2008-08-13_Jack_Thomas_v_COH_-_Motion_for_Summary_Judgment

Home

Case 1:07-cv-00251-JMS-LEK Document 42-2 Filed 08/13/2008 Page 10 of 27 (9th Cir. 1995) (a charge of municipal liability is sufficient if the plaintiff establishes that his injury "was a direct result of inadequate training or supervision"). A plaintiff cannot prove the existence of a municipal policy or custom based solely on the occurrence of a single incident or unconstitutional action by a non- policymaking employee. Davis v. City of Ellesburg, 869 F.2d 1230, 1233 (9t" Cir. 1989). Likewise the municipality cannot be held liable for the acts of one if its prosecutors where the prosecutor is acting within the scope of their prosecutorial duties. In the instant case, there is no evidence that the County had an unconstitutional policy, custom or wage. Neither is there any evidence to support a claim that Malate violated any of the Plaintiff's constitutional rights, as stated in his Complaint in this matter. B. Kimura and Malate Have Absolute Immunity. A state prosecutor is entitled to absolute immunity from liability under §1983 for violating a person's federal constitutional rights when he or she engages in activities "intimately associated with the judicial phase of the criminal process." Imbler v. Pachtman, 424 U.S. 409, 430, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976). In other situations a prosecutor is granted only qualified immunity when and if he or she is performing investigatory or administrative functions, or is essentially 3