Lori Wallender; Daniel Wallender v. Harney County;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LORI WALLENDER; DANIEL
WALLENDER,
Plaintiffs-Appellants,
v.
HARNEY COUNTY; et al.,
Defendants-Appellees.
No. 21-35238
D.C. No. 2:19-cv-00004-SU
MEMORANDUM*
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Submitted May 13, 2022**
Portland, Oregon
Before: CHRISTEN and SUNG, Circuit Judges, and RAYES,*** District Judge.
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Douglas L. Rayes, United States District Judge for the
District of Arizona, sitting by designation.
FILED
MAY 19 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 3 --

2
Lori and Daniel Wallender sued Harney County Assistant District Attorney
Ryan Hughes under 42 U.S.C. § 1983, alleging Hughes violated their Fourth
Amendment1 rights by deceptively obtaining a grand jury indictment against them.2
They appeal the district court’s judgment dismissing their claim without leave to
amend. We have jurisdiction under 28 U.S.C. § 1291. We review a dismissal for
failure to state a claim de novo, and a denial of leave to amend for an abuse of
discretion. Brown v. Stored Value Cards, Inc., 953 F.3d 567, 572–73 (9th Cir. 2020).
We affirm.
1. The district court properly dismissed the Wallenders’ complaint against
Hughes because prosecutors are absolutely immune from liability under § 1983 for
seeking indictments before grand juries. See Burns v. Reed, 500 U.S. 478, 490 n.6
(1991); Lacey v. Maricopa Cnty., 693 F.3d 896, 912–13 (9th Cir. 2012); Milstein v.
Cooley, 257 F.3d 1004, 1012 (9th Cir. 2001); Herb Hallman Chevrolet, Inc. v. Nash-
1 The Wallenders’ claim technically arises under the Fourteenth Amendment,
“which incorporated the protections of the Fourth Amendment against the States.”
Torres v. Madrid, 141 S.Ct. 989, 997 (2021).
2 The Wallenders sued several defendants but voluntarily dismissed their
claims against all except Hughes and Harney County. The Wallenders’ sole claim
against Harney County alleged municipal liability under § 1983 and Monell v. New
York City Department of Social Services, 436 U.S. 658 (1978). Yet the Wallenders’
appellate briefs do not include any argument as to this claim. Their opening brief
does not even identify it as an issue on appeal. Because we do not consider matters
not distinctly raised and argued in the opening brief, see Padgett v. Wright, 587 F.3d
983, 985 n.2 (9th Cir. 2009), this decision addresses only the claim against Hughes.

-- 2 of 3 --

3
Holmes, 169 F.3d 636, 643 (9th Cir. 1999); Sanders v. City and County of San
Francisco, 226 Fed. App’x 687, 690 (9th Cir. 2007).
2. The district court did not abuse its discretion in denying leave to amend
because the Wallenders’ proposed amendments are futile. See Gardner v. Martino,
563 F.3d 981, 990 (9th Cir. 2009). The Wallenders attempt to evade absolute
prosecutorial immunity by alleging that Hughes acted in an investigative role before
the grand jury, rather than as an advocate, but their proposed amended complaint
alleges no facts supporting this contention. To state a plausible claim to relief, a
plaintiff must plead “more than labels and conclusions.” Bell Atlantic Corp. v.
Twombly, 550 U.S. 544, 555 (2007). The Wallenders’ proposed amended complaint
fails to clear this bar.
AFFIRMED

-- 3 of 3 --