ROBERT TAKASUGI, Senior District Judge
This matter has come before the court on the motion by defendant Deputy District Attorney Rosabella Reyes ("Reyes") to dismiss the first amended complaint ("FAC") pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. By this motion, defendant Reyes contends (1) all claims against defendant Reyes in her official capacity must be dismissed because in her official capacity, defendant Reyes acts on behalf of the State of California; (2) the first amended complaint fails to state a claim for equitable relief; and (3) counts five and six do not state cognizable claims under Racketeer Influenced and Corrupt Organizations Act ("RICO").
OFFICIAL CAPACITY CLAIMS
This court previously ruled that plaintiff's damage claims against defendant Reyes in her official capacity, based on alleged acts committed in her prosecutorial capacity, are barred by the Eleventh Amendment to the Constitution. The FAC reasserts claims against defendant Reyes in her official capacity, based on her conduct as a prosecutor. California district attorneys are state officers when acting in their prosecutorial capacity.Weiner v. San Diego County, 210 F.3d 1025, 1028-31 (9th Cir. 2000). As such, claims against defendant Reyes, sued in her official capacity, are barred by the Eleventh Amendment immunity.
That a district attorney acts as a state officer when deciding whether to prosecute an individual does not mean that district attorneys are state officers for all purposes. Weiner, 210 F.3d at 1031. As such, it is possible that plaintiff could amend the complaint to state a claim against defendant Reyes based on acts committed as a county officer. However, in his response to this motion, plaintiff does not express any opposition to the dismissal of the official capacity claims, nor does he seek leave to amend to state such a claim. Accordingly, dismissal should be without leave to amend. If plaintiff determines that he can state such a claim, he is free to file a motion for leave to amend.
CLAIMS FOR EQUITABLE RELIEF
This court previously ruled that plaintiff's claims for equitable relief failed to sufficiently allege a credible threat or demonstrated probability that he will suffer future injuries at the hands of defendant, which is a necessary prerequisite for equitable relief. The FAC no longer contains a count for injunctive relief. However, it continues to request equitable relief in paragraph one and in the prayer for relief. Plaintiff's response to the instant motion expresses no position on this issue. As such, plaintiff's claims for equitable relief should be dismissed without leave to amend. As is discussed above, plaintiff is not precluded from moving for leave to amend if he believes he has a basis therefor.
RICO
To have standing to pursue a RICO claim, plaintiff must have suffered an injury to "business or property" caused by the conduct constituting the violation, 18 U.S.C. § 1964(c). Personal injuries are not compensate under RICO Oscar v. University Students Co-operative Association, 965 F.2d 783, 785 (9th Cir. 1992); Berg v. First State Insurance Company, 915 F.2d 460, 464 (9th Cir. 1990).
In the FAC1 plaintiff alleges that he suffered a business and/or property injury by reason of lost employment, loss of employment opportunities, and wages and other compensation associated with the loss of employment and other opportunities. He further alleges that he suffered a business and/or property injury because defendant police officers took plaintiff's property and money. Of course, the alleged taking of plaintiff's property and money constitutes "injury to business or property." The issue here is whether the employment loss constitutes injury to business, The conflict is whether employment loss should be construed as a personal injury as it is under 42 U.S.C. § 1983 or as an injury to business as it is under the Clayton Anti-Trust Act.
In this court's previous rulings, it was held that employment losses are personal injuries and not injury to business, The court adopted the reasoning of Section 1983 cases in their conclusion that injuries sustained as a result of unconstitutional searches, false arrest and false imprisonment are personal injuries and, thus, recoverable under Section 1983. However, upon revisiting this issue, this court has now determined that "injury to business or property" should be construed, instead, by looking to judicial interpretations of the identical language contained in the Clayton Anti-Trust Act. See Fulton v. Plumbers and Steamfitters, 695 F.2d 402, 408 n. 9 (9th Cir. 1982). When two statutes are phrased in identical words, it is proper for the court to look to judicial interpretations of one for guidance in construing the other. Here, not only does RICO share this identical phrase with the Clayton Anti-Trust Act, but "there is a clear legislative record of congressional reliance on the Clayton Act when RICO was under consideration. . . . Both statutes share a common congressional objective of encouraging civil litigation to supplement Government efforts to deter and penalize the respectively prohibited practices." Rotella v. Wood, 528 U.S. 549, 557 (2000).
Accordingly, this court concludes that a claim for employment loss could constitute an injury to business and, therefore, plaintiff has standing under RICO to pursue his claim for employment loss.
Accordingly,
IT IS ORDERED that the motion by defendant Deputy District Attorney Rosabella Reyes to dismiss the first amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure is granted, without leave to amend, as to all counts against defendant Reyes in her official capacity, and as to all claims for equitable relief. The motion to dismiss is denied as to counts five and six alleging violations of the RICO Act.