In an expected filing, attorneys for defendants Agnes Botelho and Clark County responded to self-taught legal scholar Jose “Chille” DeCastro’s recent “oh no you didn’t” response to a ruling by District Court Judge Brenda Weksler’s ruling in favor of the defendants to stay discovery in the lawsuit DeCastro filed against them as she felt that the defendants more than likely were going to win their motion to dismiss.
DeCastro is suing nearly everyone involved in his 2024 conviction on charges of obstructing an officer and interfering with a traffic stop and acquittal of the same charges. As we’ve previously reported, DeCastro is currently awaiting a response to his request to serve both Judges involved his conviction via publication or e-mail, as he’s been unable to serve either judge since filing the lawsuit almost a year ago.
Weksler’s ruling that granted a stay of discovery came on April 13, with DeCastro filing an official objection on April 20. DeCastro had shown part of the objection on a livestream where he was attempting to air a confidential settlement meeting between his lawyer, himself and opposing council.
That expert legal maneuvering aside, DeCastro’s response to Weksler’s ruling consisted of what some have said was the AI written equivariant to “no no no, oh no you didn’t, no no no, you’re wrong.”
The defendants filed eight pages in response to DeCastro’s objection, which is summed up by the introductory paragraph they offered: This court correctly held that a stay of discovery is warranted pending Defendants Botelho and Clark County’s dispositive motion to dismiss. In opposition, Plaintiff merely disagrees with this Court’s ultimate conclusion, conclusory cites incorrect legal standards, and alleges new legal theories for the first time. This Court has no reason to deviate from its prior decision. This Court should reject Plaintiff’s arguments.
The defense, however, needed to address new charges of malicious prosecution against defendant Botelho that DeCastro made in his objection, and had not included in his original or amended complaints:
This Court correctly held that it believes that Botelho is entitled to prosecutorial immunity. As noted by this Court, the only claims made by Plaintiff against Botelho were that Botelho (1) recommended a suspended sentence and fine at the original sentencing hearing, (2) recommended that Plaintiff remain incarcerated thereafter, and (3) failed to correct known false testimony. ECF No. 30, p. 3, ¶¶ 4-10 (citing ECF No. 7 at 13). And, as this Court correctly noted, binding authority holds that these actions are entitled to immunity. See Peace v. Baker, 697 F. Supp. 1145, 1147 (D. Nev. 1988) (advocating in connection with sentencing fits squarely within a traditional function of an advocate); Genzler v. Longanbach, 410 F.3d 630, 637 (9th Cir. 2005) (prosecutors enjoy absolute immunity from claims that they used perjured testimony at trial). Plaintiff does not meaningfully refute this Court’s correct finding on this point.
Instead, for the first time, Plaintiff raises a theory of “vindictive prosecution.” ECF No. 31, p.4. Plaintiff has never alleged a claim of vindictive prosecution in the operative complaint and may not do so for the first time now. See Christianson v. United States, 706 F. Supp. 3d 1057, 1071 (D. Idaho 2023) (citing Echlin v. PeaceHealth, 887 F.3d 967, 977-78 (9th Cir. 2018)) (holding that “it is impermissible to add a new claim or assert a new legal theory for the first time” when not raised in the operative complaint). Moreover, a claim for vindictive prosecution is raised as part of a defendant’s criminal proceedings and would not even be properly before this court in this case. See e.g., U.S. v. Spiesz, 689 F.2d 1326 (9th Cir. 1982) (criminal defendant filed a pre-trial appeal from the district court’s order denying a motion to dismiss two superseding indictments on the ground of vindictive prosecution); U.S. v. Montoya, 45 F.3d 1286, 1299 (9th Cir. 1995) (criminal defendants argued on appeal that the district court should have dismissed an indictment based on vindictive prosecution).
Furthermore, notwithstanding that these arguments are not even properly before this court, Plaintiff has failed to make a prima facie showing of vindictive prosecution. “A claim for vindictive prosecution arises when the government increases the severity of alleged charges in response to the exercise of constitutional or statutory rights.” Spiesz, 689 F.2d at 1328. Here, even taking Plaintiff’s assertions as true, Plaintiff has never alleged that Botelho increased the severity of the alleged charges in response to constitutionally protected activity. Instead, Plaintiff argues that Botelho, after the original sentencing, advocated for a harsher sentence than originally recommended. ECF No. 7, p. 7, ¶¶ 37-38. Plaintiff seems to conflate charging decisions made by the prosecutor with recommendations made for sentencing which are determined by the judge. And Plaintiff concedes that no change in course was made by Botelho in response to the exercise of constitutional rights, as Plaintiff argues that Botelho reversed course concerning sentencing recommendations “despite no new facts [or] evidence.” ECF No. 7, p. 7, ¶ 38. Thus, the vindictive prosecution claim is entirely without merit.
DeCastro is expected to respond to the filing within the next two weeks. We’ll provide coverage as he files.
