Niveen Ismail v. County of Orange , 676 F. App'x 690 ( 2017 )

FILED
NOT FOR PUBLICATION
JAN 25 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NIVEEN ISMAIL, No. 13-56866
Plaintiff-Appellant, D.C. No.
8:11-cv-01751-CAS-AJW
v.
COUNTY OF ORANGE; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Christina A. Snyder, District Judge, Presiding
Submitted December 30, 2016**
San Francisco, California
Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit Judges.
Plaintiff Niveen Ismail appeals pro se the district court’s dismissal of her
42 U.S.C. § 1983 action for claims arising under the Fourth, Eighth, and
Fourteenth Amendments. We review de novo both a district court’s order granting
*
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).
a motion to dismiss, Lacey v. Maricopa Cty., 693 F.3d 896, 911 (9th Cir. 2012) (en
banc), and a district court’s entry of summary judgment, Chale v. Allstate Life Ins.
Co., 353 F.3d 742, 745 (9th Cir. 2003). A district court’s order granting a motion
to reconsider is reviewed for abuse of discretion, Sch. Dist. No. 1J, Multnomah
Cty. v. ACandS, Inc., 5 F.3d 1255, 1262 (9th Cir. 1993), as is an award of costs,
Martin v. Cal. Dep’t of Veterans Affairs, 560 F.3d 1042, 1047 (9th Cir. 2009). We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
I
The district court properly dismissed Ismail’s claims against the deputy
district attorney in her individual capacity. Absolute immunity protects a deputy
district attorney from suit under 42 U.S.C. § 1983 where claims are related to
conduct “intimately associated with the judicial phase of the criminal process.”
Van de Kamp v. Goldstein, 555 U.S. 335, 343 (2009) (quoting Imbler v. Pachtman,
424 U.S. 409, 430 (1976)). Here, the district court correctly determined that all of
the deputy district attorney’s actions—requesting a defendant be remanded into
custody, adding or dropping charges, requesting high bail—are prosecutorial
decisions intimately associated with the judicial phase of the criminal process.
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II
The district court also properly dismissed Ismail’s claims of improper
training. Although “a local government’s decision not to train certain employees
about their legal duty to avoid violating citizens’ rights” may in some cases be
subject to § 1983 liability, Connick v. Thompson, 563 U.S. 51, 61 (2011), Ismail
offered no evidence that would make such a notion plausible with respect to
defendants in this case, see Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“To
survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.”) (internal
quotation marks and citation omitted).
III
The district court properly granted summary judgment as to Ismail’s claims
against the arresting officers.
1. First, the district court properly granted summary judgment with respect
to Ismail’s felony arrest claims because the arresting officers had arguable
probable cause to believe that Ismail had attempted to solicit kidnapping. See Cal.
Penal Code § 653f (West 2016); Cal. Penal Code § 664 (West 2011); People v.
Herman, 119 Cal. Rptr. 2d 199, 208 (Cal. Ct. App. 2002) (“[C]riminal solicitation
is an attempt to induce another to commit a criminal offense.” (emphasis omitted)).
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Arguable probable cause to support an arrest is all that is necessary to protect an
officer from liability under § 1983. Rosenbaum v. Washoe Cty., 663 F.3d 1071,
1076 (9th Cir. 2011) (explaining that the question is “whether reasonable officers
could disagree as to the legality of the arrest such that the arresting officer is
entitled to qualified immunity”).
2. The district court also properly dismissed the excessive bail claims. The
presiding judge, and not a law enforcement official, was responsible for the
increase in Ismail’s bail. See Galen v. Cty. of L.A., 477 F.3d 652, 663 (9th Cir.
2007) (“[A] judicial officer’s exercise of independent judgment in the course of his
official duties is a superseding cause that breaks the chain of causation linking law
enforcement personnel to the officer’s decision.”). Nor is there evidence to suggest
that any police officer “deliberately or recklessly misled” the judge who revoked
Ismail’s bail. See id. at 664. Thus, the district court correctly granted summary
judgment on Ismail’s excessive bail claim.
3. Finally, the district court properly entered judgment against Ismail on her
warrantless arrest claim. She asserts that she was subject to a warrantless arrest,
but she was not. Rather, Ismail was remanded into custody following a hearing on
October 25, 2010, because she had violated a protective order related to the
underlying felony. On October 29, 2010, a warrant was issued based on the same
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conduct. There was no change in her physical custodial status, but she was
administratively “arrested” on November 3, 2010, pursuant to the October 29 arrest
warrant. The district court disentangled these events and correctly granted
summary judgment to defendants. See Rigney v. Hendrick, 355 F.2d 710, 713 (3d
Cir. 1965) (“Here, it would be anomalous to require an arrest, for the appellants are
already in custody.”).
IV
Granting defendants’ motion to reconsider was not an abuse of discretion.
See Fed. R. Civ. P. 60(b); Feature Realty, Inc. v. City of Spokane, 331 F.3d 1082,
1093 (9th Cir. 2003) (explaining how to determine whether newly discovered
evidence warrants relief from a judgment or order). Because it was not
unreasonable for defendants to rely on documents Ismail produced related to her
second arrest and because the district court had relied on the absence of an arrest
warrant in denying summary judgment to defendants initially, granting the motion
to reconsider was within the court’s discretion.
V
The district court did not abuse its discretion in awarding costs. Federal
Rule of Civil Procedure 54(d)(1) “creates a presumption in favor of awarding costs
to a prevailing party.” Martin, 560 F.3d at 1053 (9th Cir. 2009) (quoting Ass’n of
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Mexican-Am. Educators v. California, 231 F.3d 572, 591 (9th Cir. 2000) (en
banc)); see Fed. R. Civ. P. 54(d)(1). Ismail’s suit did not present close or difficult
issues, and she does not argue that she has limited financial resources. See Draper
v. Rosario, 836 F.3d 1072, 1087 (9th Cir. 2016). Thus the district court did not
abuse its discretion in awarding costs to defendants, as the federal rules
recommend.1
AFFIRMED.
1
All remaining motions in this case are denied as moot.
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