Joseph Johnson, Jr. v. Mitchell Conner

FILED
NOT FOR PUBLICATION OCT 12 2011

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

JOSEPH JOHNSON, Jr., No. 10-15043

Plaintiff - Appellant, D.C. No. 3:09-cv-02106-SI

v.
MEMORANDUM *
MITCHELL CONNER; et al.,

Defendants - Appellees.

Appeal from the United States District Court
for the Northern District of California
Susan Illston, District Judge, Presiding

Submitted September 27, 2011 **

Before: SILVERMAN, W. FLETCHER, and MURGUIA, Circuit Judges.

Joseph Johnson, Jr. appeals pro se from the district court’s judgment in his

42 U.S.C. § 1983 action alleging that defendants violated his constitutional rights

in connection with his civil commitment proceedings under California’s Sexually

Violent Predator Act. We have jurisdiction under 28 U.S.C. § 1291. We review de

*
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).
novo. Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir. 1994) (per curiam)

(summary judgment and dismissal under Fed. R. Civ. P. 12(b)(6)). We affirm.

The district court properly dismissed Johnson’s § 1983 municipal liability

claim against Santa Clara County because its District Attorney acted as an agent of

the state, not the county, in committing the alleged constitutional violations, and

Johnson failed to state a viable claim that his constitutional deprivations resulted

from any official county custom or policy. See Monell v. Dep’t of Soc. Servs., 436

U.S. 658, 690-91 (1978); see also McMillian v. Monroe County, 520 U.S. 781, 795

(1997) (state law informs whether a county employee is considered a state or

county official for the purposes of § 1983 liability); Pitts v. County of Kern, 949

P.2d 920, 937 (Cal. 1998) (California district attorneys are under the direction of

the state Attorney General and act as agents of the state when prosecuting cases).

The district court properly granted summary judgment for defendant

Mayberg because there is no triable dispute as to whether Mayberg’s use of an

improperly-enacted Standardized Assessment Protocol caused Johnson’s alleged

constitutional injuries. See Leer v. Murphy, 844 F.2d 628, 633 (9th Cir. 1988) (“A

person deprives another of a constitutional right, within the meaning of section

1983, if he does an affirmative act, participates in another’s affirmative acts, or

omits to perform an act which he is legally required to do that causes the

2 10-15043
deprivation of which the plaintiff complains.” (citation, internal quotation marks,

and brackets omitted)).

Johnson’s remaining contentions are unpersuasive.

AFFIRMED.

3 10-15043