ORDER GRANTING DEFENDANT FLIPPO’S MOTION TO DISMISS WITH LEAVE TO AMEND IN PART, STACY LININGER, Plaintiff, v. RONALD PFLEGER, et al., Defendants, UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA

ABSTRACT: On November 6, 2017, SUSAN VAN KEULEN, United States Magistrate Judge, submitted ORDER GRANTING DEFENDANT FLIPPO’S MOTION TO DISMISS WITH LEAVE TO AMEND IN PART. CONCLUSION Defendant Flippo’s motion to dismiss is granted with leave to amend in part. Specifically: · Plaintiff is granted leave to cure her deficiencies in pleading injunctive relief; · Plaintiff may not amend to state a claim against Flippo in his official capacity, but may state a claim against a district attorney in his or her individual capacity; · Plaintiff must correct the general Rule 8 deficiencies outlined above. Plaintiff is ordered to amend her complaint by November 28, 2017. Pursuant to Rule 15(a)(3), Defendants must respond within 14 days after service of the amended complaint. Importantly, State Criminal Proceedings The State filed two charges arising out of Plaintiff’s June 2015 calls. The first case sought revocation of Plaintiff’s 2014 probation for violation of conditions, including making harassing calls to 911, or alternatively, violating the law by violating California Penal Code 653m (making annoying phone calls as defined by the statute) (Case No. MS317393A). The second charged a violation of California Penal Code 653m(a) (Case No. MS333633A). ECF 11-1 at 9. In January 2017, after a revocation hearing in Case No. MS317393A, the state court ruled that Plaintiff had not violated her conditions of probation. First, the court found that Plaintiff did not make calls to 911, but rather dialed the non-emergency 911 number. ECF 11-1 at 14. Second, in analyzing whether Plaintiff violated section 653m(b), the court found that even though Plaintiff did make repeated calls, she did not do so with specific intent to annoy or harass as the statute requires. ECF 11-1 at 17-18. Finally, the court concluded that the calls were made in good faith, which is protected by the statute. ECF 11-1 at 18. In May 2017, the State dismissed the second case charging a violation of California Penal Code 653m(a). Plaintiff’s Complaint and Defendant’s Motion to Dismiss Plaintiff now brings a complaint against a Carmel Police Department officer Roger Pfleger, the City of Carmel, and the Monterey County District Attorney, Dean Flippo. Plaintiff asserts three causes of action under 42 U.S.C. § 1983: 1) Against Defendant Pfleger for retaliation in violation of the First Amendment; 2) Against the City of Carmel for retaliation in violation of the First Amendment; and 3) Against Defendant Flippo for malicious prosecution in violation of the Fourth and Fourteenth Amendment. Lininger v. Pfleger Order Granting Defendant Flippo's Motion to Dismiss 11-06-17 by L. A. Paterson on Scribd UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA STACY LININGER, Plaintiff, v. RONALD PFLEGER, et al., Defendants. ORDER GRANTING DEFENDANT FLIPPO’S MOTION TO DISMISS WITH LEAVE TO AMEND IN PART Case No.17-cv-03385-SVK