Timothy S. Tofaute; David Dixon v. County of Madera;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TIMOTHY S. TOFAUTE; DAVID DIXON,
Plaintiffs-Appellants,
v.
COUNTY OF MADERA; et al.,
Defendants-Appellees.
No. 18-15268
D.C. No. 1:16-cv-01627-DAD-
SKO
MEMORANDUM*
Appeal from the United States District Court
for the Eastern District of California
Dale A. Drozd, District Judge, Presiding
Submitted November 18, 2019**
Before: CANBY, TASHIMA, and CHRISTEN, Circuit Judges.
Timothy S. Tofaute and David Dixon appeal pro se from the district court’s
judgment dismissing their 42 U.S.C. § 1983 action alleging federal and state law
claims arising from their arrest and criminal prosecution. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo a dismissal for failure to state a claim
* 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).
FILED
NOV 26 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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under 28 U.S.C. § 1915(e)(2)(B)(ii). Watison v. Carter, 668 F.3d 1108, 1112 (9th
Cir. 2012). We affirm.
The district court properly dismissed plaintiffs’ malicious prosecution claim
against defendant former District Attorney Keitz on the basis of prosecutorial
immunity because plaintiffs failed to allege facts sufficient to show that Keitz’s
alleged conduct was not “intimately associated with the judicial phase of the
criminal process . . . .” Imbler v. Pachtman, 424 U.S. 409, 430 (1976); Broam v.
Bogan, 320 F.3d 1023, 1029 (9th Cir. 2003) (“A prosecutor is absolutely immune
from liability for failure to investigate the accusations against a defendant before
filing charges.”).
The district court properly dismissed plaintiffs’ malicious prosecution claims
against defendants Anderson and Blehm because plaintiffs failed to allege facts
sufficient to show that former District Attorney Keitz did not “exercise[]
independent judgment in determining that probable cause for [plaintiffs’] arrest
exist[ed] . . . .” Smiddy v. Varney, 665 F.2d 261, 266 (9th Cir. 1981), overruled on
other grounds by Beck v. City of Upland, 527 F.3d 853, 865 (9th Cir. 2008); see
also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (to avoid dismissal, “a complaint
must contain sufficient factual matter, accepted as true, to state a claim to relief
that is plausible on its face” (citation and internal quotation marks omitted)).
The district court properly dismissed plaintiffs’ failure-to-train claim against

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Madera County because plaintiffs failed to allege facts sufficient to show that the
County policymakers were personally involved in causing their injury, were aware
that any training program was inadequate, or that a pattern of similar incidents
existed. See Connick v. Thompson, 563 U.S. 51, 61-62 (2011) (noting that actual
or constructive notice that a training program causes city employees to violate
citizens’ constitutional rights and a pattern of similar constitutional violations by
untrained employees are usually necessary for a failure-to-train claim); Ellins v.
City of Sierra Madre, 710 F.3d 1049, 1066 (9th Cir. 2013) (county may be liable
under § 1983 “when the plaintiff was injured pursuant to an expressly adopted
official policy, a long-standing practice or custom, or the decision of a final
policymaker” (citation and internal quotation marks omitted)); see also Iqbal, 556
U.S. at 678.
We do not consider arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.

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