Corbray v. Horne

THE HONORABLE JOHN C. COUGHENOUR UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT TACOMA DENNIS DERISE CORBRAY, CASE NO. C23-5841-JCC Plaintiff, ORDER 11 v. GERALD A. HORNE, et al., 13 Defendants.

15 Plaintiff filed a civil rights complaint with this Court asking for 42 U.S.C. § 1983 relief.

16 (See Dkt. No. 4.) However, because he is a prisoner seeking redress from a governmental entity or officer, the Court must dismiss the complaint prior to service if it fails to state a claim upon which relief may be granted. 28 U.S.C. §§ 1915A(a)–(b)(1). The Honorable Judge David W.

19 Christel, United States Magistrate Judge, issued a Report and Recommendation (“R&R”) that this Court do just that. (See Dkt. No. 6) Plaintiff objects. (See Dkt. No. 7.)

21 A district court reviews de novo those portions of a magistrate judge’s R&R to which a party properly objects. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3). In turning to the complaint, Plaintiff alleges that former Pierce County Prosecutor Gerald Horne, and his former employer, Pierce County Prosecuting Attorney’s Office, violated his civil rights. (See Dkt. No. 4 at 4–7.) According to Plaintiff, they did so when a second prosecutor (a subordinate to Mr. Horne) signed a probable cause document omitting information relevant to the offense for which Plaintiff is ultimately now serving a term of custody. (Id.) Plaintiff contends that Mr. Horne, by granting this subordinate permission to sign the document, infringed on Plaintiff’s civil rights.

3 (Id.) 4 According to the R&R, the recommended disposition here turns on the fact that the named Defendants, Mr. Horne and the Pierce County Prosecuting Attorney’s Office, enjoy absolute immunity. (Dkt. No. 6 at 3.) Plaintiff, in objecting, argues that the subordinate prosecutor at issue, and by extension Mr. Horne and the Pierce County Prosecutor’s office, are not afforded such immunity. (Dkt. No. 7 at 2–3.) Indeed, while a prosecutor enjoys absolute immunity from suit when acting pursuant to their role as an advocate, this immunity falls away when performing other functions, such as that of a complaining witness. See Kalina v. Fletcher, 522 U.S. 116, 131 (1997). And here, the Court agrees that, based on Plaintiff’s allegations, absolutely immunity would not necessarily apply. (Dkt. No. 7 at 3.) But this is not the end of the analysis. Plaintiff contends that when a prosecutor signs a probable cause certificate, by definition, this infringes on a defendant’s rights. (See Dkt. No. 1 at 5.) No more allegations are needed to support this contention. The Court disagrees.

16 There is a difference between an imperfect defense and conduct which, if proven to be true, violates someone’s rights. Because Defendants still enjoy qualified immunity, Plaintiff not only needs to show how they violated his rights, but that those rights are of a “clearly established statutory or constitutional [magnitude] of which a reasonable person would have known.”

20 Mitchell v. Forsyth, 472 U.S. 511, 524 (1985). And neither Plaintiff’s complaint nor his objection to the R&R make this showing. (See Dkt. Nos. 1 at 4–5, 7 at 1–6.)

22 Moreover, Plaintiff’s allegations focus primarily on the subordinate’s conduct. (See generally Dkt. No. 7.) But to state a § 1983 claim, a plaintiff must allege facts to show how a named defendant caused the harm alleged in the complaint. See Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988). While Plaintiff contends that Defendant Horne failed to supervise the subordinate, this is a legal conclusion lacking in factual support. It alone is insufficient to state a plausible claim for relief. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). And none of Plaintiff’s allegations, at least on the surface, suggest that the subordinate violated a clearly established right (nor does Plaintiff provide citation suggesting that it does). See Foster v. Dept.

4 of Lab. and Industries, 2020 WL 4193179, slip op. at 5 (W.D. Wash. 2020) (“[w]hen [the qualified immunity] test is properly applied, it protects all but the plainly incompetent or those who knowingly violate the law.”) (internal citation omitted).

7 For the foregoing reasons the Court ADOPTS the R&R (Dkt. No. 6), DENIES the objections (Dkt. No. 7) and DISMISSES the complaint (Dkt. No. 4) with prejudice and without leave to amend.1 Because this case is being dismissed for failure to state a claim, it shall count as a “strike” under 28 U.S.C. § 1915(g). Finally, based on this disposition, Plaintiff’s request for appointment of counsel is moot. (Dkt. No. 7 at 4–5.)

13 DATED this 7th day of December 2023.

A John C. Coughenour 17 UNITED STATES DISTRICT JUDGE

22 1 A pro se litigant need not be granted leave to amend if it “is absolutely clear that no amendment can cure the defect.” Lucas v. Department of Corrections, 66 F.3d 245, 248 (9th Cir. 1995). Here, the nexus between the alleged acts and asserted legal claim is too tenuous for a colorable claim to arise following amendment.

Moreover, the Court notes that Plaintiff is currently pursuing a similar claim against the subordinate prosecutor referenced above. See Corbray v. Robnett, et al., Case No. C23-5725- JCC-TLF (W.D. Wash. 2023). Accordingly, the claims asserted in this complaint are largely duplicative.