Jose “Chille” DeCastro’s life got slightly easier on Tuesday when United States Magistrate Judge Brenda Weksler ordered a stay on discovery in his lawsuit against nearly everyone involved in his 2024 conviction and acquittal of charges of interference in a traffic stop and obstruction of an officer.
Judge Weksler had previously ordered a hearing set for Thursday in Las Vegas between DeCastro and representatives of defendants Clark County, Nevada and Clark County Deputy District Attorney Agnes Botelho to go over the motion by Clark County and Botelho to stay discovery while their motion to dismiss is being heard.
DeCastro had feverously opposed the motion, stating that despite the defendants claiming that Botelho’s immunity and Clark County’s personhood could be determined through existing law without the need for an extensive discovery process.
On Tuesday, Judge Weksler agreed with Clark County and Botelho, cancelling the hearing as she determined that the pair of defendants would more than likely be granted their motion to dismiss by United States District Court Judge Andrew P. Gordon.
In regards to Botelho, Weksler wrote:
Prosecutors are absolutely immune against suits under 42 U.S.C. § 1983 that are based on the “performance of prosecutorial functions, even if the acts in question were committed in bad faith.” Patterson v. Van Arsdel, 883 F.3d 826, 829-30 (9th Cir. 2018). To determine whether immunity applies, courts look to the function being performed, not who performed it. Id. at 830. Acts of advocacy are immunized, while administrative or “police-type investigative acts” are not. Id. (quotation omitted).
Plaintiff alleges that Deputy District Attorney Agnes Botelho engaged in the following acts: (1) “[a]t the original sentencing hearing on March 17, 38. 2024, Deputy District Attorney Agnes Botelho recommended a suspended sentence and a fine” (ECF No. 7 at 7); (2) “[a]pproximately one week later, at the appeal bond hearing, Prosecutor Botelho completely reversed her position and recommended that Plaintiff remain incarcerated, despite no new facts, evidence, or legal authority supporting the harsher position” (Id.); and (3) “Botelho failed to correct known false testimony” during trial (ECF No. 7 at 13).
Based on the case law cited above, this Court believes Defendant Botelho is entitled to prosecutorial immunity. Moreover, Judge Gordon, who will decide the motion to dismiss, has previously relied on binding authority to hold that prosecutors are immune from suits arising “from their performance of prosecutorial functions, even if the acts in question were committed in bad faith.” Bristow v. Sanchez, No. 2:22-cv-01092-APG-EJY, 2023 WL 3620553, at *3 (D. Nev. May 23, 2023). He further noted that acts of advocacy—those intimately associated with the judicial phase of the criminal process—are protected by absolute immunity. Id. This includes claims that a prosecutor maliciously initiated a prosecution, used perjured testimony, or suppressed material evidence at trial. Id.
Here, the conduct alleged—that Defendant Botelho altered her sentencing position and failed to correct allegedly false testimony—falls squarely within the scope of prosecutorial functions intimately associated with the judicial phase of the criminal process. Whether she acted in bad faith or not is irrelevant to this inquiry. Accordingly, this Court believes she will be entitled to absolute immunity from suit.
She also determined the following about Clark County:
First, this Court agrees with Defendants that the overwhelming majority of Plaintiff’s allegations are directed against an officer from the Las Vegas Metropolitan Police Department (“Metro”) and the actions of state court judges. His claim, entitled “Enhanced Monell Liability,” generally (and in conclusory fashion) alleges (1) Metro’s failure to act in compliance with LVPPA training and (2) the coordinated acts of law enforcement, the judiciary, and (to a lesser extent) the prosecution.2
Plaintiff appears to believe that Clark County can be held liable for the actions of Metro and the state court judges. But Metro is its own separate legal entity. NRS 280.280(3)- (4). And “the legislative and executive branches are strictly prohibited from infringing on the court’s ‘incidental powers reasonable and necessary to carry out the duties required for the administration of justice.’” City of Sparks v. Sparks Mun. Ct., 129 Nev. 348, 363, 302 P.3d 1118, 1129 (2013) (citing Goldberg v. Eighth Judicial Dist. Court, 93 Nev. 614, 616, 572 P.2d 521, 522 (1977). Thus, the judges’ actions are not within the control of Clark County.
Next, Clark County cannot be held vicariously liable for the acts of Deputy District Attorney Botelho. Even if this Court assumes (1) that Clark County may be treated as a “person” under section 1983, and (2) that Plaintiff actually alleged conduct by Clark County independent of the other defendants, the amended complaint still fails to allege facts sufficient to state a Monell claim. Plaintiff does not allege the existence of any expressly adopted policy or facts to show a longstanding practice or custom. Instead, he offers only conclusory allegations that his constitutional rights were violated in retaliation for his commentary on police accountability. As a result, this Court believes this claim will be dismissed.
In sum, a preliminary review of the motion to dismiss convinces this Court that Plaintiff has failed to state a claim against these two defendants. In turn, this Court finds that staying discovery in this case will further the goals enunciated in Federal Rule of Civil Procedure 1.
It’s unclear if DeCastro can appeal the decision by Judge Weksler and the motion to dismiss, if granted, would only apply to the two named defendants. All other defendants, who have yet to be served, would still be facing charges by the diminutive YouTuber.
As usual, his exposure from the ruling did nothing to spark DeCastro’s on-going related GoFundMe campaigns.
Jonathan “Frauditor Troll” Hudon-Huneault won Wednesday with $2.00 in value gained by his Help us Fight this anti-free speech retaliation lawsuit campaign due to conversion changes between USD and CAD.
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