Dal Molin v. County of Napa Conservation, Development & Planning Department

MEMORANDUM * William Dal Molin and Chris Malan (Appellants) appeal the dismissal of their suit under 42 U.S.C. § 1983 . They allege that the district court erred when it held that Malan lacked standing and that Appellants had presented insufficient evidence to maintain a claim of malicious or selective prosecution. The district court did not err, and we affirm. Malan contends that the prosecution of her father as retaliation for her political activity confers standing on her to sue for a violation of her First Amendment rights. Her argument is squarely foreclosed by Biggs v. Best, Best & Krieger, 189 F.3d 989, 992-93 (9th Cir.1999). Appellants argue that, because they alleged that Dal Molin’s prosecution was motivated by malice and bad faith, the district court should have proceeded to trial on a claim of malicious prosecution. However, Appellants failed to allege, or introduce evidence to suggest, that Dal Molin was prosecuted in the absence of probable cause. See Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004). The district court was therefore correct to grant summary judgment against Appellants on their malicious prosecution claim. Appellants likewise failed to substantiate their selective prosecution claim. In order to maintain a claim of selective prosecution, a plaintiff must show that similarly situated individuals were not prosecuted unless they were members of a targeted class. See Wayte v. United States, 470 U.S. 598, 608-610 , 105 S.Ct. 1524 , 84 L.Ed.2d 547 (1985); United States v. Armstrong, 517 U.S. 456, 463 , 116 S.Ct. 1480 , 134 L.Ed.2d 687 (1996). Appellants have not shown that the several individuals who were prosecuted under similar circumstances were also related to political activists. Nor have they shown that the *586 individuals who went unprosecuted were unrelated to political activists. The district court was therefore correct to grant summary judgment against Appellants on their selective prosecution claim. AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. NOONAN, Circuit Judge, concurring: Regrettably, Biggs controls unless it is overruled. The result is regrettable because it gives a tool to petty tyrants to torment their enemies by prosecuting a parent, child or spouse. In the America that I am familiar with, injury to anyone in one of these relationships is the same, or worse, as an injury to oneself. The smell in this case is not good.