David Lee Simmons v. Peter Deuel; Steven Leriche; John R. Kroger; Darin Tweedt; Stephanie Tuttle

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DAVID LEE SIMMONS,
Plaintiff - Appellant,
v.
PETER DEUEL; STEVEN LERICHE;
JOHN R. KROGER; DARIN TWEEDT;
STEPHANIE TUTTLE,
Defendants - Appellees.
No. 09-35606
D.C. No. 3:08-cv-00343-PK
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Argued and Submitted July 14, 2010
Portland, Oregon
Before: PREGERSON, WARDLAW and RAWLINSON, Circuit Judges.
Appellant David Lee Simmons challenges the district court’s dismissal of
his Complaint against Appellees Peter Deuel, Steven Leriche, John Kroger, Darin
Tweedt and Stephanie Tuttle.
FILED
NOV 02 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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1. The district court did not err in dismissing Simmons’s claims asserted
against Leriche for continuing to prosecute him on charges that had not been
returned by a grand jury. We have held that “[a] prosecutor is entitled to absolute
immunity for quasi-judicial actions taken within the scope of his authority.”
McCarthy v. Mayo, 827 F.2d 1310, 1314 (9th Cir. 1987), as amended (citations
omitted) (emphasis added). “Authority does not rest on technicalities of local law;
the issue is whether the prosecutor is arguably empowered to perform the act.” Id.
(citation and parentheses omitted). Because Leriche was acting within the scope of
his authority, he was entitled to absolute immunity.
2. The district court also properly dismissed Simmons’s claims pertaining to
the second prosecution. We have previously noted that the Supreme Court’s
decision in Heck v. Humphrey, 512 U.S. 477 (1994) precludes a plaintiff from
obtaining relief “in a [42 U.S.C.] § 1983 suit if a judgment in favor of the plaintiff
would necessarily imply the invalidity of his conviction or sentence unless the
plaintiff can demonstrate that the conviction or sentence has already been
invalidated.” Guerrero v. Gates, 442 F.3d 697, 703 (9th Cir. 2006) (footnote
reference and alteration omitted). Simmons pled guilty to, and was ultimately
convicted of, a misdemeanor as a result of the second prosecution. Because

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Simmons has failed to demonstrate that his misdemeanor conviction has been
invalidated, he is precluded from obtaining relief on his claims. See id.
AFFIRMED.

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