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MORGAN v. COCHISE COUNTY BOARD OF SUPERVISORS (2021)

United States Court of Appeals, Ninth Circuit.2021-09-17No. No. 20-17034

Summary

Holding. The court affirmed the district court's dismissal of Morgan's First Amendment retaliation claims against prosecutors (based on absolute immunity), court and jail staff (based on insufficient chilling effect), and the Board of Supervisors (based on failure to comply with Arizona notice requirements), and affirmed the denial of leave to amend.

David Morgan appealed the dismissal of his federal civil rights lawsuit alleging First Amendment violations. The district court dismissed his claims on multiple independent grounds. Morgan's retaliation-based prosecution claims failed because prosecutors enjoy absolute immunity from liability for charging decisions, and even if they did not, Morgan would have needed to prove the charges lacked probable cause. His claims against court and jail staff failed because the alleged retaliatory conduct would not deter a reasonable person from engaging in protected speech. His claims against the Board of Supervisors under state law were properly dismissed because Morgan did not comply with Arizona's requirement to provide notice of his claim within 180 days. The district court properly declined to allow Morgan to amend his complaint because any amendments would have been futile.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Prosecutorial absolute immunity in First Amendment retaliation cases
  • Requirements for pleading First Amendment retaliation claims against government officials
  • Compliance with state notice-of-claim requirements in federal civil rights suits
  • Futility of amendment as grounds for dismissal without leave to amend

Procedural posture

Morgan appealed pro se from a district court's Rule 12(b)(6) dismissal of his § 1983 First Amendment retaliation action.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

MEMORANDUM **

David M. Morgan appeals pro se from the district courts judgment dismissing his 42 U.S.C. § 1983 action alleging First Amendment violations. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a district courts dismissal for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). Sheppard v. David Evans & Assoc., 694 F.3d 1045, 1048 (9th Cir. 2012). We affirm.

The district court properly dismissed Morgans First Amendment malicious prosecution claims for failure to state a plausible claim. See Hartman v. Moore, 547 U.S. 250, 261-62, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006) (“A Bivens (or § 1983) action for retaliatory prosecution will not be brought against the prosecutor, who is absolutely immune from liability for the decision to prosecute ․”); see also Nieves v. Bartlett, ––– U.S. ––––, 139 S. Ct. 1715, 1722, 204 L.Ed.2d 1 (2019) (“[P]laintiffs in retaliatory prosecution cases ․ must also prove as a threshold matter that the decision to press charges was objectively unreasonable because it was not supported by probable cause.”).

The district court properly dismissed Morgans claims arising from court and jail staffs allegedly retaliatory actions because these actions would not chill a person of ordinary firmness from continuing to engage in the protected activity. See Sampson v. County of L.A. by & through L.A. County Dept of Child. & Fam. Servs., 974 F.3d 1012, 1019 (9th Cir. 2020) (discussing the requirements of a First Amendment retaliation claim).

The district court properly dismissed Morgans claims of respondeat superior liability under Arizona law against defendant Board of Supervisors because Morgan failed to comply with Arizona state law Notice of Claim rules. See Ariz. Rev. Stat. § 12-821.01 (requiring plaintiffs to serve notice of claims against a public entity within 180 days of accrual of cause of action).

The district court did not abuse its discretion by dismissing Morgans complaint without leave to amend because amendment would have been futile. See Gordon v. City of Oakland, 627 F.3d 1092, 1094 (9th Cir. 2010) (setting forth standard of review and grounds for dismissing without leave to amend).

We do not consider matters not specifically and distinctly raised and argued in the opening brief, or arguments and allegations raised for the first time on appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.