Brett Johnson v. San Benito County , 640 F. App'x 649 ( 2016 )

FILED
NOT FOR PUBLICATION
FEB 17 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRETT JOHNSON, No. 13-17617
Plaintiff - Appellant, D.C. No. 5:12-cv-03691-LHK
v.
MEMORANDUM*
SAN BENITO COUNTY; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Northern District of California
Lucy H. Koh, District Judge, Presiding
Submitted February 10, 2016**
San Francisco, California
Before: SILVERMAN, FISHER, and TALLMAN, Circuit Judges.
Brett Johnson appeals the district court’s grant of summary judgment in
favor of San Benito County and two San Benito County Sheriff’s Department
Officers, Undersheriff Patrick Turturici and Sergeant Tony Lamonica (collectively,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
-2-
“Officer Defendants”), on all of Johnson’s causes of action brought pursuant to 42
U.S.C. § 1983. We have jurisdiction over the appeal under 28 U.S.C. § 1291.
Reviewing the district court’s grant of summary judgment and its qualified
immunity determinations de novo, Furnace v. Sullivan, 705 F.3d 1021, 1026 (9th
Cir. 2013), we affirm.
The district court granted summary judgment for the Officer Defendants
under the first of the two prongs of the qualified immunity analysis, concluding
that the facts, taken in the light most favorable to Johnson, do not show that the
Officer Defendants’ conduct violated any of Johnson’s constitutional rights. See
Sandoval v. Las Vegas Metro. Police Dep’t, 756 F.3d 1154, 1160 (9th Cir. 2014)
(quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)).
Johnson argues that the district court erred in concluding that probable cause
existed to support Lamonica’s determination that the child abuse allegations were
“substantiated.” He contends the district court failed to draw all reasonable
inferences in his favor when it concluded that a reasonable officer could have
determined there was a substantiated claim of child abuse based on the undisputed
facts. In particular, he argues that his privilege to discipline his son precludes
summary judgement because it raises a dispute of material fact.
-3-
Johnson’s argument incorrectly conflates the summary judgment and
qualified immunity standards. The question before the district court was not
whether there was a dispute of fact as to whether the privilege may have applied,
but merely whether a reasonable officer could have found probable cause to
believe Johnson had committed child abuse. Even assuming without deciding that
Johnson is correct in arguing the absence of disciplinary intent is an element of
Cal. Penal Code § 273d, the district court did not err in concluding Lamonica had
probable cause to find the allegations substantiated. Here, the undisputed facts
show that Johnson and his son engaged in a physical altercation and that his son
was injured as a result. These facts are sufficient to support a finding of probable
cause, which requires “[n]either certainty, nor proof beyond a reasonable doubt,”
but only “reasonably trustworthy information sufficient to warrant a prudent
person in believing that the accused had committed or was committing an offense.”
United States v. Harvey, 3 F.3d 1294, 1296 (9th Cir. 1993) (quoting United States
v. Del Vizo, 918 F.2d 821, 825 (9th Cir. 1990)).
The district attorney’s independent decision to prosecute poses an additional
impediment to Johnson’s claims. Johnson points to no evidence that calls into
question the veracity of the district attorney’s testimony that she received and
reviewed both the initial incident report prepared by the responding deputy, Marc
-4-
Williams, and Lamonica’s supplemental incident report. Williams’s report
documents the statement he obtained from Johnson, including Johnson’s
description of his son as defiant and Johnson’s explanation of his conduct as an
effort to discipline his son. Johnson identifies no factual dispute that undermines
the district attorney’s testimony that her charging decision was made without
reference to any of the allegedly tampered evidence. The district court therefore
did not err in concluding that Johnson identified no conduct by the Officer
Defendants that deprived Johnson of his Fourth Amendment rights. Cf. Beck v.
City of Upland, 527 F.3d 853, 864 (9th Cir. 2008) (explaining that “the plaintiff
must prove the absence of probable cause to rebut the presumption of independent
prosecutorial judgment, when a prosecutor’s actions are interposed between the
actions of investigating officials and the arrest”).
Johnson also challenges several aspects of the district court’s grant of
summary judgment in favor of the Officer Defendants on his Fourteenth
Amendment claims that allege substantive due process violations, including his
claims that the Officer Defendants violated his rights by causing his inclusion on
California’s Child Abuse Central Index (CACI) or his employer’s Brady list. To
establish a substantive due process claim, a plaintiff must show both a government
deprivation of life, liberty, or property, and conscience-shocking conduct by the
-5-
government. Brittain v. Hansen, 451 F.3d 982, 991 (9th Cir. 2006). The
undisputed facts show nothing more than that, in response to a call from Johnson’s
ex-wife, Turturici asked Lamonica to review the case. Lamonica reviewed
Williams’s initial written reports, conducted additional interviews to confirm the
accuracy of the witnesses’ reporting, and reported his own findings. As discussed
above, Lamonica’s subsequent decision to indicate that the abuse allegations were
“substantiated” was supported by probable cause. In short, because the Officer
Defendants acted reasonably, the district court did not err in concluding that
Johnson’s contentions are insufficient to create a genuine issue of material fact as
to whether there was a substantive due process violation. See id. at 998 (“[A]s
long as [an officer]’s actions were objectively reasonable, his subjective intent is
irrelevant.”).
Johnson also challenges the district court’s grant of summary judgment in
favor of the Officer Defendants on his Fourteenth Amendment tampered-evidence
claim, arguing that the district court failed to recognize that he came forward with
evidence, albeit disputed, that Lamonica altered the audio tape of Williams’s initial
interview of Johnson, and did so with a purpose to harm. Even assuming the
alleged evidence tampering occurred, there is no evidence suggesting that the
district attorney listened to the audio recording at any point before filing the
-6-
criminal complaint charging Johnson. The district court therefore correctly
concluded that the Officer Defendants are entitled to summary judgment because
the record is devoid of evidence of a causal nexus between the alleged tampering
and any tangible harms purportedly suffered by Johnson. Cf. McSherry v. City of
Long Beach, 584 F.3d 1129, 1136–47 (9th Cir. 2009).
Johnson further contends that the district court erred in granting summary
judgment for the Officer Defendants on his First Amendment claim that their
conduct inhibited his future ability to petition the family court for modifications to
the family’s custody arrangements. However, there is no evidence that the Officer
Defendants undertook the challenged conduct for the purpose of chilling Johnson’s
First Amendment rights. Ford v. City of Yakima, 706 F.3d 1188, 1193 (9th Cir.
2013). Nor is there any evidence that Johnson’s access to the court was impaired
in any way.
Finally, the district court properly concluded that no Monell liability can lie
absent a finding of a constitutional violation by the Officer Defendants. See
Quintanilla v. City of Downey, 84 F.3d 353, 355 (9th Cir. 1996).
AFFIRMED.