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ACORN Saboteur’s Friend Wins One in Court

LOS ANGELES (CN) - A federal judge rejected a woman's claim that a Los Angeles County prosecutor defamed her as she tried to pin the blame for the wiretapping of a congresswoman on conservative activist James O'Keefe.

Nadia Naffe sued Deputy District Attorney John Patrick Frey and Los Angeles County in late December, in an amended complaint in Federal Court.

The amended complaint came after she sued those defendants and District Attorney Steve Cooley, in October.

In her complaint, Naffe claimed that O'Keefe drugged her in October 2011 to try to sexually assault her in a New Jersey barn.

O'Keefe was not named as a defendant.

In February and March 2012, Frey published dozens of "threatening, harassing, and defamatory statements" on Twitter describing Naffe as "a liar, illiterate, callous, self-absorbed, despicable, a smear artist and absurd," according to the amended complaint.

Naffe claimed Frey also defamed her on his blog "Patterico's Pontifications," because he knew she was preparing to hand over evidence that O'Keefe had wiretapped the office of Congresswoman Maxine Waters, D-Los Angeles.

Frey wanted to keep this evidence out of the Los Angeles County District Attorney's office to protect O'Keefe, Naffe claims in the complaint.

Naffe claimed that Frey became friends with O'Keefe after Frey interned in the Los Angeles County District Attorney's Office as a law student.

Naffe admitted that she played a role in the wiretapping of Waters' office, according to the Federal Court's April 19 "Order Confirming Tentative Ruling."

In a minute order, U.S. District Judge George Wu confirmed dismissal of Naffe's complaint that Frey violated her constitutional rights by defaming her in his official capacity as a prosecutor.

Wu found that Naffe's claims were "largely conclusory," "speculative," and in the case of one of Frey's alleged tweets "demonstrably false."

"Importantly, Frey's practice of simply (relatively frequently) mentioning the fact that he is a deputy district attorney or prosecutor ... does not transform everything he says on his blog or on Twitter into state action," Wu wrote. "Quite simply, nothing plaintiff has alleged plausibly suggests that Frey acted, or purported or pretended to act, in the performance of his official duties." Naffe's efforts to show that Frey was "acting in his professional capacity when he engaged in his blog and/or Twitter-based discussions are equally fact-poor," Wu wrote."She claims that District Attorney Steve Cooley wanted Frey to blog because it would assist Cooley in his run for governor, but has no facts to support that speculation," the judge wrote.

"Plaintiff also asserts that she was preparing to turn over audio from the wiretapping of Congresswoman Waters's office to authorities in Los Angeles County," Wu wrote. "But she does not specify whether those authorities would have been state or federal and she ultimately turned them over, not to California-based state authorities, but to federal authorities in Washington D.C. (as one might expect with respect to wiretapping of the office of a member of Congress). ... In any event, Frey's conduct allegedly in association with those plans might have subjected him to discipline from his employer, but it does not turn those actions into actions under color of law."

Naffe's claim that Frey advised O'Keefe "for purposes of helping him defend against criminal prosecution is facially implausible," Wu ruled.

"District Attorneys' offices are not in the business of assisting criminal defendants or potential criminal defendants with their potential defenses to charges."

Naffe failed to show how she had been damaged by more than $75,000, Wu found, and therefore dismissed the remainder of Naffe's claims.

Naffe claimed that Frey had published 200 pages of a 2005 deposition transcript involving Naffe and a former employer on his blog, including Naffe's Social Security number, date of birth, maiden name, family address and medical information.

That let people fraudulently use her Social Security number, Naffe claimed.

Wu ruled, however, that Naffe cited "no examples of any actual damages," and called Naffe's claims for credit and employment-related damages "highly speculative."

"While it appears as if plaintiff believes she has already suffered compensable harm

in terms of the effects Frey's alleged conduct has had on her health and in costs associated with threats she has allegedly received from Frey's alleged followers, she has not given the court any details or a sense of the specifics of her harm," Wu wrote.

O'Keefe became famous in 2009 after releasing undercover videos he shot in several offices of the nonprofit ACORN, the Association of Community Organizations for Reform Now.

Media reported that O'Keefe posed as a pimp, in "stereotypical 1970s pimp garb" in the opening and closing scenes of his videos.

But he wore a shirt and tie in the actual encounters, identifying himself as the concerned boyfriend of a purported prostitute, according to the California Attorney General's Office.

The videos prompted outrage after being broadcast on Fox News and Lawmakers voted to freeze funding to ACORN, which was known for voter drives and organizing in poor communities. The nonprofit shut down after filing for Chapter 7 liquidation in late 2010.

Copies of Wu's tentative ruling and minute order were emailed to Courthouse News by Frey's attorney Kenneth White, with Brown White & Newhouse.

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