Quanah Spencer v. City of Spokane ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 27 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
QUANAH M. SPENCER, No. 19-36054
Plaintiff-Appellant, D.C. No. 2:19-cv-00100-RMP
v.
MEMORANDUM*
CITY OF SPOKANE, a municipal
corporation in and for the State of
Washington; GREGORY PAUL
LEBSOCK, in his individual and official
capacities; SPOKANE COUNTY, a
municipal corporation and political
subdivision of the State of Washington;
CASEY A. EVANS, in his individual and
official capacities,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
Rosanna Malouf Peterson, District Judge, Presiding
Argued and Submitted November 19, 2020
Seattle, Washington
Before: GOULD and FRIEDLAND, Circuit Judges, and OTAKE,** District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Jill Otake, United States District Judge for the District
of Hawaii, sitting by designation.
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Plaintiff Quanah Spencer appeals the district court’s order granting summary
judgment to Defendants Spokane Police Department Detective Gregory Paul
Lebsock and the City of Spokane (“the City”) and judgment on the pleadings to
Defendants Deputy Prosecuting Attorney Casey Evans and the County of Spokane
(“the County”). We affirm.
In 2017, Spencer faxed to his employer a forged court order that purportedly
reversed a previous order to garnish Spencer’s wages to satisfy an attorney’s fees
judgment against him. After weeks of investigating the transmittal of the forged
document, Lebsock summarized his findings in an affidavit that requested a
warrant for Spencer’s arrest. Evans presented the warrant application to the
magistrate judge, which included both Lebsock’s affidavit and his own certificate
of good cause. Spencer was arrested and charged with forgery, but the charge was
dismissed about a month later. Lebsock’s continued investigation revealed that
Spencer’s attorney had instead manufactured the order; the attorney was
prosecuted and eventually pleaded guilty.
Spencer sued Lebsock and Evans under 42 U.S.C. § 1983 and various state
laws. He raised a Fourth Amendment claim that his arrest was without probable
cause and a Fourteenth Amendment claim that Lebsock and Evans selectively
enforced and prosecuted the law against him because of his Native American race.
Spencer also sued the City and County—Lebsock and Evans’s respective
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employers—alleging that either a municipal policy or a failure to train caused these
constitutional violations. Finally, Spencer brought a series of state law tort claims
based on the same alleged conduct.1
1. Parsing out Spencer’s arguments against the validity of his arrest reveals
two interrelated Fourth Amendment claims: a facial challenge to probable cause
and a claim of judicial deception.
Spencer argues that he was arrested without probable cause as to his intent to
defraud, an essential element of the crime with which he was charged. Wash. Rev.
Code § 9A.60.020. Spencer is correct that “when specific intent is a required
element of the offense, the arresting officer must have probable cause for that
element.” Gasho v. United States, 39 F.3d 1420, 1428 (9th Cir. 1994). But such
intent can be inferred from circumstantial evidence, including financial motive.
See, e.g., Cameron v. Craig, 713 F.3d 1012, 1019-20 (9th Cir. 2013); Zucco
Partners, LLC v. Digimarc Corp., 552 F.3d 981, 991 (9th Cir. 2009) (observing
1
Spencer also argues that the district court erred in not applying the
summary judgment standard to the Rule 12(b) and 12(c) motion to dismiss filed by
Evans and the County. This argument is unavailing; because his own Complaint
referenced the documents attached to their dispositive motion, the district court
could consider those documents without converting the motion into a summary
judgment motion. Branch v. Tunnell, 14 F.3d 449, 453-54 (9th Cir. 1994),
overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119(9th Cir. 2002). Spencer’s procedural challenge based on timeliness also fails,
because Evans and the County’s motion was styled under Rule 12(c) as well as
under Rule 12(b). See Morgan v. County of Yolo, 436 F. Supp. 2d 1152, 1155
(E.D. Cal. 2006).
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that “facts showing . . . a motive to commit fraud and opportunity to do so may
provide some reasonable inference of intent”). Spencer’s clear motive for
transmitting the forged order—relieving himself of wage garnishment—supplied
the requisite probable cause as to intent.
Spencer further alleges that false statements and misleading omissions in
Lebsock’s affidavit and Evans’s certificate deceived the magistrate judge into
believing there was probable cause for his arrest. To maintain such a “claim for
judicial deception, a plaintiff must show that the officer who applied for the arrest
warrant deliberately or recklessly made false statements or omissions that were
material to the finding of probable cause.” Smith v. Almada, 640 F.3d 931, 937
(9th Cir. 2011) (quotation marks and citation omitted). If probable cause remains
after the affidavit is corrected by removing allegedly false statements and adding
allegedly omitted information, “no constitutional error has occurred.” Bravo v.
City of Santa Maria, 665 F.3d 1076, 1084 (9th Cir. 2011).
Even considering Lebsock’s affidavit with the corrections Spencer contends
are needed, three undisputed facts remain: (1) Spencer’s wages were garnished in a
court action; (2) he possessed a forged order purporting to enjoin that garnishment;
and (3) he faxed that order to his employer using a payment method belonging to
him. These facts, with the financial motive they imply, establish probable cause
independent of any alleged misstatements or omissions by Lebsock. And Evans’s
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certificate could not have contributed to any judicial deception because it did not
purport to establish probable cause; its facts were drawn entirely from Lebsock’s
affidavit. Thus, Spencer’s Fourth Amendment claims against Lebsock and Evans
fail.
2. Spencer’s selective enforcement and selective prosecution claims2
identify his lawyer, who is not Native American, as the similarly situated
individual who was not prosecuted. But it was Spencer who faxed the forged order
that led to Lebsock’s investigation, and it was Spencer who stood to financially
benefit from that act. Because Spencer’s proposed control group is not “similarly
situated in all respects . . . except for the attribute on which the selective
enforcement claim rests,” these claims fail at the first step. Am.-Arab Anti-
Discrimination Comm. v. Reno, 70 F.3d 1045, 1063 (9th Cir. 1995).
3. Spencer’s municipal liability claims against the City and County have no
foundation, as neither Lebsock nor Evans violated his constitutional rights. See
City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (per curiam).
4. Under Washington law, Evans enjoys absolute immunity for acts
performed in his official capacity, an immunity that is extended to the County.
2
Spencer raises three other Fourteenth Amendment claims: due process,
denial of protective services, and malicious prosecution. Because Spencer did not
preserve these claims in the district court, we do not consider them here. Tibble v.
Edison Int’l, 843 F.3d 1187, 1193 (9th Cir. 2016) (en banc).
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Creelman v. Svenning, 410 P.2d 606, 607-08 (Wash. 1966). Thus, Spencer’s state
law claims are cognizable against Lebsock only. Because there was probable
cause to arrest Spencer—and, indeed, to continue prosecuting him until the charge
was dismissed—his state law false arrest, false imprisonment, and malicious
prosecution claims all fail. Hanson v. City of Snohomish, 852 P.2d 295, 297, 301
(Wash. 1993). His abuse of process claim requires “an act in the use of legal
process not proper in the regular prosecution of the proceedings,” which is not
present here. State v. Hyder, 244 P.3d 454, 462-63 (Wash. Ct. App. 2011).
Spencer’s remaining state law claims are forfeited on appeal because he did not
make arguments or cite authority in support of those claims. See United States v.
Cazares, 788 F.3d 956, 983 (9th Cir. 2015); Acosta-Huerta v. Estelle, 7 F.3d 139,
144 (9th Cir. 1992).
5. Finally, the district court did not abuse its discretion in denying Spencer’s
motion to continue under Federal Rule of Civil Procedure 56(d) because none of
the further discovery he sought would have precluded summary judgment for
Lebsock or the City. See SEC v. Stein, 906 F.3d 823, 833 (9th Cir. 2018).
AFFIRMED.
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