FILED

NOT FOR PUBLICATION

MAR 11 2020

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT STEVEN L. KAYSER; GLORIA No. 19-35294 YOUNG, individually, and as husband and wife, D.C. No. 2:18-cv-01492-JCC

Plaintiffs-Appellants,

MEMORANDUM* v. WHATCOM COUNTY, a political subdivision of the State of Washington; DAVID S. MCEACHRAN, Prosecuting Attorney for Whatcom County,

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Washington

John C. Coughenour, District Judge, Presiding

Argued and Submitted March 4, 2020

Seattle, Washington Before: IKUTA, R. NELSON, and HUNSAKER, Circuit Judges.

*

This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.

Steven Kayser and Gloria Young (referred to here collectively as Kayser) appeal the district court’s dismissal of their complaint for failure to state a claim. We have jurisdiction under 28 U.S.C. § 1291.

Kayser alleged that Whatcom County’s official written policy erroneously provided that “only evidence for the possible impeachment of government employees” had to be disclosed under Brady v. Maryland, 373 U.S. 83 (1963), and that the County’s implementation of this policy violated Kayser’s constitutional rights. These allegations are sufficient to state a claim under 28 U.S.C. § 1983 against the County and David McEachran (in his official capacity) for constitutional injuries inflicted by the implementation of a local government’s official policies. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658 (1978). Contrary to the County’s assertion, neither prosecutorial immunity nor sovereign immunity shield the defendants from liability. Prosecutorial immunity does not apply where, as here, a prosecutor is sued in his official capacity, Kentucky v. Graham, 473 U.S. 159, 167 (1985). Sovereign immunity does not apply because the complaint alleges that the County is liable for its actions as a county (not as a prosecutor) in promulgating the official policy that caused the injury, and “counties do not enjoy Eleventh Amendment immunity.” Hess v. Port Auth. Trans-Hudson Corp., 513 U.S. 30, 47 (1994).

2

The district court did not err in holding that Kayser failed to allege liability based on a custom or practice. Kayser’s claim that the County has a practice or custom of suppressing evidence in violation of Brady is not plausible, because he failed to allege that the County suppressed evidence in any case other than his two trials. See Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996); see also Christie v. Iopa, 176 F.3d 1231, 1235 (9th Cir. 1999).

The district court also did not err in holding that Kayser failed to allege liability based on a failure-to-train theory. Kayser’s allegation that County prosecutors suppressed evidence in only two instances is insufficient to establish that the County had “actual or constructive notice that a particular omission in their training program causes city employees to violate citizens’ constitutional rights.” Connick v. Thompson, 563 U.S. 51, 61 (2011). Therefore, Kayser’s failure-to-train claim is not plausible.

AFFIRMED IN PART; REVERSED IN PART.1

1

Each party shall bear its own costs.

3