YVONNE GONZALEZ ROGERS UNITED STATES DISTRICT COURT JUDGE

ORDER GRANTING MOTIONS TO DISMISS

Re: Dkt. Nos. 18, 25

Pro se plaintiff Gerald Len Cooley brings this civil rights action against defendants the City of Walnut Creek (the "City"), unnamed Walnut Creek Police Department ("WCPD") officers ("WCPD Does 1-10"), the County of Contra Costa (the "County"), deputy district attorney Alison Chandler ("DDA Chandler"), and district attorney Mark Peterson ("DA Peterson") pursuant to 42 U.S.C. section 1983 ("Section 1983") for violation of his constitutional rights. (See generally Third Amended Civil Rights Complaint ("3AC"), Dkt. No. 27.)

Now before the Court are: (1) the County's, DDA Chandler's, and DA Peterson's (together, the "County Defendants") motion to dismiss the 3AC pursuant to Federal Rule of Civil Procedure 12(b)(6) (Dkt. No. 18 ("County Defendants' MTD")); and (2) the City's motion to dismiss the 3AC pursuant to Rule 12(b)(6) and for a more definite statement pursuant to Rule 12(e) (Dkt. No. 25 ("City's Motion")).

Having carefully considered the papers submitted and the pleadings in this action, and for the reasons set forth below, the Court GRANTS the County Defendants' and City's motions.

I. BACKGROUND

Plaintiff filed the initial complaint in this action on February 1, 2018. (Dkt. No. 1.) On March 9, 2018, he filed an amended complaint. (Dkt. No. 8.) The case was subsequently reassigned to the undersigned on March 21, 2018, and plaintiff thereafter filed a motion for leave to file a second amended complaint, which this Court granted. (Dkt. Nos. 12, 13, 15.) On March 29, 2018, DDA Chandler and the County file their motion to dismiss, and plaintiff filed a motion for leave to file the operative 3AC two weeks later. (Dkt. No. 23). On April 23, 2018, the City filed its motion to dismiss and for a more definite statement. The following day, the Court granted plaintiff's motion for leave to file the 3AC and, in light of the City's motion and because the 3AC tracked the prior complaint with the exception of two added paragraphs regarding DA Peterson, the Court allowed defendants to file supplements to their pending motions, rather than entirely new motions to dismiss. (Dkt. No. 26.) The Court afforded plaintiff the opportunity to respond to the County Defendants' and the City's supplemental filings.

In the 3AC, plaintiff alleges that he was arrested on October 5, 2016 by WCPD Does 1-10 for being an accessory to murder after the fact in violation of California Penal Code ("Penal Code") section 32. (3AC at 2.) Due to "unreasonable pressure from [WCPD Does 1-10]," plaintiff alleges that DDA Chandler thereafter filed a felony complaint against him, which stated that plaintiff knowingly drove the shooter away from the scene of the murder. (Id.)

Plaintiff asserts claims against WCPD Does 1-10 and DDA Chandler for malicious prosecution in violation of his Fourth Amendment rights. (Id. at 1 ¶ 1.) Specifically, he alleges that DDA Chandler conspired with WCPD Does 1-10 to "knowingly withhold cellphone records that [WCPD Does 1-10] obtained during their investigation, specifically, cellphone pings that exonerated [p]laintiff." (Id. at 2.) Plaintiff was incarcerated for approximately four months and alleges that he was "prosecuted with malice and without probable cause . . . ." (Id.) According to plaintiff, "[DDA] Chandler's decision to file charges and suppress exonerating evidence in [p]laintiff's favor was the direct result of unreasonable pressure by the [WCPD Does 1-10]." (Id. at 3.) The criminal case against plaintiff was ultimately dismissed on May 22, 2017. (Id).

In regard to the County, plaintiff claims that it "has a longstanding practice, pattern[,] policy[,] or custom of allowing [its] deputy district attorneys to file felony and misdemeanor criminal charges against defendants without probable cause and maliciously prosecute them." (Id.) DA Peterson allegedly "implemented a practice, policy[,] or custom of withholding Brady evidence and failed to train or retrain his deputy district attorneys to disclose exonerating evidence." (Id.)

As to the City, plaintiff alleges that it has a "longstanding practice, pattern[,] policy[,] or custom of allowing [its] police officers to arrest citizens without probable cause and maliciously prosecute them" for "violent crimes such as murder and assault." (Id.) Plaintiff asserts that the City's "indifference stems from an entrenched posture of deliberate indifference to the constitutional right of primarily the minority citizens who live or visit the City of Walnut Creek." (Id.)

II. LEGAL STANDARD

A. Motion to Dismiss Pursuant to Federal Rule of Civil Procedure 12(b)(6)

Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. To survive a motion to dismiss, the plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). This "facial plausibility" standard requires the plaintiff to allege facts that add up to "more than a sheer possibility that a defendant has acted unlawfully." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). In deciding whether the plaintiff has stated a claim, a court must assume that plaintiff's allegations are true and draw all reasonable inferences in the plaintiff's favor. Usher v. City of L.A., 828 F.2d 556, 561 (9th Cir. 1987). However, the court is not required to accept as true "allegations that are merely conclusory, unwarranted deductions of fact, or unreasonable inferences." In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir. 2008) (internal quotation marks omitted). Leave to amend must be granted unless it is clear that the complaint's deficiencies cannot be cured by amendment. Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th Cir. 1995).

B. Motion for a More Definite Statement Pursuant to Federal Rule of Civil Procedure 12(e)

Under Federal Rule of Civil Procedure 12(e), "[a] party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response." Fed. R. Civ. P. 12(e). A motion filed pursuant to Rule 12(e) "must point out the defects complained of and the details desired." Id. Generally, "[m]otions for a more definite statement are viewed with disfavor, and are rarely granted." Cellars v. Pac. Coast Packaging, Inc., 189 F.R.D. 575, 578 (N.D. Cal. 1999). For example, "[s]uch a motion is likely to be denied where the substance of the claim has been alleged, even though some of the details are omitted." True v. Am. Honda Motor Co., Inc., 520 F. Supp. 2d 1175, 1180 (C.D. Cal. 2007) (internal quotation marks omitted). By contrast, "[a] Rule 12(e) motion is more likely to be granted where the complaint is so general that ambiguity arises in determining the nature of the claim or the parties against whom it is being made." Sagan v. Apple Computer, Inc., 874 F. Supp. 1072, 1077 (C.D. Cal. 1994).

III. DISCUSSION

A. Overview

Section 1983 provides a cause of action against any person, including municipalities, counties, and subdivisions thereof, for the "deprivation of any rights, privileges, or immunities secured by the Constitution and laws." 42 U.S.C. § 1983; see also Monell v. Dep't of Soc. Servs. of N.Y., 436 U.S. 658, 690 (1978). "Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred." Albright v. Oliver, 510 U.S. 266, 271 (1994) (internal quotation marks omitted). To prevail on a Section 1983 claim, a plaintiff must show: (1) the deprivation of any rights, privileges, or immunities secured by the Constitution; (2) by any person acting under the color of state law. 42 U.S.C. § 1983.

Local government entities, however, cannot be held liable under Section 1983 "unless action pursuant to official municipal policy of some nature caused a constitutional tort." Monell, 436 U.S. at 691. In other words, local government entities may only be sued under Section 1983 when "execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury . . . ." Id. at 694. Accordingly, to prevail on a Section 1983 claim against a local government entity, plaintiffs must sufficiently allege that:

(1) they were deprived of their constitutional rights by defendants and their employees acting under color of state law; (2) that the defendants have customs or policies which amount[] to deliberate indifference to their constitutional rights; and (3) that these policies are the moving force behind the constitutional violation[s].

B. Section 1983 Malicious Prosecution Claim Against DDA Chandler and WCFPD Does 1-10

Plaintiff alleges malicious prosecution against DDA Chandler and WCPD Does 1-10 in violation of his Fourth Amendment rights. To establish a malicious prosecution claim under Section 1983, a plaintiff must allege: (1) the initiation of a prosecution which ended in a termination favorable to the plaintiff; (2) lack of probable cause; (3) malice; and (4) that the prosecution was done for the purpose of denying the plaintiff's constitutional rights. See Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004); Usher v. City of L.A., 828 F.2d at 562. "Ordinarily, the decision to file a criminal complaint is presumed to result from an independent determination on the part of the prosecutor, and thus, precludes liability for those who participated in the investigation or filed a report that resulted from the initiation of proceedings." Awabdy, 368 F.3d at 1067. "However, the presumption of prosecutorial independence does not bar a subsequent § 1983 claim against state or local officials who improperly exerted pressure on the prosecutor, knowingly provided misinformation to him, concealed exculpatory evidence, or otherwise engaged in wrongful or bad faith conduct that was actively instrumental in causing the initiation of legal proceedings." Id.

The County Defendants contend that DDA Chandler is "absolutely immune" from liability for plaintiff's malicious prosecution claim. (County Defendants' MTD at 5.) As for WCPD Does 1-10, the City argues that plaintiff's claim against them fails for several reasons, namely that plaintiff: (1) cannot base a Section 1983 malicious prosecution claim on an allegation that exculpatory evidence was withheld during a criminal prosecution; (2) fails to allege specific facts rebutting the presumption of prosecutorial independence; and (3) fails to plead sufficiently either that he was prosecuted with malice, that the criminal action against him was terminated in his favor, or how he was prosecuted without probable cause. The Court addresses each argument in turn.

Initially, the County Defendants are correct that plaintiff's claim for malicious prosecution against DDA Chandler is barred under the doctrine of prosecutorial immunity, but only as asserted against her in her individual capacity. See, e.g., Ismail v. Cty. of Orange, 917 F. Supp. 2d 1060, 1067-68 (C.D. Cal. 2012). This immunity applies to conduct "intimately associated with the judicial phase of the criminal process," and protects prosecutors when they perform traditional activities related to the initiation and presentation of criminal prosecutions. Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976); accord Botello v. Gammick, 413 F.3d 971, 976 (9th Cir. 2005). Because plaintiff's allegations against DDA Chandler relate to her "decision to file charges and suppress exonerating evidence in plaintiff's favor" (3AC at 3), they pertain to actions undertaken by a prosecutor in advance of a criminal prosecution. Accordingly, DDA Chandler is entitled to absolute prosecutorial immunity with respect to plaintiff's Section 1983 malicious prosecution claim against her in her individual capacity. Cf. Ohman v. Cty. of Orange, 460 F. App'x 649, 650 (9th Cir. 2011) (affirming district court's dismissal of Section 1983 action on grounds of absolute prosecutorial immunity for "filing of charges on the basis of evidence in the file").

Plaintiff's Section 1983 malicious prosecution claim against DDA Chandler in her official capacity fares no better. As set forth above, plaintiff's claims against DDA Chandler all appear to pertain to her actions in prosecuting criminal charges against plaintiff. In California, a deputy district attorney acts on behalf of the state when preparing for, and conducting, criminal prosecutions. See People v. Garcia, 39 Cal. 4th 1070, 1081 (2006) (noting the district attorney's office represents the State of California in criminal prosecutions); see also Goldstein v. City of Long Beach, 715 F.3d 750, 759 (9th Cir. 2013) ("It is clear that the district attorney acts on behalf of the state when conducting prosecutions . . . ."); Weiner v. San Diego Cty., 210 F.3d 1025, 1030 (9th Cir. 2000) ("[U]nder California law[,] a county district attorney acts as a state official when deciding whether to prosecute an individual."). In addition, the Eleventh Amendment bars a plaintiff's federal civil rights claims for monetary damages against a state official in her official capacity. That is, the Eleventh Amendment "bars actions against state officers sued in their official capacities for past alleged misconduct involving a complainant's federally protected rights, where the nature of the relief sought is retroactive, i.e., money damages . . . ." Bair v. Krug, 853 F.2d 672, 675 (9th Cir. 1988). To overcome this Eleventh Amendment bar, the state's consent or Congress's intent must be "unequivocally expressed." Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 99 (1984). While California has consented to be sued in its own courts pursuant to the California Tort Claims Act, such consent does not constitute consent to suit in federal court. See BV Eng'g v. Univ. of Cal., L.A., 858 F.2d 1394, 1396 (9th Cir. 1988). Finally, Congress has not repealed state sovereign immunity against suits brought under Section 1983. Accordingly, plaintiff may not seek monetary damages against DDA Chandler in her official capacity arising from her actions in prosecuting plaintiff. Plaintiff's Section 1983 malicious prosecution claim against DDA Chandler is thus DISMISSED WITH PREJUDICE.

Next, the Court disagrees with the City's contention that a plaintiff's malicious prosecution claim cannot be based on an allegation that exculpatory evidence was withheld during a criminal prosecution. (See City's Motion at 10.) A claim for malicious prosecution may be stated not only against prosecutors but also police officers and investigators who wrongfully caused the plaintiff's prosecution, such as by "knowingly provid[ing] misinformation . . . , conceal[ing] exculpatory evidence, or otherwise engag[ing] in wrongful or bad faith conduct that was actively instrumental in causing the initiation of legal proceedings." Awabdy, 368 F.3d at 1067 (emphasis supplied); see also Trulove v. City & Cty. of S.F., No. 16-050-YGR, 2016 WL 5930634, at *8 (N.D. Cal. Oct. 12, 2016). However, the Court agrees with the City that, to the extent plaintiff's malicious prosecution claim arises from his substantive due process rights under the Fourteenth Amendment, the claim fails. Awabdy held that Section 1983 malicious prosecution claims cannot be based on a violation of an individual's substantive due process rights, namely:

The principle that Albright establishes is that no substantive due process rights exist under the Fourteenth Amendment to be free from prosecution without probable cause. . . . In rejecting Albright's reliance on substantive due process as the basis for his malicious prosecution claim, the plurality explained: "Where a particular Amendment 'provides an explicit textual source of constitutional protection' against a particular sort of government behavior, 'that Amendment', not the more generalized notion of 'substantive due process,' must be the guide for analyzing these claims." . . . In Albright, the plurality suggested that the plaintiff in that case might have set forth a proper § 1983 claim had he argued that the state's pretrial deprivations of his personal liberty violated the Fourth Amendment.

The City contends that dismissal of plaintiff's malicious prosecution claim against WCPD Does 1-10 is required because there are no allegations that would overcome the presumption of prosecutorial independence, including "specific facts indicating what the pressure is and how it was actively instrumental in causing the initiation of legal proceedings." (City's Motion at 5-6 (internal quotation marks omitted).) The City does not persuade. As plaintiff correctly notes, "the presumption of independent prosecutorial judgment in the charging decision is an evidentiary presumption applicable at the summary judgment stage to direct the order of proof; it is not a pleading requirement to be applied to a motion to dismiss, before discovery has taken place . . . ." Galbraith v. Cty. of Santa Clara, 307 F.3d 1119, 1126 (9th Cir. 2002) (emphasis supplied) (reversing district court's order dismissing complaint for failure to plead specific facts to overcome presumption of prosecutorial independence; explaining that "the district court should not have converted an evidentiary presumption applicable to the order of proof into a heightened standard for pleading"); see also Dkt. No. 37 at 5. Thus, contrary to the City's argument, plaintiff is not required at this stage to rebut the presumption of prosecutorial independence in order to allege properly a claim for malicious prosecution.

Plaintiff's malicious prosecution claim against WCPD Does 1-10 nevertheless fails. First, plaintiff fails to plead sufficient facts to support a finding that WCPD Does 1-10 maliciously prosecuted him without probable cause. See Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir. 1995) (holding claim of malicious prosecution requires showing that plaintiff was "prosecuted without probable cause"). Plaintiff offers no factual allegations to support his conclusory assertions. Plaintiff merely alleges that he was "prosecuted . . . without probable cause before being released." (3AC at 2.) Such a bald allegation is insufficient as a matter of law. See Iqbal, 556 U.S. at 678 (holding "[t]hreadbare recitals of the elements of a cause of action, supported by merely conclusory statements, do not suffice" to state a valid claim for relief; further holding courts are "not bound to accept as true a legal conclusion couched as a factual allegation"). Plaintiff must allege why the case initiated against him was objectively untenable. See Downey Venture v. LMI Ins. Co., 66 Cal. App. 4th 478, 497-98 (1998).

Similarly, plaintiff's allegation that he was "prosecuted with malice," (3AC at 2), is conclusory and inadequate to state a claim. Aside from his allegation regarding the withholding of exculpatory evidence, plaintiff does not describe any specific facts to make it plausible that WCPD Does 1-10 acted for an improper purpose unrelated to bringing a "perceived guilty person to justice . . . ." Downey Venture, 66 Cal. App. 4th at 494; see also Moore v. City of Oakland, No. 14-cv-05637-JSC, 2015 WL 333058, at *3 (N.D. Cal. Jan. 23, 2015) ("Plaintiff has alleged only that the officers 'act[ed] with malice' in initiating the charges against him . . . , which is not enough."). In a similar vein, plaintiff offers no more than conclusory allegations to show that WCPD Does 1-10 acted for the purpose of denying him his constitutional rights. (See 3AC at 3 ("[WCPD Does 1-10] . . . violated plaintiff's constitutional rights for the sole purpose of denying the [p]laintiff of his liberty interests.").) Such conclusory allegations are insufficient to "raise a right to relief above the speculative level." See Twombly, 550 U.S. at 555. Moreover, plaintiff's bare allegation that "the felony charges were dismissed against [him]," (3AC at 3), without more, does not show that the underlying matter terminated in his favor. See Awabdy, 368 F.3d at 1068 ("[A] dismissal in the interests of justice satisfies [the favorable termination] requirement if it reflects the opinion of the prosecuting party or the court that the action lacked merit or would result in a decision in favor of the defendant.") (emphasis supplied); see also Fetters v. Cty. of L.A., 243 Cal. App. 4th 825, 844 (2016) ("California courts have consistently held that favorable termination in the context of a malicious prosecution action requires plaintiff to show more than a mere dismissal of the underlying action; he or she must show facts establishing his or her innocence."). Plaintiff's failure to allege these necessary elements is fatal to his malicious prosecution claim against WCPD Does 1-10.

Accordingly, plaintiff's Section 1983 malicious prosecution claim as asserted against WCPD Does 1-10 is DISMISSED. However, the Court gives plaintiff LEAVE TO AMEND, to allow him the opportunity to plead additional facts in support of this claim. As for plaintiff's Section 1983 malicious prosecution claim as asserted against DDA Chandler, that claim is DISMISSED WITHOUT LEAVE TO AMEND.

C. Section 1983 Brady Claim Against DA Peterson

With regard to DA Peterson, plaintiff does not allege that he was directly involved in plaintiff's prosecution, but sues him in his supervisory role, for implementing an alleged custom, policy, or practice of withholding Brady material in criminal cases and failing to train his deputy district attorneys to disclose exonerating evidence. (See 3AC at 3-4; see also Opp. to County Defendants' Suppl. Br. at 2.) Plaintiff does not dispute that he is suing DA Peterson in his individual capacity only. As explained previously, district attorneys are entitled to absolute prosecutorial immunity for conduct that is "intimately associated with the judicial phase of the criminal process." Imbler, 424 U.S. at 430; see also Van de Kamp v. Goldstein, 555 U.S. 335, 341 (2009) (citing Imbler). In Van de Kamp, the Supreme Court held that supervising attorneys in their obligations to disclose evidence, where the decisions are linked to the prosecution of the plaintiff and necessarily require legal knowledge and the exercise of related discretion, is an example of such conduct. 555 U.S. at 341-43.

Plaintiff complains only about an alleged policy promulgated by DA Peterson of not disclosing Brady evidence, and DA Peterson's purported failure to train deputy district attorneys regarding disclosure of the same. There is no indication that plaintiff is making any claim against DA Peterson that does not involve the initiation of prosecution or for actions that are not intimately connected with the deputy district attorneys' role in judicial proceedings. See Cotton v. Cty. of San Bernardino, No. EDCV 15-2314-VAP (AGR), 2016 WL 7187442, at *10 (C.D. Cal. Nov. 9, 2016) (holding that policy allegedly promulgated by district attorney of "not disclosing Brady evidence at the earliest opportunity . . . relate[s] to obligations 'directly connected with conduct of a trial' and requiring 'legal knowledge and the exercise of related discretion'") (quoting Van de Kamp, 555 U.S. at 342, 344), report and recommendation adopted, No. EDCV 15-2314-VAP (AGR), 2016 WL 7176575 (C.D. Cal. Dec. 8, 2016). The claim against DA Peterson is thus DISMISSED WITHOUT LEAVE TO AMEND.

D. Monell Claims

1. Monell Claim Against the County

Plaintiff's Monell claim against the County arises from an alleged "longstanding practice, pattern[,] policy[,] or custom of allowing [its] deputy district attorneys to file felony and misdemeanor criminal charges against defendants without probable cause and maliciously prosecute them." (3AC at 3.) Initially, to the extent that plaintiff is purporting to raise this claim against the County as the employer of its deputy district attorneys, as set forth above, a deputy district attorney acts on behalf of the state, and not the county, in initiating and prosecuting criminal cases. (See supra at 7-8.) Accordingly, as alleged, no Monell claim can be stated against the County based on the actions of its district attorney's office because a district attorney represents the state, and not the county, when preparing to prosecute and while prosecuting crimes. See Ceballos v. Garcetti, 361 F.3d 1168, 1182 (9th Cir. 2004) ("Counties are not entitled to sovereign immunity. . . . [H]owever, the County can be held liable only if the District Attorney acted as a county officer. If the District Attorney was a state officer . . . , he is entitled to Eleventh Amendment immunity . . . and the County cannot be held liable for those acts."), reversed and remanded on other grounds, 547 U.S. 410 (2006); see also Weiner, 210 F.3d at 1031 (holding that because district attorneys are state officers when exercising their prosecutorial functions, Section 1983 claims against the county fail because the state is the relevant actor, not the county).

The Court, however, disagrees with the County Defendants that the analysis ends there. Rather, to the extent that plaintiff is purporting to challenge internal administrative policies and procedures of the district attorney's office that do "not involve prosecutorial strategy," it is possible that he may be able to state a claim against the County. See, e.g., Goldstein, 715 F.3d at 762 ("There can be a meaningful analytical distinction between policies and training relating to prosecutorial functions and an index made and maintained as an administrative matter.") (internal quotation marks omitted). Here, the 3AC sets forth factual allegations pertaining to one incident in which plaintiff was charged with violating "California Penal Code section 32, accessory of California Penal Code section 187 (Murder) after the fact" due to "unreasonable pressure" and based on "withh[e]ld cellphone records." (3AC at 2.) Plaintiff makes an unsupported allegation that the County has a "longstanding practice, pattern[,] policy[,] or custom" of allowing its deputy district attorneys to bring criminal charges without probable cause and with malice. (Id. at 3.) See Wood v. Moss, 572 U.S. 744, 755 n.5 (2014) (the Court is not "bound to accept as true a legal conclusion couched as a factual allegation") (internal quotation marks omitted); Chavez v. United States, 683 F.3d 1102, 1108 (9th Cir. 2012) (courts must "discount[] conclusory statements, which are not entitled to the presumption of truth, before determining whether a claim is plausible"). In order to give rise to a claim against the County for any alleged administrative policy or custom, plaintiff must show that his alleged constitutional deprivation was caused by that custom or policy. See City of Canton v. Harris, 489 U.S. 378, 385 (1989) (under Section 1983, a municipality is liable if there is a "direct causal link between a municipal policy or custom and the alleged constitutional deprivation"); see also Monell, 436 U.S. at 694 ("[I]t is when execution of a government's policy or custom, whether made by its lawmakers or by those whose edicts or acts may fairly be said to represent official policy, inflicts the injury that the government as an entity is responsible under § 1983."); Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1146 (9th Cir. 2012) ("Under Monell, a plaintiff must also show that the policy at issue was the 'actionable cause' of the constitutional violation, which requires showing both but for and proximate causation.") (quoting Harper v. City of L.A., 533 F.3d 1010, 1026 (9th Cir. 2008)). Finally, liability against the County may not be premised on an isolated incident such as that alleged in the complaint. See Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) ("Liability for improper custom may not be predicated on isolated or sporadic incidents; it must be founded upon practices of sufficient duration, frequency and consistency that the conduct has become a traditional method of carrying out that policy."); Thompson v. City of L.A., 885 F.2d 1439, 1443-44 (9th Cir. 1989) ("Consistent with the commonly understood meaning of custom, proof of random acts or isolated events are insufficient to establish custom."), overruled on other grounds, Bull v. City & Cty. of S.F., 595 F.3d 964 (9th Cir. 2010) (en banc).

Because it is not clear that the foregoing deficiencies of the 3AC could not be cured by amendment, plaintiff's Monell claim as asserted against the County is DISMISSED WITH LEAVE TO AMEND.

2. Monell Claim Against the City

In the same vein, plaintiff has insufficiently alleged a custom, policy, or practice for which the City could be held liable under Monell. The 3AC contains formulaic recitations that, for example, the City "has a longstanding practice, pattern[,] policy[,] or custom of allowing [its] police officers to arrest citizens without probable cause and maliciously prosecute them" and that it has "engaged in a repeated practice of arresting citizens for violent crimes such as murder and assault without probable cause and maliciously prosecut[ing] them." (3AC at 3.) According to plaintiff, the City's "indifference stems from an entrenched posture of deliberate indifference to the constitutional right of primarily the minority citizens who live or visit the City of Walnut Creek." (3AC at 3.) Plaintiff's allegations are conclusory and seemingly rely only on his own experience. He does not allege an actual formal policy, unwritten custom, or longstanding practice with sufficient particularity to infer that such a custom, policy, or practice exhibits deliberate indifference to plaintiff's constitutional rights or caused the constitutional violations he alleges. He merely assumes one exists. Such an assumption is insufficient.

Accordingly, plaintiff's Monell claim as asserted against the City is DISMISSED WITH LEAVE TO AMEND, to allow plaintiff the opportunity to plead additional facts in support of this claim.

IV. CONCLUSION

For the foregoing reasons, the County Defendants' and City's motions are GRANTED as follows:

• Plaintiff's Section 1983 malicious prosecution claim is:

? DISMISSED WITHOUT LEAVE TO AMEND to the extent it arises from his substantive due process rights under the Fourteenth Amendment;

? DISMISSED WITHOUT LEAVE TO AMEND as asserted against DDA Chandler; and

? DISMISSED WITH LEAVE TO AMEND as asserted against WCPD Does 1-10.

• Plaintiff's Section 1983 Brady claim as asserted against DA Peterson is DISMISSED WITHOUT LEAVE TO AMEND.

• Plaintiff's Monell claim as asserted against the County is DISMISSED WITH LEAVE TO AMEND.

• Plaintiff's Monell claim as asserted against the City is DISMISSED WITH LEAVE TO AMEND.

Any Fourth Amended Complaint must be filed by January 15, 2019. Failure to file a timely Fourth Amended Complaint, and/or remedy the deficiencies as discussed herein, may result in dismissal of the action. Any response thereto is due fourteen (14) days after plaintiff's filing.

This Order terminates Docket Numbers 18, 25, and 43.

IT IS SO ORDERED. Dated: December 4, 2018

/s/ _________

YVONNE GONZALEZ ROGERS

UNITED STATES DISTRICT COURT JUDGE