2008-10-01_Jack_Thomas_v_COH_-_Order_Granting_Defendants_Motion_for_Summary_Judgment_and_Remanding_State_Law_Claims

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Case 1:07-cv-00251-JMS-LEK Document 52 Filed 10/01/2008 Page 12 of 17 Goldstein, 481 F.3d at 1173-74 (citations and quotation signals omitted). Defendants bear the burden of demonstrating that absolute immunity is warranted. Id. at 1173; see also Milstein v. Cooley, 257 F.3d 1004, 1008 (9th Cir. 2001) ("[T]he official seeking absolute immunity bears the burden of showing that such immunity is justified for the function in question."). 2. Application Plaintiff alleges that Malate and Kimura violated his Constitutional rights by (1) applying a probable cause standard as to Plaintiff, but a beyond a reasonable doubt standard as to Chung, in determining whether to institute criminal actions against them; and (2) placing Plaintiff in double jeopardy by charging him with a crime that a previous judge had dismissed against him.6 Both of these acts fall easily within Malate and Kimura's role as advocates for the County. Specifically, each of Defendants' alleged violations are based on the decision to initiate a criminal action against Plaintiff. "Initiating a prosecution has consistently been identified as a function within the prosecutor's role as advocate." Milstein, 257 F.3d at 1012. A prosecutor is entitled to absolute 6 In addition to these violations, the Complaint recited that Plaintiff's First, Fourth, Eighth, and Ninth Amendment rights were violated. Compl.135. Plaintiff's Opposition did not discuss allegations pursuant to these Constitutional amendments, and during the hearing, Plaintiff clarified that he was alleging the two Constitutional violations listed above only. 12