Thurston Myers v. Thomas Brooks ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 22 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
THURSTON MYERS, No. 19-35869
Plaintiff-Appellant, D.C. No. 2:18-cv-01043-RAJ
v.
MEMORANDUM*
THOMAS J. BROOKS, Sergeant; et al.,
Defendants-Appellees,
and
JANE DOES, Brooks, Mason, Williams,
Jensen,1-34; et al.,
Defendants.
Appeal from the United States District Court
for the Western District of Washington
Richard A. Jones, District Judge, Presiding
Submitted April 20, 2021**
Before: THOMAS, Chief Judge, TASHIMA and SILVERMAN, 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).
Thurston Myers appeals pro se from the district court’s summary judgment
in his 42 U.S.C. § 1983 action alleging constitutional violations arising from a
search of his residence, seizure of property, and his arrest. We have jurisdiction
under 28 U.S.C. § 1291. We review de novo. Long v. City & County of Honolulu,
511 F.3d 901, 905 (9th Cir. 2007). We affirm.
The district court properly granted summary judgment for defendants
Brooks and Mason on Myers’s unlawful search, seizure, and false arrest claims
because Myers failed to raise a genuine dispute of material fact as to whether the
search of his property or his arrest lacked probable cause. See Cameron v. Craig
713 F.3d 1012, 1018 (9th Cir. 2013) (probable cause standard for search); Beier v.
City of Lewiston, 354 F.3d 1058, 1064 (9th Cir. 2004) (probable cause standard for
arrest); see also Yousefian v. City of Glendale, 779 F.3d 1010, 1014 (9th Cir. 2015)
(the absence of probable cause is an essential element of a § 1983 false arrest
claim).
The district court properly granted summary judgment on Myers’s municipal
liability claim under Monell v. Department of Social Services, 436 U.S. 658(1978), because Myers failed to raise a triable dispute as to whether any policy or
custom of the City of Lynwood caused him to suffer constitutional injuries. See
Monell, 436 U.S. at 690 n.55, 694-95 (municipal liability under § 1983 requires
execution of policy or custom that inflicts plaintiff’s constitutional injury).
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To the extent Myers alleged a due process claim, the district court properly
granted summary judgment because Myers failed to raise a triable dispute as to
whether he lacked notice of the seizure of his property or an opportunity to be
heard prior to forfeiture. See Wash. Rev. Code § 69.50.505(3), (5) (setting forth
procedures for notice of seizure and intended forfeiture of seized property and
reasonable opportunity to be heard upon written notice of a claim of ownership or
right to possession); SEC v. McCarthy, 322 F.3d 650, 659 (9th Cir. 2003) (due
process requires notice and an opportunity to be heard).
The district court did not abuse its discretion by striking the testimony of
Myers’s expert witness because Myers failed to comply with the requirements of
Federal Rule of Civil Procedure 26(a). See Fed. R. Civ. P. 26(a)(2) (requirements
for disclosure of expert testimony), 37(c)(1) (a party’s failure to provide
information or identify a witness as required by Rule 26(a), unless substantially
justified or harmless, prohibits that party’s use of the information or witness to
supply evidence; United States v. Morales, 108 F.3d 1031, 1035 (9th Cir. 1997)
(en banc) (setting forth standard of review).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
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