United States v. 2020-03-11 | 19-35294 | STEVEN KAYSER V. WHATCOM COUNTY | nonprecedential | memorandum disposition |

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

STEVEN L. KAYSER; GLORIA
YOUNG, individually, and as husband and
wife,
Plaintiffs-Appellants,
v.
WHATCOM COUNTY, a political
subdivision of the State of Washington;
DAVID S. MCEACHRAN, Prosecuting
Attorney for Whatcom County,
Defendants-Appellees.
No. 19-35294
D.C. No. 2:18-cv-01492-JCC
MEMORANDUM
*
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.
FILED
MAR 11 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
*
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).
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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.
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Each party shall bear its own costs.
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