1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 6 BRENT OSTER, Case No. 20-cv-01125-JD

7 Plaintiff, ORDER RE DISMISSAL v. 8

9 SANTA CLARA COUNTY DISTRICT ATTORNEY'S OFFICE, et al., 10 Defendants.

11

12 Pro se plaintiff Brent Oster sued the County of Santa Clara and several District Attorneys 13 for the County of Santa Clara (the County), and the City of Gilroy and the Gilroy Chief of Police 14 (the City), in state court for negligence, prosecutorial misconduct, and fraud. See Dkt. No. 1-2.1 15 Oster alleges that the defendants maliciously prosecuted him for domestic violence charges 16 following his divorce. Id. at 1. The County removed the action to federal court, without 17 opposition, on the basis of

in light of the claims brought under

1983 and 12132. Dkt. No. 1 ¶¶ 6-8, 12; Dkt. No. 1-2 ¶ 1. 19 The County and City made separate requests to dismiss Oster’s claims under Federal Rule 20 of Civil Procedure 12(b)(6). Dkt. Nos. 7, 8. Before Oster responded, the City filed another 21 motion to dismiss under Federal Rule of Civil Procedure 41(b), which was denied. Dkt. Nos. 20, 22 26. Oster filed a motion in opposition to the Rule 41(b) motion, which in effect addresses the 23 Rule 12(b)(6) motions to dismiss. Dkt. No. 25.2 24

25 1 Oster filed an amended complaint in state court after removal that does not appear to have been served formally but was attached to the removal notice and is, for practical purposes, the operative 26 complaint. Dkt. No. 1 ¶ 5; Dkt. No. 1-3.

27 2 Oster filed three sets of exhibits “as evidence to support the answer of plaintiff.” Dkt. No. 21 at 1 In September 2021, Oster agreed to dismiss all claims against the City with prejudice. See 2 Dkt. No. 36. Oster’s claims for malicious prosecution and aiding and abetting fraud against the 3 County, and the County’s motion to dismiss, remained pending. See Dkt. No. 1-2 ¶¶ 43-68; Dkt. 4 No. 7. The parties’ familiarity with the record is assumed, and dismissal is granted. 5 The Court has afforded Oster and his complaint a liberal construction, as is appropriate for 6 pro se litigants, but he must still allege facts plausibly demonstrating a claim for relief for the 7 complaint to go forward. Hebbe v. Pliler,

(9th Cir. 2010); Nordin v. Scott, 8 No. 21-cv-04717-JD,

, at *1 (N.D. Cal. Oct. 8, 2021). 9 The complaint does not pass review under Rule 8 or Rule 12(b)(6). Although the 10 complaint is not entirely clear on the applicable law, the only apparent federal claims are under 11 Section 1983 for “prosecutorial misconduct.” See Dkt. No. 1-2 ¶¶ 43-62. It is possible to state a 12 claim for malicious prosecution under

when the prosecution is “conducted with 13 the intent to deprive a person of equal protection of the laws” or “to subject a person to a denial of 14 constitutional right.” Usher v. City of Los Angeles,

(9th Cir. 1987). On that 15 score, Oster says that the County selectively prosecuted him and failed to prosecute his ex-spouse 16 based on differential treatment of gender. Dkt. No. 1-2 ¶¶ 49-50, 76-81. But the problem is that 17 the complaint did not allege that Oster had obtained a favorable termination of the prosecutions, 18 which is required for a civil claim of prosecutorial misconduct under Section 1983. See Heck v. 19 Humphrey,

(1994); see also McDonough v. Smith,

, 2156-57 20 (2019). If anything, the complaint indicates that the criminal proceedings against him were 21 unresolved when it was filed. See Dkt. No. 1-2 ¶ 40; see also Dkt. No. 25 at 10. 22 Consequently, the Section 1983 claims are dismissed with leave to amend. An amended 23 complaint, if filed, must plausibly allege that the criminal proceedings ended favorably for Oster. 24 No new claims or parties may be added without the Court’s prior consent. 25 That resolves the only federal claim in the complaint. Until a plausible federal claim is 26 alleged, the Court declines to exercise supplemental jurisdiction over his state law claims. 28 27 1 USS.C. § 1376(c)(3); Parra v. PacifiCare of Arizona, Inc.,

(9th Cir. 2013); 2 see also Doe v. City of Concord, No. 20-cv-02432-JD,

, at *2 (N.D. Cal. July 3 26, 2021). Oster may file an amended complaint by November 28, 2022. A failure to meet this 4 deadline will result in a dismissal of the case under Federal Rule of Civil Procedure 41(b). 5 IT IS SO ORDERED. 6 Dated: November 4, 2022 7 8 JAMES/$ONATO 9 United States District Judge 10 11 a 12

15 16 & = 17

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