speculative and

1 conclusory.
2 Plaintiff’s allegation that she has “every reason to expect that” she will continue to seek
3 assistance of government officials and to be outspoken about issues that concern her does not
4 establish a likelihood of future harm. This bare allegation, without more, is not sufficient to
5 establish a likelihood that Plaintiff will engage in the behavior in the future and that she will be
6 prosecuted for the behavior. Plaintiff does not cite any other examples of instances where she has
7 called the non-emergency 911 number, or 911,8 to report misconduct of police officers. Thus, her
8 allegation would require the Court to speculate that such an occasion may arise, that she would be
9 aware of the misconduct, that she would call to report the misconduct, and that she would then
10 face prosecution for her call. These assumptions are simply too speculative and rely on too many
11 contingencies to be sufficient to establish standing to seek injunctive relief. See Nelsen v. King
12 Cty., 895 F.2d 1248, 1252 (9th Cir. 1990) (citing City of S. Lake Tahoe v. Ca. Tahoe Regional
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United States District Court

13 Planning Agency, 625 F.2d 231, 233 (9th Cir.) cert. denied, 449 U.S. 1039 (1980)) (holding that
14 where possibility of future harm was based on multiple contingencies, plaintiff fails to establish a
15 threat of future harm sufficient to confer standing when seeking injunctive relief).
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v. Plaintiff’s allegations of subjective chilling are insufficient to
17 establish future harm.

18 Plaintiff’s allegation that her “exercise of her constitutional rights and participation as a

19 citizen in governance is chilled because she reasonably fears that such conduct may be met with

20 charges being brought by defendant Dean Flippo” also fails to cure her standing defect. Mere

21 “allegations of a subjective ‘chill’” do not suffice to establish future harm, or even present harm,

22 sufficient to confer standing. Laird, 408 U.S. at 13–14; see also Olagues v. Russoniello, 770 F.2d

23 791, 797 (9th Cir. 1985) (denying standing to seek equitable relief where chilling was alleged).

24 See also Lyons, 461 U.S. at 107 n. 8 (“It is the reality of the threat of repeated injury that is

25 relevant to the standing inquiry, not the plaintiff's subjective apprehensions. The emotional

26
8
27 Plaintiff’s probation included conditions that Plaintiff not call 911 without a true, valid, and
legitimate emergency, and that Plaintiff not call 911 repeatedly. ECF 42-1 at 5-6 (conditions of
28 probation). However, her probation ended in January 2016, and thus she may call 911 in the
future to report police misconduct. See id.
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1 consequences of a prior act simply are not a sufficient basis for an injunction absent a real and

2 immediate threat of future injury by the defendant.”).

3 Plaintiff spends a great deal of her opposition arguing that facing prosecution for engaging

4 in constitutional activity is similar to the prosecutions of those civil rights icons that fought against

5 segregation in the South. ECF 43 at 17-21. She appears to use this comparison to try to urge the

6 importance of her ability to bring her claim against Flippo. Id. However, the majority of her

7 argument is directed to the importance of her First Amendment rights, of which there is no

8 question. Instead, the relevant inquiry here is whether Plaintiff has standing to enjoin Flippo from

9 maliciously prosecuting her with the intent to deprive her of First Amendment rights. See supra

10 section IV.a. While an element of her malicious prosecution claim under § 1983 is to demonstrate

11 the intent of the prosecutor to deny her First Amendment rights, Plaintiff’s conclusory allegation

12 of subjective chilling does not by itself suffice to establish a likelihood of substantial and
Northern District of California
United States District Court

13 immediate irreparable injury or that Flippo intended to create such a chilling effect.9 See Lyons,

14 461 U.S. at 111 (plaintiff must show a “real or immediate threat that plaintiff will be wronged

15 again”). The unquestionable importance of Plaintiff’s First Amendment rights does not establish a

16 real or immediate threat that she will again call the non-emergency 911 number and be prosecuted

17 for that behavior.

18 To the extent that Plaintiff argues that she cannot plead other instances where she has

19 called to police the police because she has been chilled, Plaintiff’s statement that she is chilled

20 does not support a likelihood that she would have occasion to call the “police the police” again.

21 Plaintiff offers no more specificity than she “is chilled.” ECF 39 at ¶ 29. She does not, for

22 example, cite to instances when she would have called the police to report police misconduct but

23 did not because of the alleged chilling.

24
9
25 Indeed, an allegation of subjective chill may not be enough to establish standing even for a First
Amendment retaliation claim. See Laird, 408 U.S. at 13. Rather, an allegation of chilling is
26 relevant to the first element of a First Amendment claim: that a defendant’s action “would chill or
silence a person of ordinary firmness from future First Amendment activities.” Skoog v. County of
27 Clackamas, 469 F.3d 1221, 1232 (9th Cir.2006) (internal quotation marks and citation omitted).
“‘Chilling effect’ is cited as the reason why the governmental imposition is invalid rather than as
28 the harm which entitles the plaintiff to challenge it.” United Presbyterian Church in the U.S.A. v.
Reagan, 738 F.2d 1375, 1378–79 (D.C. Cir. 1984).
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1 Even if Plaintiff could plead such occasions, the exercise would be futile. Such specificity

2 may be suited for a case challenging the constitutionality of the state criminal statute. See supra

3 section IV.a. However here, even if plaintiff identifies specific instances of being chilled, she will

4 still fail to identify additional instances of malicious prosecution. As explained above,

5 establishing the likelihood of future malicious prosecutions is essential to support this Court’s

6 jurisdiction to enjoin a state prosecutor from maliciously prosecuting plaintiff.

7 In sum, Plaintiff’s FAC is devoid of any facts that it is likely, rather than speculative or

8 hypothetical, that she will continue to find occasions to call governmental entities to “police the

9 police” and that such conduct would be met with malicious prosecution.

10 V. FUTILITY OF AMENDMENT

11 As explained above, to have standing to pursue injunctive relief for her malicious

12 prosecution claim, Plaintiff must allege more than one incident of malicious prosecution. Despite
Northern District of California
United States District Court

13 having had two opportunities to do so, Plaintiff has failed to add allegations of another incident of

14 malicious prosecution other than the prosecution that arose from her June 2015 calls. Presumably,

15 if there were another prosecution to plead, Plaintiff would have asserted it in her prior pleadings.

16 Without another malicious prosecution, Plaintiff cannot plead any facts to support standing.

17 Therefore, the Court dismisses the claim against Flippo without leave to amend. See Allen v. City

18 of Beverly Hills, 911 F.2d 367, 373 (9th Cir. 1990) (“The district court’s discretion to deny leave

19 to amend is particularly broad where plaintiff has previously amended the complaint” (quoting

20 Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th Cir. 1989))).

21 //

22 //

23 //

24 //

25 //

26 //

27 VI. CONCLUSION

28 For the foregoing reasons, Defendant Flippo’s motion to dismiss Plaintiff’s FAC is granted
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1 as to Plaintiff’s claim for malicious prosecution as set forth in her third cause of action and this

2 claim is dismissed without leave to amend.

3 SO ORDERED.

4 Dated: April 4, 2018

5
SUSAN VAN KEULEN
6 United States Magistrate Judge
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