Case 5:17-cv-03385-SVK Document 1 Filed 06/12/17 Page 1 of 14

1
Steven J. Andre
2 Attorney at Law CA #132633
26080 Carmel Rancho Blvd. 2008
3 Carmel, CA 93923
(831) 624-5786
4
Attorney for Plaintiff, STACY LININGER
5

10
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
12

j_J Case No
STACY LININGER,
14 COMPLAINT FOR DAMAGES
Plaintiff, r42 U.S.C. 1983- Retaliation for
15 Exercise oiFirst Amendment Rights;
v. Request for Injunctive Relief]
16
RONALD PFLEGER, CITY OF
17 JURY TRIAL DEMANDED
CARMEL, DEAN FLIPPO, District
18
Attorney of Monterey County California,
19
and DOES l-50,
20
Defendants.
21

zz INTRODUCTION
23
l. This is a case of retaliation against a private citizen for her First Amendment
24
activity. Stacy Lininger, a concerned citizen, sought to report and follow-up on the
25

26 investigation of a crime committed by a Carmel Police Department officer against one of

27
Ms. Lininger's minor students whose genitals were groped by that police officer. She
28
 Case 5:17-cv-03385-SVK Document 1 Filed 06/12/17 Page 2 of 14

1
reported the incident with her student to the Carmel Police Department. Instead of

2 complying with his mandatory duty to report the incident and instead of providing
3
information to Ms. Lininger concerning the investigation, the officer who took the report
4
retaliated against Ms. Lininger by verbally abusing her, threatening her and by having her
5

6 brought up on false criminal charges.

7
COMMON FACTUAL BACKGROUND
8
2. In January 2015, Plaintiff Stacy Lininger was at work teaching a class for juvenile
9

10 offenders which dealt with tobacco use. One of her male students disclosed that during a

11
routine traffic stop a Carmel Police officer, Michael Bruno, separated him from the
12
vehicles' other occupants, strip searched him and grabbed his penis, held it up and said,
13

14 "What's this?"

15 3. Plaintiff, a mandatory reporter, contacted her employer/supervisor and made a

16
report of the child abuse incident concerning her student. She also called and made her
17

18 report to the Carmel Police Department. The Carmel Police Department officer who took

19 her report was Defendant, RONALD PFLEGER ("Pfleger").

20
4. When, after several months had passed, plaintiff had heard nothing about what had
21

22
been done to address the situation, she called the Carmel Police Department again in June

23 2015, to inquire about the case. Plaintiff made a number of calls to the Carmel Police
24
Department between June 26, 2015 and June 28, 2015.
25
5. After several telephone conversations with Cannel Police Department officers and
26

27 other staff that indicated to plaintiff that they knew nothing about the crime she had
28

2
 Case 5:17-cv-03385-SVK Document 1 Filed 06/12/17 Page 3 of 14

reported, she began to suspect that the matter concerning a fellow Carmel police officer
l

2 was being swept under the rug by them.

3
6. In fact, Officer Pfleger had failed to file any report on the matter in violation of
4
California Penal Code 11165.9 and sought to cover up Ms. Lininger' s report.
5

6 7. Plaintiff continued to call to request a copy ofher report, to criticize the police for
7
inaction, and to insist that action be taken to hold Officer Bruno accountable for his
8
misconduct.
9

10 8. Defendant responded to plaintiff's calls by telling her the matter was " resolved,''

11
ridiculing her, insulting her, telling her they would not tell her anything, asking her to
12
stop calling, intimidating her, threatening her with criminal prosecution and ordering her
13

14 not to call the police.

15 9. When defendant and his fellow officers refused to provide plaintiff with any
16
information or to do anything in response to her report of the crime, plaintiff called the
17

18
Carmel Police Department seeking information as to other government agencies that

19 might take action regarding what happened to her student.

20
10. Plaintiff's calls to the Carmel Police Department were protected by the First
21

22
Amendment to the United States Constitution as petitioning activity and free speech.

23 11. Defendant retaliated against plaintiff for her exercise of First Amendment rights by
24
filing a criminal report with the Monterey District Attorney's Office against her and
25
causing the filing of a Strategic Lawsuit Against Public Participation ("the SLAPP,) to b
26

27 filed against Plaintiff in Monterey Superior Court Cases MS33363A and MS317393A.
28
Defendant caused charges to be filed against Plaintiff on the false basis that her protected

3
 Case 5:17-cv-03385-SVK Document 1 Filed 06/12/17 Page 4 of 14

exercise of her rights amounted to placing harassing phone calls under California Penal

2 Code 653m..
3
12. Defendant sought to enlist the participation as a victim of plaintiff's employer/
4

supervisor, VictoriaWayner, who Ms. Lininger had called to update concerning her
5

6 interactions with the Carmel Police Department and to obtain her assistance in dealing
7
with the stonewalling she was encountering from them. Ms. Wayner declined to be
8
named as a victim. Nevertheless, defendant Pfleger falsely named Ms. Wayner as a
9

10 supposed victim of harassing telephone calls by Ms. Lininger in his report to defendant
11
Monterey County District Attorney.
12
13. Defendant caused a warrant to be applied for and obtained proximately causing an
13

14 invasion of plaintiff's privacy by involving the searching of plaintiff's phone records and

15 proximately caused plaintiff to incur legal expenses, suffer the humiliation of being
16
subjected to criminal charges and to unnecessarily endure the lengthy, stressful criminal
17

18 legal process in order to obtain a dismissal of defendant's retaliatory false charges.

19 14. The harm from defendant's retaliation against Plaintiff for her exercise of her
20
constitutional rights did not end until the SLAPP criminal prosecution against plaintiff
21

22
was dismissed on the day of trial by defendant Monterey County District Attorney on

23 May 1, 2017.
24
JURISDICTION AND VENUE
25
15. This action is brought pursuant to 42 U.S.C. Section 1983 to redress the
26

27 deprivation under color of law of Plaintiff's rights as secured by the United States
28
Constitution.

4
 Case 5:17-cv-03385-SVK Document 1 Filed 06/12/17 Page 5 of 14

16. This court has original jurisdiction over Plaintiffs federal claims under 28 U.S.C.
l

2 I 331 and 1343 because this is a civil action seeking redress for the deprivation of
3
rights secured by the United States Constitution.. Venue is proper under 28 U.S.C.
4
1391 (b). The parties reside in this judicial district, and the events giving rise to the claims

6 asserted herein occurred here as well.

7
17. This court has supplemental jurisdiction over any state law claim under 28 U.S.C.
8
1367(a) because it is part of the same case or controversy as Plaintiffs federal claims.
~

10 THE PARTIES
11
18. At all times relevant hereto, Plaintiff, STACY LININGE~ was a resident of
12
Monterey County.
13

14 19. At all times relevant hereto, Defendant RONALD PFLEGER was a Sergeant with

15 the Carmel Police Department, a duly appointed Carmel Police officer, and a resident of
16
Monterey County, California.
17

18 20. At all times relevant hereto, Defendant Dean Flippo, District Attorney of Monterey

19 County, was the district attorney of the County of Monterey, California, responsible for
20
and whose office filed false charges against Plaintiff based upon the report by the Carmel
21

22
Police Department, and is sued in his official capacity.

23 21. All of the foregoing Defendants are sued in their individual capacities, and all
24
acted under color of law and in the scope of their employment in engaging in the actions
25
alleged in this Complaint.
26

27

28

5
 Case 5:17-cv-03385-SVK Document 1 Filed 06/12/17 Page 6 of 14

1
22. At all relevant times, defendant City of Carmel was a municipal entity located in

2 Monterey County, California and employed Pfleger and the other officers of the Carmel
3
Police Department.
4

5
FIRST CLAIM FOR RELIEF 42 U.S.C. 1983- Retaliation in Violation of the
6 First Amendment (Against Defendant RONALD PFLEGER)
7
23 . Defendant RONALD PFLEGER responded to Plaintiff's efforts to hold the penis-
8
grabbing Carmel Police Department officer accountable and to hold the police
9

10 department accountable for doing its job in seeing that the offending officer was brought
11
to justice and to Plaintiff's criticism of Carmel Police officers by retaliating against her.
12
24. Defendant derided Plaintiff, intimidated her with threats of criminal prosecution if
13

14 plaintiff did not desist from her efforts, and prepared a report causing the local district

15 attorney's office to prosecute Plaintiff for her conduct in calling the police department by
16
mischaracterizing her conduct as a violation of California Penal Code 653m, claiming
17

18 she had made harassing telephone calls to the police. As a result of defendant's

19 retaliation, defendant procured the filing of criminal charges against plaintiff through
20
false information and pressure brought to bear upon the district attorney's office to act to
21

22
protect local law enforcement agencies and to punish persons critical of local law

23 enforcement, and plaintiff was caused to be subjected to prosecution of a Strategic

24
Lawsuit Against Public Participation (SLAPP) in the form of a criminal complaint and
25
other criminal proceedings seeking to prosecute Plaintiff for her constitutionally
26

27 protected efforts to petition, criticize, and to obtain action from the Carmel police.
28

6
 Case 5:17-cv-03385-SVK Document 1 Filed 06/12/17 Page 7 of 14

25. Defendant's liability stems from 42 U.S.C. 1983, providing: "Every person, who
1

2 under color of any statute, ordinance, regulation, custom or usage of any state or territory
3
or the District of Columbia subjects or causes to be subjected any citizen of the United
4
States or other person within the jurisdiction thereof to the deprivation of any rights,
5

6 privileges or immunities secured by the constitution and law shall be liable to the party
7
injured in an action at law, suit in equity, or other appropriate proceeding for redress ..."
8
26. Plaintiff in this action is a citizen of the United States and Defendant, an individual
9

10 police officer, is a person for purposes of42 U.S.C. 1983.

11
27. At the time of the complained of events defendant knew or should have known the
12
First Amendment protects the right of a person to report to police, seek assistance from
13

14 police, to express disagreement with a police officer, to question the correctness of a

15 police officer's actions, and even to be "rude" to a police officer without fear of reprisal o
16
retaliation.
17

"!.8 28. Defendant further knew or reasonably should have known that it was not lawful to

19 use the authority entrusted to him as a police officer for the purpose of reprisal against a
20
private citizen for that citizen's exercise of her constitutional right to petition her
21

22
government or to criticize a government actor or to express herself concerning a

23 government agent or agency.

24
29. Defendant at all times relevant hereto was acting under the color of state law in his
25
capacity as a Carmel police officer and his acts or omissions were conducted within the
26

27 scope of his official duties or employment.

28

7
 Case 5:17-cv-03385-SVK Document 1 Filed 06/12/17 Page 8 of 14

1
30. At the time of the complained of events, Plaintiff was exercising her clearly

2 established First Amendment rights and was entitled to be free from retaliation for her
3
constitutionally protected exercise of petitioning activity and speech.
4
31 . Any reasonable police officer knew or reasonably should have known of this right
5

6 at the time of the complained of conduct as it was clearly established at that time.
7
32. Retaliatory animus tor Plaintiff's exercise of her constitutionally protected right to
8
report the conduct of a fellow officer for grabbing a child's penis and criticizing and
9

10 questioning whether the matter was being covered up by the Carmel Police Department

11
was a substantially motivating factor in causing the SLAPP to be prosecuted against
12
Plaintiff.
13

14 33. Defendant accused Plaintiff of criminal activity knowing those accusations to be

15 without probable cause, and he made statements to prosecutors with the intent of exerting
16
influence to institute and continue the judicial proceedings.
17

18 34. The SLAPP prosecution and other abuse imposed by Defendant upon Plaintiff in

19 retaliation for her protected conduct would chill and deter a person of ordinary fmnness
20
from continuing to engage in the protected conduct.
21

22
35. Defendant engaged in the conduct described by this Complaint willfully,

23 maliciously, in bad faith, and in reckless disregard of Plaintiff's federally protected

24
constitutional rights.
25
36. Defendant is not entitled to qualified immunity for the complained of conduct.
26

27 37. The acts or omissions of Defendants as described herein intentionally deprived

28
Plaintiff of her constitutional and statutory rights and caused her to suffer damages,

8
 Case 5:17-cv-03385-SVK Document 1 Filed 06/12/17 Page 9 of 14

including legal expenses and emotional distress involving humiliation, embarrassment

1

2 and mental suffering, in amounts to be determined at trial.

3
38. In addition to ~ompensatory, economic, consequential and special damages,
4
Plaintiff is entitled to punitive damages against Defendant under 42 U.S.C. 1983, in tha
5

6 his actions were taken maliciously, willfully or with a reckless or wanton disregard of the
7
constitutional rights of Plaintiff.
8
SECOND CLAIM FOR RELIEF 42 U.S.C. 1983- Against City of Carmel
9

10 39. Plaintiffhereby incorporates all other paragraphs ofthis Complaint as if fully set

11
forth herein.
12
40. Defendant RONALD PFLEGER at all times relevant hereto was acting pursuant to
13

14 municipal custom, policy, decision, ordinance, regulation, widespread habit, usage, or

15 practice in his retaliatory actions pertaining to Plaintiff.

16
41. Defendant CITY OF CARMEL was at all relevant times responsible for ensuring
17

18 that its police officers in the Carmel Police Department are properly trained and, in

19 particular, are adequately trained in respecting and protecting citizens who report crimes
20
and who otherwise exercise their First Amendment rights.
21

22
42. Under 42 U.S.C. 1983, municipal defendants such as CITY OF CARMEL are

23 ~persons" liable for unconstitutional customs, practices, and policies, and failure to train
24
their law enforcement officers.
25
43. Plaintiff is informed and believes that Defendant CITY OF CARMEL neglected
26

27 and failed to train its employees with respect to not retaliating against persons who
28
exercise their First Amendment rights. Plaintiff alleges that this neglect and failure

9
 Case 5:17-cv-03385-SVK Document 1 Filed 06/12/17 Page 10 of 14

1
amounts to deliberate indifference to the obvious need to avoid the situation of a police

2 otlicer reacting to a citizen who criticizes an officer or the police generally or is rude or
3
insists upon action from the police by wrongfully treating that person as a criminal and
4
arresting, charging or citing or having the person prosecuted for that person's exercise of
5

6 constitutionally protected rights.

7
44. As a proximate result of Defendant CITY OF CARMEL's unlawful conduct,
8
Plaintiff has suffered damages and losses as described herein entitling her to
9

10 compensatory and special damages, in amounts to be determined at trial.

11
THIRD CLAIM FOR RELIEF 42 U.S. C. 1983; Violation of the Fourth and
12 Fourteenth Amendments Malicious Prosecution -Injunctive Relief Against
Defendant Dean Flippo, District Attorney of Monterey County
13

14 45. Plaintiff hereby incorporates all other paragraphs of this Complaint as if fully set

15 forth herein.
16
46. At the time of the complained of events, Plaintiff had the clearly established
17

18 constitutional right to be free from malicious prosecution by a SLAPP for the exercise of

19 her constitutional rights and without probable cause under the Fourth Amendment and in
20
violation of due process under the Fourteenth Amendment.
21

22
47. Any reasonable police officer knew or should have known of these rights at the

23 time of the complained of conduct as they were clearly established at that time.
24
48. Defendant RONALD PFLEGER violated Plaintiff's Fourth and Fourteenth
25
Amendment rights to be free from malicious prosecution without probable cause and
26

27 without due process when he worked to secure false charges against Plaintiff, resulting in
28
her unlawful prosecution.

10
 Case 5:17-cv-03385-SVK Document 1 Filed 06/12/17 Page 11 of 14

49. Defendant RONALD PFLEGER incited, aided, abetted, conspired and/or acted in
1

2 concert with agents and employees ofDefendant DEAN FLIPPO, District Attorney of
3
Monterey County, to institute, procure and continue a criminal proceeding for making
4
harassing telephone calls against Plaintiff without probable cause.
5

6 50. Defendants RONALD PFLEGER and DEAN FLIPPO, District Attorney of

7
Monterey County, engaged in the conduct described by this Complaint willfully,
8
maliciously, in bad faith, and in reckless disregard of Plaintiff's federally protected
9

10 constitutional rights.
11
51. The criminal proceedings terminated in Plaintiff's favor. A court decision on the
12
merits in plaintiff's favor terminated case MS317393A on January 18, 2017. The
13

14 prosecutor dropped the charges in case MS333633A on May 1, 2017, without any

15 compromise by Plaintiff, reflecting a prosecutorial judgment that the case could not be
16
proven beyond a reasonable doubt.
17

18 52. Defendant DEAN FLIPPO, District Attorney of Monterey County, at all times

19 relevant hereto was acting pursuant to office policy or practice in its actions in filing and
20
prosecuting the SLAPP pertaining to Plaintiff. That policy or practice was one of
21

22
steadfastly defending the interests of law enforcement against challenges by private

23 citizens.
24
53. DEAN FLIPPO, District Attorney of Monterey County, failed to implement
25
adequate training of the staff at the district attorney 's office with respect to the
26

27 constitutional right of persons to report crimes, criticize police officers or the police
28
generally or to be rude or insist upon action from the police without suffering retaliation

11
 Case 5:17-cv-03385-SVK Document 1 Filed 06/12/17 Page 12 of 14

l
through prosecution of a criminal action for that First Amendment conduct. As a product

2 of this neglect and failure, the policy and practice of that office is to not investigate the
3
merits of charges involving citizen interactions with police and to vigorously defend law
4
enforcement interests unmitigated by the imperative need to guard the rights of citizens
5

6 who challenge police action or inaction and the responsibility to protect the innocent and
7
guard the rights of the accused. Nor is zealous advocacy curbed by the overarching
8
ethical and legal duty of a prosecutor to seek justice.
9

10 54. No investigation of the facts or the law was conducted by the Monterey County
11
District Attorney as required by California Code of Civil Procedure 128.7 before filing
12
the SLAPP.
13

14 55. Any reasonable attorney knew or should have known of First Amendment freedom

15 to Petition government for redress of grievances and freedom of speech and upon
16
reviewing the Carmel Police Department's report prior to the time the SLAPP was filed
17

18 against Plaintiff defendant knew or should have known that the reported incidents merely

19 involved Plaintiff exercising her clearly established constitutional rights of protected

20
petitioning activity and speech, not any criminal conduct. The facts and circumstances
21

22
were insufficient to justify a reasonable belief that Plaintiff had committed any offense.

23 Any reasonable attorney at this point knew or should have known that Plaintiff was
24
protected from retaliation for her exercise of her First Amendment rights.
25
56. The SLAPP prosecution of Plaintiffby the Monterey County District Attorney was
26

27 completely and utterly without merit and was brought for the improper purpose of
28

12
 Case 5:17-cv-03385-SVK Document 1 Filed 06/12/17 Page 13 of 14

l
punishing Plaintiff for the exercise of her First Amendment rights when she took Cannel

2 police department officers to task for their misdeeds and malfeasance.

3
57. Any reasonable attorney knew or should have known ofthis right after Plaintiff
4
demurred to the criminal complaint on the basis of her Petition and speech rights and the
5

6 demurrer was served upon the district attorney's office June 10, 2016.
7
58. Defendants caused Plaintiff to be improperly subjected to judicial proceedings for
8
which there was no factual basis, supporting legal basis or probable cause. These judicial
9

10 proceedings were instituted and continued maliciously, resulting in injury, and all such
11
proceedings were terminated in Plaintiffs favor in a manner indicative of innocence.
12
59. The Fourth Amendment's protection against unreasonable seizures encompasses
13

14 the right to be free from malicious prosecution.

15 60. Malicious prosecution is also prohibited by the Fourteenth Amendment's guarantee
16
against the deprivation of liberty without due process of law.
17

18 61. Defendant DEAN FLIPPO, District Attorney of Monterey County, while acting

19 under color of state law, violated Plaintiffs clearly established right under the Fourth and
20
Fourteenth Amendments by unlawfully and maliciously causing a criminal SLAPP
21

22
prosecution to be instituted against Plaintiff.

23 62. As a proximate result of the policies, practices and neglect of Defendant DEAN
24
FLIPPO, District Attorney of Monterey County, Plaintiff suffered and others suffer
25
wrongful prosecution for the exercise of First Amendment rights in Monterey County.
26

27 63. The misconduct described in this Count was undertaken with malice, willfulness,
28
and reckless indifference to the rights of others.

13
 Case 5:17-cv-03385-SVK Document 1 Filed 06/12/17 Page 14 of 14

1
64. A permanent injunction is in order to prevent the chilling effect these polices and

2 practices have upon the rights of Monterey County citizens to police their police: criticize
3
them, hold them accountable, report misfeasance by law enforcement, without fear of
4
reprisal for their public participation.
5

6 65. Injunctive relief is necessary to prohibit Defendant DEAN FLIPPO, District

7
Attorney of Monterey County, his officers, employees, or agents, and those acting on his
8
behalf or in concert with him from initiating or continuing criminal prosecutions against

10 persons who object to police action, criticize police action, seek information from police,
11
seek action from the police in the absence of documented evidence that they actually
12
physically interfered with the performance of official law enforcement duties.
13

14 DEMAND FOR RELIEF

15 Plaintiff respectfully requests that this court:
16
a. assert jurisdiction over this matter;
17

18
b. award compensatory and punitive damages to Plaintiff, in an amount to be proved at
trial;
19

20
c. grant injunctive relief against the prosecution of persons for the exercise of their
constitutional rights.
21

22
d. award Plaintiff her costs and attorneys' fees pursuant to 42 U.S.C. 1988; and

23 e. grant or award such other relief that this Court deems just and proper.
24
Dated: 6/1-1?--
25

26
Steve . Andre,. Attorney for Plaintiff,
27 STACY LININGER
28

14