                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


FREDERICK LEE JACKSON,                   No. 09-55763
                Plaintiff-Appellant,
                                            D.C. No.
                 v.                      2:04-cv-08017-
                                           RSWL-RZ
MICHAEL BARNES; VENTURA
COUNTY SHERIFF’S DEPARTMENT;
VENTURA COUNTY DISTRICT                    OPINION
ATTORNEY’S OFFICE; PATRICIA M.
MURPHY,
            Defendants-Appellees.


     Appeal from the United States District Court
         for the Central District of California
   Ronald S.W. Lew, Senior District Judge, Presiding

                 Argued and Submitted
         January 8, 2013—Pasadena, California

                  Filed April 15, 2014

   Before: William C. Canby, Jr., Stephen Reinhardt,
      and Kim McLane Wardlaw, Circuit Judges.

              Opinion by Judge Reinhardt
2                      JACKSON V. BARNES

                           SUMMARY*


                            Civil Rights

    The panel reversed the district court’s dismissal of
Frederick Jackson’s three claims brought against Ventura
County officials and Departments under 42 U.S.C. § 1983,
related to Miranda violations that resulted in the vacation of
Jackson’s initial first degree murder conviction.

    Jackson’s initial first degree murder conviction was
reversed due to a violation of his Miranda rights, and after a
retrial, he was again convicted, this time without the use of
the illegally obtained evidence.

    The panel reversed the district court’s rulings with respect
to all three of Jackson’s claims in whole or in part.
Regarding Jackson’s claim that Ventura County Sheriff
Michael Barnes violated his Fifth Amendment rights by
interrogating him without giving him the requisite Miranda
warnings, the panel held that the claim is neither barred under
Heck v. Humphrey, 512 U.S. 477 (1994), nor time-barred and
that Jackson may be able to show that he was entitled to
damages, if only nominal. Regarding Jackson’s claim that
the Ventura County Sheriff’s Department violated his Fifth
Amendment rights by failing to supervise Barnes, the panel
reversed the district court’s judgment on the pleadings for the
Sheriff’s Department because Jackson sufficiently pleaded a
“policy of inaction” for which the Sheriff’s Department, as a
county actor, was subject to suit under § 1983. The panel

  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                     JACKSON V. BARNES                        3

held that Jackson properly pleaded a claim of Monell v.
N.Y.C. Dep’t of Soc. Servc., 436 U.S. 658 (1978), liability,
and the Sheriff’s Department was subject to suit under
42 U.S.C. § 1983 for its investigative activities. The panel
further held that the California Supreme Court’s holding in
Vengas v. Cnty of L.A., 87 P.3d 1 (Cal. 2004), did not displace
this court’s holding in Brewster v. Shasta Cnty., 275 F.3d
803, 807-08 9th Cir. 2001), that a California sheriff is a
county official when investigating criminal activity. Finally,
the panel affirmed the district court’s dismissal of Jackson’s
claim of prosecutorial misconduct against the Ventura County
District Attorney’s Office, but instructed the district court to
grant Jackson leave to amend his complaint to state a claim
against Ventura County District Attorney Patricia Murphy.


                         COUNSEL

Todd E. Lundell (argued) and Richard A. Derevan, Snell &
Wilmer, Costa Mesa, California, for Plaintiff-Appellant.

Jeffrey Held (argued) and Alan E. Wisotsky, Wisotsky,
Procter & Shyer, Oxnard, California, for Defendants-
Appellees.
4                    JACKSON V. BARNES

                          OPINION

REINHARDT, Circuit Judge:

    This is an unusual case in which the plaintiff is suing
under 42 U.S.C. § 1983 for damages as a result of his
conviction for first degree murder in violation of his Fifth
Amendment rights. The case is unusual in that the plaintiff
was convicted at his first trial in which the prosecution relied
on evidence obtained in violation of his Miranda rights, and
after the conviction was reversed he was again convicted, this
time without the use of the illegally obtained evidence. The
plaintiff then sued for the violation of his Miranda rights at
the first trial. As a result of unusual circumstances, the
plaintiff, even if successful, will in all likelihood recover only
minimal damages. Nonetheless, we conclude that this is one
of those cases in which a plaintiff who has been lawfully
convicted is not barred by Heck v. Humphrey, 512 U.S. 477
(1994), from bringing a § 1983 suit. We also consider which
individuals and entities are proper defendants in this action,
including whether we must follow our prior decision in
Brewster v. Shasta County, 275 F.3d 803 (9th Cir. 2001), that
a California sheriff is a county actor when investigating
crimes.

                                I.

     In 1995, Frederick Lee Jackson was convicted in Ventura
County Superior Court of rape and first degree murder. At
trial, the jurors heard a taped interview conducted by Sergeant
Michael Barnes of the Ventura County Sheriff’s Department.
Barnes had interviewed Jackson while Jackson was in police
custody, and without giving Jackson the requisite Miranda
warnings. In the interview, Jackson admitted to Barnes that
                      JACKSON V. BARNES                          5

he “just happened to be there,” i.e., at the scene of the
murder. This statement contradicted Jackson’s earlier
statement that he was not at the scene of the murder but rather
with his girlfriend—a statement the jurors also heard. See
generally Jackson v. Giurbino, 364 F.3d 1002, 1005, 1007–12
(9th Cir. 2004).

    On habeas review in 2004, we vacated Jackson’s
conviction for first degree murder.1 Deeming the question
“refreshingly simple,” we held that Jackson’s rights under
Miranda v. Arizona, 384 U.S. 436 (1966), were violated when
Barnes interrogated him while he was in custody without
giving him the requisite Miranda warnings. As a result,
Jackson’s inculpatory statement during this interrogation that
he “just happened to be” at the scene of the murder was held
inadmissible. Jackson, 364 F.3d at 1008–10. We further held
that the trial court’s constitutional error in admitting
Jackson’s statement was not harmless, and vacated Jackson’s
conviction for murder. Id. at 1011–12.

    In 2005, the state retried Jackson. The retrial was
completely insulated from the illegal testimony; the jurors did
not learn of Jackson’s statement to Barnes that he “just
happened to be” at the scene of the crime. At the second trial,
the jury, without hearing the illegally obtained evidence,
convicted Jackson once again on the first degree murder
charge, and Jackson was sentenced to 26 years’
imprisonment.

   Before the second trial, but after Jackson’s initial
conviction had been vacated, Jackson, proceeding pro se,

  1
    We did not, however, vacate Jackson’s rape conviction. Jackson,
364 F.3d at 1011–12.
6                    JACKSON V. BARNES

filed the complaint that is the subject of this appeal. He brings
three claims under 42 U.S.C. § 1983, all related to the
Miranda violation that resulted in our vacating his first
conviction. First, he contends that Barnes’s un-Mirandized
interrogation violated his Fifth Amendment rights because his
resulting inculpatory statements were used against him at
trial. Second, he claims that the Ventura County Sheriff’s
Department violated his Fifth Amendment rights by failing to
supervise Barnes. Third, he asserts that Ventura County
District Attorney Patricia M. Murphy and the Ventura County
District Attorney’s Office engaged in various illegal acts in
prosecuting him. Jackson seeks millions of dollars in
damages for these offenses. The district court granted
summary judgment to Barnes, granted judgment on the
pleadings to the remaining defendants, and dismissed the suit
with prejudice. Jackson appeals the district court’s dismissal
of all three of his claims. We reverse.

                               II.

     Jackson first contends that the district court erred when it
awarded defendants summary judgment on his claim that
Barnes violated his Fifth Amendment rights by eliciting un-
Mirandized inculpatory testimony that was used against him
at trial. The district court rejected this claim on the ground
that it was barred by Heck v. Humphrey, 512 U.S. 477 (1994).
Defendants argue that, in addition to Heck, the claim is time-
barred, and that, even if Jackson were to succeed on the
claim, he would not be entitled to any damages. We hold that
the grant of summary judgment was erroneous.
                         JACKSON V. BARNES                                7

                                    A.

    In Heck v. Humphrey, the United States Supreme Court
held that:

         [I]n order to recover damages for allegedly
         unconstitutional conviction or imprisonment,
         or for other harm caused by actions whose
         unlawfulness would render a conviction or
         sentence invalid, a § 1983 plaintiff must prove
         that the conviction or sentence has been
         reversed on direct appeal, expunged by
         executive order, declared invalid by a state
         tribunal authorized to make such
         determination, or called into question by a
         federal court’s issuance of a writ of habeas
         corpus. . . . A claim for damages bearing that
         relationship to a conviction or sentence that
         has not been so invalidated is not cognizable
         under § 1983.

512 U.S. at 486–87 (footnote omitted).2 The Court also stated
in Heck, however, that “if the district court determines that
the plaintiff’s action, even if successful, will not demonstrate
the invalidity of any outstanding criminal judgment against
the plaintiff, the action should be allowed to proceed, in the
absence of some other bar to the suit.” Id. at 487.

    Subsequently, we held that under certain circumstances a
plaintiff’s § 1983 claim is not Heck-barred despite the
existence of an outstanding criminal conviction against him.

  2
    This is generally referred to as the “Heck bar.” Beets v. Cnty. of L.A.,
669 F.3d 1038, 1042 (9th Cir. 2012).
8                    JACKSON V. BARNES

For example, in Ove v. Gwinn, 264 F.3d 817 (9th Cir. 2001),
we held that plaintiffs who had been convicted for driving
under the influence of alcohol could challenge the way in
which their blood had been drawn when they were arrested
because their convictions were in no way the result of any
blood evidence. The plaintiffs had pled nolo contendre, but
since the “convictions derive[d] from their pleas, not from
verdicts obtained with supposedly illegal evidence[, t]he
validity of their convictions does not in any way depend upon
the legality of the blood draws.” 264 F.3d at 823; see also
Lockett v. Ericson, 656 F.3d 892, 896–97 (9th Cir. 2011)
(holding that a plaintiff who pled nolo contendre to reckless
driving was not Heck-barred from bringing a § 1983 claim
based on an alleged unlawful search because the outcome of
the claim had no bearing on the validity of the plaintiff’s
plea); Smith v. City of Hemet, 394 F.3d 689, 693 (9th Cir.
2005) (en banc) (holding that a plaintiff convicted of resisting
arrest could bring a § 1983 action for excessive use of force
if the excessive force was employed against him after he had
engaged in the conduct that constituted the basis for his
conviction, because in such a case success on his § 1983
action would not imply the invalidity of the conviction).

    This, too, is a case in which a guilty plaintiff’s claim is
not barred by Heck. In this case it is Jackson’s second
conviction for first degree murder that is outstanding. It is
undisputed that the second conviction was insulated from the
inculpatory statements that are the subject of Jackson’s
§ 1983 suit against Barnes. The first conviction is the case in
which the Fifth Amendment violation occurred. Therefore a
judgment in Jackson’s favor would—far from “necessarily
imply[ing]” the invalidity of his second conviction—not have
any bearing on it. The only conviction a judgment in
Jackson’s favor would bear on is his first conviction, which
                     JACKSON V. BARNES                         9

was “called into question by a federal court’s issuance of a
writ of habeas corpus.” In fact, more than “called into
question,” it was reversed. See Jackson, 364 F.3d at 1011.
Thus, Jackson’s § 1983 claim against Barnes for the Fifth
Amendment violation is not barred by Heck.

     Our holding is similar to that of the Second Circuit in
Poventud v. City of New York, No. 12-1011-CV, 2014 WL
182313, — F.3d — (2d Cir. Jan. 16, 2014) (en banc). In that
case, the plaintiff was convicted of attempted murder, his
conviction was vacated because of a Brady violation, and he
then pled guilty to the lesser charge of attempted robbery. Id.
at *1. The plaintiff brought a § 1983 suit against the City of
New York and various police officers for the Brady violation.
Id. The district court rejected the claim as Heck-barred, and
the Second Circuit reversed. It held that “because [the
plaintiff] was aware of the undisclosed exculpatory material
prior to his guilty plea,” his second conviction is a “‘clean’
conviction, untainted by the Brady violation associated with
the [initial] conviction.” Id. at *12. Therefore, the court
concluded, “a favorable judgment in this § 1983 action would
not render invalid” the plaintiff’s second conviction, and thus
his claim is not barred by Heck. Id. Similarly, here, Jackson’s
second conviction is a “clean conviction,” as it was entirely
insulated from the Miranda violation associated with his
initial conviction. As in Poventud, “[w]ere [Jackson] to win
at trial [of his § 1983 action] . . . the legal status of his
[second conviction] would remain preserved.” Id. at *13.
Therefore, his claim against Barnes is not barred by Heck. See
also Smith v. Gonzales, 222 F.3d 1220, 1222 (10th Cir. 2000)
(holding that a plaintiff’s § 1983 suit for a Brady violation
would not have been Heck-barred even if the state had elected
to retry him, as “under [the] holding in [the plaintiff’s] habeas
case, the prosecution was effectively prevented from
10                      JACKSON V. BARNES

withholding the same exculpatory evidence if the State
decided to retry [him],” and therefore “a favorable judgment
in a § 1983 action would not have rendered invalid any
outstanding criminal judgment against [him]”).3

                                   B.

    Defendants next contend that even if Heck does not bar
Jackson’s suit, the suit is barred by the statute of limitations.
They are incorrect. In Heck, the Supreme Court stated that “a
§ 1983 cause of action for damages attributable to an
unconstitutional conviction or sentence does not accrue until
the conviction or sentence has been invalidated.” 512 U.S. at
489–90. We have applied this rule to a § 1983 suit based on
a Fifth Amendment violation. See Trimble v. City of Santa
Rosa, 49 F.3d 583, 585 (9th Cir. 1995) (per curiam). Under
Heck and Trimble, Jackson’s Fifth Amendment claim accrued
when his initial conviction was overturned in March 2004.
The length of the limitations period for § 1983 actions is
governed by state law. Jones v. Blanas, 393 F.3d 918, 927
(9th Cir. 2004). The parties agree, as they must, that the
applicable statute of limitations under California law is two
years. Id. (“For actions under 42 U.S.C. § 1983, courts apply
the forum state’s statute of limitations for personal injury
actions. . . . Effective January 1, 2003, the new California
statute of limitations for assault, battery, and other personal
injury claims is two years instead of one.” (citing Cal. Civ.
Proc. Code § 335.1)). Jackson filed his complaint in


 3
   We reject defendants’ contention that DiBlasio v. New York, 102 F.3d
654, 657 (2d Cir. 1996), requires us to hold that Jackson’s claim is Heck-
barred. The holding of DiBlasio is limited to malicious prosecution cases,
and therefore has no bearing on Jackson’s Fifth Amendment claim against
Barnes. See Poventud, 2014 WL 182313, at **6–8.
                     JACKSON V. BARNES                       11

September 2004, six months after his claim accrued and well
within the statute of limitations. Thus, Jackson’s claim is not
time-barred.

                              C.

    Defendants also contend that summary judgment was
properly awarded to Barnes because, even if Jackson
succeeds on the merits of his claim, he cannot show that he is
entitled to damages. Defendants point out that Jackson was
not imprisoned for any additional time as a result of his first,
illegal conviction. They are correct, as at the time of
Jackson’s first conviction he had already begun to serve 29
years for various unrelated convictions. His earliest release
date for those convictions, along with the rape conviction on
which this Court denied relief, was in 2007, two years after
Jackson was convicted for the second time. Thus, as
defendants assert, Jackson is not entitled to compensatory
damages for any time he spent in prison.

    The fact that Jackson is not entitled to compensatory
damages for any time he spent in prison does not mean,
however, that he would not be entitled to any damages were
he to prevail on the merits of his action. Although the district
court did not reach the damages issue, it is clear, for example,
that punitive damages may be recovered in appropriate
circumstances under § 1983. See Smith v. Wade, 461 U.S. 30,
56 (1983) (“[A] jury may be permitted to assess punitive
damages in an action under § 1983 when the defendant’s
conduct is shown to be motivated by evil motive or intent, or
when it involves reckless or callous indifference to the
federally protected rights of others.”). More important,
success on the merits of his Fifth Amendment claim would
entitle Jackson to an award of nominal damages. See
12                  JACKSON V. BARNES

Schneider v. Cnty. of San Diego, 285 F.3d 784, 794 (9th Cir.
2002) (“[N]ominal damages must be awarded if a plaintiff
proves a violation of his [or her] constitutional rights.”
(quoting Estate of Macias v. Ihde, 219 F.3d 1018, 1028 (9th
Cir. 2000))).

                             D.

    In sum, we hold that Jackson’s claim that Barnes violated
his Fifth Amendment rights is neither Heck-barred nor time-
barred, and that Jackson may be able to show that he is
entitled to damages, especially nominal damages, for the
Miranda violation. Therefore, we reverse the district court’s
grant of summary judgment in favor of defendants on the
Miranda claim and remand for further proceedings.

                            III.

    Jackson next asserts that the district court erred in
dismissing on the pleadings his claim that the Ventura County
Sheriff’s Department caused the violation of his Fifth
Amendment rights by failing to supervise Barnes. The district
court held that this claim was based solely on a theory of
respondeat superior, which the Supreme Court rejected as a
basis for liability under § 1983 in Monell v. N.Y.C. Dep’t of
Soc. Servs., 436 U.S. 658 (1978). Jackson contends that the
district court misread his complaint.

                             A.

   In Monell, the Supreme Court held that a local
government body (such as, in this case, a sheriff’s
department) cannot be held liable under § 1983 “solely
because it employs a tortfeasor—or, in other words, a
                     JACKSON V. BARNES                        13

municipality cannot be held liable under § 1983 on a
respondeat superior theory.” Id. at 691. Local governing
bodies can be held liable, however, where “the action that is
alleged to be unconstitutional implements or executes a
policy statement, ordinance, regulation, or decision officially
adopted and promulgated by that body’s officers,” or where
the action is made “pursuant to governmental ‘custom’ even
though such a custom has not received formal approval
through the body’s official decisionmaking channels.” Id. at
690–91.

     Under Monell, a local government body can be held liable
under § 1983 for policies of inaction as well as policies of
action. See Gibson v. Cnty. of Washoe, 290 F.3d 1175,
1185–86 (9th Cir. 2002). A policy of action is one in which
the government body itself violates someone’s constitutional
rights, or instructs its employees to do so; a policy of inaction
is based on a government body’s “failure to implement
procedural safeguards to prevent constitutional violations.”
Tsao v. Desert Palace, Inc., 698 F.3d 1128, 1143 (9th Cir.
2012). In inaction cases, the plaintiff must show, first, “that
[the] policy amounts to deliberate indifference to the
plaintiff’s constitutional right.” Id. (citations omitted)
(internal quotation marks omitted). This requires showing
that the defendant “was on actual or constructive notice that
its omission would likely result in a constitutional violation.”
Id. at 1145 (citations omitted). Second, the plaintiff must
show “that the policy caused the violation in the sense that
the municipality could have prevented the violation with an
appropriate policy.” Id. at 1143 (citations omitted) (internal
quotation marks omitted).

    Jackson’s claim against the Sheriff’s Department, when
liberally construed, see Allen v. Gold Country Casino,
14                   JACKSON V. BARNES

464 F.3d 1044, 1048 (9th Cir. 2006) (holding that a pro se
litigant’s pleadings must be “liberally construed”), adequately
states a policy of inaction. Jackson’s alleged “policy of
inaction” is the Department’s “complete failure to supervise
the practices of [its] deputies.” He adequately states that the
Department was on actual or constructive notice that this
failure to supervise would likely result in a constitutional
violation: he asserts that Barnes “routinely declined to read
Miranda warnings” and that, because of the regular nature of
Barnes’s illegal activity, the Department “should have known
or knew that this unconstitutional conduct was occurring.”
Finally, he asserts that this policy was the cause of the
constitutional violation here; “[i]n the instant case,” he
alleges, “we are confronted with” the Department’s failure to
supervise its deputies. In reviewing the district court’s
judgment on the pleadings, we assume that the facts that
Jackson alleges are true, Cafasso v. Gen. Dynamics C4 Sys.,
Inc., 637 F.3d 1047, 1053 (9th Cir. 2011), that is, we assume
that Barnes in fact routinely declined to give Miranda
warnings, and that the Department in fact did not supervise
the practices of its deputies. With this assumption, Jackson
has pleaded a policy of inaction, and therefore the district
court erred in granting defendants judgment on the pleadings
on that basis. See Fleming v. Pickard, 581 F.3d 922, 925 (9th
Cir. 2009) (holding that judgment on the pleadings is properly
granted “when there is no issue of material fact in dispute,
and the moving party is entitled to judgment as a matter of
law”).

    Defendants contend that Jackson’s complaint consists of
a “bare recitation of the Monell elements,” and thus fails to
meet the pleading standard announced by the Supreme Court
in Ashcroft v. Iqbal, 556 U.S. 662 (2009). Under Iqbal, mere
legal conclusions “are not entitled to the assumption of truth.”
                      JACKSON V. BARNES                         15

Id. at 678–79. Rather, a plaintiff must plead enough facts to
“state a claim to relief that is plausible on its face.” Id. at 678
(quoting Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007)).
We have held, however, that “we continue to construe pro se
filings liberally when evaluating them under Iqbal,”
“particularly in civil rights cases.” Hebbe v. Pliler, 627 F.3d
338, 342 (9th Cir. 2010).

    Construing Jackson’s complaint liberally, Jackson has
met the Iqbal standard if only because he has made a critical
factual allegation that renders his complaint specific: that
Barnes has admitted that he routinely deprived suspects of
Miranda warnings as a “ploy” to elicit confessions. Thus,
Jackson’s contention that the Sheriff’s Department knew or
should have known about Barnes’s unconstitutional conduct,
is not merely possible, but plausible. Moreover, Jackson does
not state without more that the Department’s policies
generally caused the violation at issue here: he states
specifically that the violation is the result of the Department’s
“complete failure to supervise the practices of [its] deputies.”
These allegations are sufficiently particular to state a
plausible claim of a policy of inaction under Iqbal.

                                B.

    Defendants also argue that the Sheriff’s Department
cannot be sued under § 1983 because it is a state actor.
Although it is true that state actors are not subject to suit
under § 1983, see Will v. Mich. Dep’t of State Police,
491 U.S. 58, 71 (1989) (holding that “neither a State nor its
officials acting in their official capacities are ‘persons’ under
§ 1983” and therefore cannot be sued under that statute), we
have unequivocally held that when a California sheriff’s
department performs the function of conducting criminal
16                       JACKSON V. BARNES

investigations, it is a county actor subject to suit under
§ 1983. Brewster v. Shasta Cnty., 275 F.3d 803, 807–08 (9th
Cir. 2001) (holding that a sheriff is a county actor when
investigating crime); Bishop Paiute Tribe v. Cnty. of Inyo,
291 F.3d 549, 565–66 (9th Cir. 2002), vacated on other
grounds sub nom. Inyo Cnty. v. Paiute-Shoshone Indians of
the Bishop Cmty. of the Bishop Colony, 538 U.S. 701 (2003)
(holding that a sheriff is a county actor when executing a
search warrant); see also Cortez v. Cnty. of L.A., 294 F.3d
1186, 1189 (9th Cir. 2002) (holding that a sheriff is a county
actor when administering jails); Streit v. Cnty. of L.A.,
236 F.3d 552, 564–65 (9th Cir. 2001) (same).4

    Defendants contend that Brewster is no longer good law
in light of the California Supreme Court’s later holding in
Venegas v. Cnty. of L.A., 87 P.3d 1 (Cal. 2004), that sheriffs
are state actors when investigating crime, and therefore
cannot be sued under § 1983 for their investigatory acts.
Venegas does not control here, however. State case law aids
but does not dictate our determination of whether an official
(or, as here, an official entity) is a state or county actor for the
purpose of § 1983:

         Though we must look at the relevant state law
         and state courts’ characterizations of that law,
         the final determination [of whether an official
         or official entity is a state or county actor]
         under 42 U.S.C. § 1983 is a federal law


  4
    These cases all involved suits against sheriffs acting in their official
capacity rather than, as here, a suit against a sheriff’s department. The
two, however, are the same. See Kentucky v. Graham, 473 U.S. 159, 166
(1985) (“[A]n official-capacity suit is, in all respects other than name, to
be treated as a suit against the entity.”).
                     JACKSON V. BARNES                         17

        statutory interpretation question; no deference
        is due to the ultimate conclusion of the
        California court that the provisions, taken as
        a whole, indicate the [official or official entity
        is] a state actor under Section 1983 for any
        particular function.

Goldstein v. City of Long Beach, 715 F.3d 750, 760–61 (9th
Cir. 2013). In short, state case law is helpful to the extent that
it aids in our understanding of various state constitutional and
statutory provisions. Often, as here, some provisions suggest
that the actor in question may be a state official, while others
suggest that he may be a county official. Once these
provisions have been construed by state courts, we must
consider them as a whole, and determine under federal law
whether an official is a state or county official. State case law
does not control our decision; rather, the ultimate decision we
must make is one of federal law. See Brewster, 275 F.3d at
806 (holding that, after analyzing “the state constitution,
codes, and case law,” the ultimate question of liability under
§ 1983 “is a question of federal law”); Cortez, 294 F.3d at
1189 (“[W]hile the determination of § 1983 liability is
governed by federal law, we analyze state law to discern the
official’s actual function with respect to th[e] particular area
or issue [in question].”); Streit, 236 F.3d at 564 (“[E]ven if
the case were on all fours we would not be bound by [the
California court’s conclusion in Peters] regarding section
1983 liability because such questions implicate federal, not
state, law.”).

    Considered in this context, Venegas does not displace our
holding in Brewster that a California sheriff is a county
official when investigating criminal activity. In Venegas, the
California Supreme Court simply adopts the two previous
18                   JACKSON V. BARNES

California decisions of Pitts v. Cnty. of Kern, 17 Cal. 4th 340
(1998), and Cnty. of L.A. v. Superior Court, 68 Cal. App. 4th
1166 (1998) (Peters). Pitts concerned whether district
attorneys—not sheriffs—are state or county actors. 17 Cal.
4th at 362 (holding that district attorneys are state actors
when preparing to prosecute and prosecuting crime, or when
training staff and developing policy involving such matters).
Peters held that California sheriffs are state actors with
respect to their role in setting policies concerning the release
of persons from the county jail. 68 Cal. App. 4th at 1178. The
California Supreme Court concluded that the holding in
Peters should be extended to a sheriff’s actions in
investigating crimes. Venegas, 87 P.3d at 11. In Brewster,
however, we carefully analyzed Pitts and Peters, as well as
the relevant California constitutional and statutory provisions,
and held that a sheriff is a county official when investigating
crime. Brewster, 275 F.3d at 807–12.

    Ultimately, the Venegas court is clear that its
disagreement with Brewster is with Brewster’s conclusion
that the provisions that suggest that a California sheriff is a
county official outweigh the provisions that suggest that a
California sheriff is a state official. The Venegas court
reaches the opposite conclusion. 87 P.3d at 9 (noting that
Pitts and Peters found insufficient the same factors that we
found sufficient in Brewster to establish that a sheriff is a
county actor when investigating crime); see also id. at 10
(noting that Pitts and Peters found insufficient the same
factors that we found sufficient in Bishop to establish that a
sheriff is a county actor when obtaining and executing a
search warrant). As Justice Werdegar notes in her concurring
and dissenting opinion, the “disputed point” between
Brewster and Venegas “is the relevance and weight, under
federal law, to be given a particular aspect of state law
                         JACKSON V. BARNES                                19

defining the relationship of California sheriffs to the state and
county governments.” Id. at 27. We are under no obligation,
however, to “blindly accept [the California Supreme Court’s]
balancing of the different provisions of state law in
determining liability under § 1983.” Weiner v. San Diego
Cnty., 210 F.3d 1025, 1029 (9th Cir. 2000). Rather, the proper
balance of these various provisions is a question of federal
law. Goldstein, 715 F.3d at 760–61. Because Venegas
disagrees with Brewster on a matter of federal law, it does not
constitute “an intervening decision on controlling state law”
that would authorize, let alone require, us to overrule a prior
decision. Miller v. Gammie, 335 F.3d 889, 892–93 (9th Cir.
2003) (en banc). Thus, we follow our decision in Brewster: a
sheriff’s department is a county actor when it investigates
crime. Therefore, the Sheriff’s Department is subject to suit
under § 1983 for Jackson’s claim that it violated his Fifth
Amendment rights in the course of its investigative
activities.5


    5
      The overwhelming majority of district court decisions involving
California sheriff’s departments have continued to follow Brewster after
Venegas. In fact, it appears that only three out of approximately thirty
cases to have directly addressed this issue have followed Venegas. The
three were all unpublished decisions in the Northern District of California,
and a subsequent, published opinion in that district rejected their holdings.
See Mateos-Sandoval v. Cnty. of Sonoma, 942 F. Supp. 2d 890, 902 (N.D.
Cal. 2013). The views expressed in the Northern District’s published
opinion are uniformly joined by the courts of the Central, Eastern, and
Southern Districts of California. See Nelson v. Cnty. of Sacramento,
926 F. Supp. 2d 1159, 1168 (E.D. Cal. 2013) (“This District has had
numerous chances to retreat from [its position that Brewster, and not
Venegas, controls] and has steadfastly maintained its adherence to
Brewster, finding a sheriff is a local actor when investigating crime or
running a jail.”); Smith v. Cnty. of L.A., 535 F. Supp. 2d 1033, 1038 (C.D.
Cal. 2008) (“Because Venegas misapplied federal law, the Court declines
to follow its holding and finds instead that Plaintiffs’ claims are not barred
20                     JACKSON V. BARNES

                                  C.

    In conclusion, we hold that Jackson has properly pleaded
a claim of Monell liability against the Sheriff’s Department,
and that the Sheriff’s Department is subject to suit under
§ 1983 for its investigative activities. Therefore, we reverse
the district court’s dismissal of this claim.

                                 IV.

    Jackson’s final argument on appeal is that the district
court erred in granting defendants judgment on the pleadings
regarding his claim that Ventura County District Attorney
Murphy and the Ventura County District Attorney’s Office
engaged in various illegal acts in prosecuting him. The
district court rejected this claim on the grounds that Murphy
has absolute prosecutorial immunity in her individual
capacity and that the Ventura County District Attorney’s
Office has Eleventh Amendment immunity.

                                  A.

   The district court is correct that much of Jackson’s
complaint focuses on activity for which Murphy is immune,
and therefore that these claims must be dismissed.
Specifically, Jackson focuses his complaint on Murphy’s
prosecutorial activity: her statements at trial, her closing
argument, her use of DNA evidence, and her reliance on a


by the Eleventh Amendment. In so holding, the Court urges the California
Supreme Court to reconsider Venegas to conform with the federal
standard.”); see also Warner v. Cnty. of San Diego, 2011 WL 662993, at
*4 n.2 (S.D. Cal. 2011) (unpublished) (rejecting Venegas and following
Brewster).
                     JACKSON V. BARNES                         21

third-party’s perjured testimony. Murphy is shielded from
suit for such prosecutorial activity. Van de Kamp v.
Goldstein, 555 U.S. 335, 342–43 (2009) (holding that
absolute prosecutorial immunity applies to an individual’s
conduct relating to the initiation and conduct of a criminal
trial). Thus, the district court was correct to dismiss these
allegations.

    Jackson asserts that his complaint also states that Murphy
“systematically conspired” with Barnes in 1993, prior to
Jackson’s arrest on the murder charge, to unlawfully elicit a
confession from him. His complaint does not clearly state this
claim. Nevertheless, the district court erred in failing to give
Jackson an opportunity to amend his complaint, as it is not
“absolutely clear” that he could not cure its deficiencies by
amendment. See Robichaud v. Ronan, 351 F.2d 533, 537 (9th
Cir. 1965) (holding that prosecutors who, soon after arrest of
suspect, allegedly directed police to coerce confession from
suspect, were not entitled to absolute immunity because
interrogation is ordinarily a police activity); see also Lopez v.
Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc)
(holding that a pro se litigant must be given leave to amend
his complaint if it appears at all possible that the plaintiff can
correct the deficiencies in the complaint).

                               B.

    With respect to the Ventura County District Attorney’s
Office, Jackson alleges, in effect, that the District Attorney’s
Office is liable for Murphy’s unlawful prosecutorial conduct.
The District Attorney’s Office, however, acts as a state office
with regard to actions taken in its prosecutorial capacity, and
is not subject to suit under § 1983. Weiner, 210 F.3d at 1030.
Moreover, under the facts of this case, we cannot conceive of
22                   JACKSON V. BARNES

any amendment that would allow Jackson to proceed against
the District Attorney’s Office. Therefore, we affirm the
district court’s dismissal of this claim.

                              V.

    In conclusion, we reverse the district court’s rulings with
respect to all three of Jackson’s claims in whole or in part.
Regarding Jackson’s claim that Barnes violated his Fifth
Amendment rights by interrogating him without giving him
the requisite Miranda warnings, we hold that the claim is
neither Heck-barred nor time-barred and that Jackson may be
able to show that he is entitled to damages, if only nominal;
we therefore reverse the district court’s grant of summary
judgment to Barnes. As to Jackson’s claim that the Ventura
County Sheriff’s Department violated his Fifth Amendment
rights by failing to supervise Barnes, we reverse the district
court’s judgment on the pleadings for the Sheriff’s
Department because Jackson has sufficiently pleaded a
“policy of inaction” for which the Sheriff’s Department, as a
county actor, is subject to suit under § 1983. Finally, we
affirm the district court’s dismissal of Jackson’s claim against
the District Attorney’s Office, but instruct it to grant Jackson
leave to amend his complaint to state a claim against Murphy.

     REVERSED AND REMANDED.
