STEVEN L. KAYSER; GLORIA YOUNG, individually, and as husband and wife v. Whatcom County, a political subdivision of the State of Washington

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVEN L. KAYSER; GLORIA YOUNG,
individually, and as husband and wife,
Plaintiffs-Appellants,
v.
WHATCOM COUNTY, a political
subdivision of the State of Washington;
DAVID S. MCEACHRAN, Prosecuting
Attorney for Whatcom County,
Defendants-Appellees.
No. 21-35860
D.C. No. 2:18-cv-01492-RSM
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
Ricardo S. Martinez, Chief District Judge, Presiding
Submitted June 6, 2022**
Seattle, Washington
Before: GILMAN,*** IKUTA, and MILLER, Circuit Judges.
* 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).
*** The Honorable Ronald Lee Gilman, United States Circuit Judge for
the U.S. Court of Appeals for the Sixth Circuit, sitting by designation.
FILED
JUN 28 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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Plaintiffs Steven L. Kayser and Gloria Young appeal the district court’s
grant of summary judgment in favor of Defendants Whatcom County and
Prosecutor David S. McEachran. We have jurisdiction under 28 U.S.C. § 1291,
and we affirm.
A county can be liable under 42 U.S.C. § 1983 if the county “itself ‘subjects’
a person to a deprivation of rights or ‘causes’ a person ‘to be subjected’ to such
deprivation.” Connick v. Thompson, 563 U.S. 51, 60 (2011) (citation omitted). In
Kayser v. Whatcom County (Kayser I), 804 F. App’x 620, 622 (9th Cir. 2020), we
affirmed the district court’s decision to dismiss for failure to state a claim
Plaintiffs’ Brady claims that were based on the County’s alleged longstanding
practice or custom of unconstitutionally suppressing evidence and the County’s
alleged failure to train its employees about their constitutional duties. We based
this conclusion on the fact that Plaintiffs had “failed to allege that the County
suppressed evidence in any case other than [Kayser’s] two trials.” Id. (citation
omitted). But we also held that Plaintiffs’ allegations were sufficient to state
a § 1983 claim against the County and McEachran “for constitutional injuries
inflicted by the implementation of a local government’s official policies.” Id.
(citation omitted).
Because McEachran was sued in his official capacity only, Plaintiffs’ claims
are solely against the County. Kentucky v. Graham, 473 U.S. 159, 165–66 (1985)

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(holding that official-capacity suits “represent only another way of pleading an
action against an entity of which an officer is an agent” (citation omitted)). Based
on the evidence produced after remand, we now affirm the district court’s decision
that Defendants did not implement an unconstitutional Brady policy.
The only written policy relevant to our analysis is the Prosecutor’s because
this was the only written policy in place by the time of Kayser’s trial in 2013.
Nothing in the record demonstrates that the Prosecutor’s 2013 policy caused the
alleged deprivation of Kayser’s constitutional rights by allowing the prosecution to
impermissibly omit Brady material from its disclosures. Although the policy
specifically addresses the disclosure of Brady material as it applies to impeachment
evidence for recuring investigative or professional witnesses, the policy does not
state that it encompasses all of the requirements associated with disclosing Brady
material. Rather, the policy provides that prosecutors have an “affirmative duty to
disclose potentially exculpatory information to a charged defendant.” We thus
agree with the district court that “the policy specifically addressed a smaller galaxy
within the Brady universe[,]” but this does not “imply that prosecutors were free to
destroy all other galaxies in the Brady universe” based on the Prosecutor’s policy.
Plaintiffs’ arguments on this point are unavailing. They first contend that
because the Sheriff had no written Brady policy during the time that Kayser was
charged and tried―and the Prosecutor did not adopt a written policy until June

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2013―the County committed a constitutional violation. But Plaintiffs cite no
authority to support their argument that the lack of a written policy is ipso facto
unconstitutional.
In addition, Plaintiffs argue that the lack of a general written Brady policy
“caused consistent misunderstandings” about what must be disclosed under Brady
and created “unwritten policies [that] would necessarily deprive defendants of their
constitutional rights.” The argument that the County had an unwritten policy of
omitting Brady material amounts to an argument that it abided by a custom or
practice to do so. But we have already dismissed such a claim. See Kayser I, 804
F. App’x at 622.
In the absence of any general municipal policy, there are “three situations in
which isolated constitutional violations are sufficient to establish a municipal
‘policy.’” Christie v. Iopa, 176 F.3d 1231, 1235 (9th Cir. 1999). All three
situations hinge upon a finding that an individual with “final policymaking
authority” was involved in the constitutional violations. Id. at 1235–38.
Plaintiffs make arguments about the ways in which Eric Richey (the deputy
prosecutor involved in Kayser’s case and the current elected Whatcom County
Prosecutor) evinced a failure to understand his Brady obligations. But Plaintiffs
have not made any argument that Richey had final policymaking authority over the
County’s Brady policy or the failure to disclose potentially exculpatory material to

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Kayser. The single constitutional violation that Kayser allegedly suffered therefore
does not establish an unconstitutional policy on the part of the County.
AFFIRMED.

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