Raymond Newberry v. County of San Bernardino ( 2018 )

NOT FOR PUBLICATION FILED
SEP 18 2018
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAYMOND NEWBERRY; PATRICIA No. 16-55466
MENDOZA; MARIA ABOYTIA; JUANA
PULIDO; JESUS PULIDO; JONATHAN D.C. No.
PULIDO; RICHARD GONZALEZ 5:14-cv-02298-JGB-SP
LOZADA; MELINDA MCNEAL;
BERTHA LOZADA; MILDRED
LYTWYNEC; NICHOLAS LYTWYNEC; MEMORANDUM*
GLORIA BASUA; LIZBETH
BANUELOS; CARLOS OCHOA, and
Others Similarly Situated,
Plaintiffs-Appellants,
v.
COUNTY OF SAN BERNARDINO, in its
individual capacity and its official capacity;
TRACY MORENO, in his/her Individual
Capacity and Official Capacity; WILLIAM
BROWN, in his Individual Capacity and
Official Capacity; JENNY ROSE PACINI,
in her Individual Capacity and Official
Capacity,
Defendants-Appellees.
Appeal from the United States District Court
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
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for the Central District of California
Jesus G. Bernal, District Judge, Presiding
Argued and Submitted December 5, 2017
Pasadena, California
Before: TASHIMA and BERZON, Circuit Judges, and KENNELLY,** District
Judge.
The plaintiffs-appellants in this case are a subset of residents at a
San Bernardino apartment complex who maintain that their homes were unlawfully
searched for municipal code violations by officers of the County of San Bernardino
(“the County”). The plaintiffs contend that the code enforcement action at their
homes was a pretext for a criminal search for which the County lacked probable
cause. The plaintiffs contend also that, even if an administrative search for code
violations was appropriate, the administrative search warrant executed at their
homes authorized a greater intrusion than justified under the circumstances. In
particular, the plaintiffs object to the warrant being issued and executed without
advance notice, and they object to the warrant authorizing entry into residents’
homes by force and without the residents’ presence.
In their operative complaint, the plaintiffs brought class-action claims for
violation of their Fourth Amendment rights. See 42 U.S.C. § 1983. The district
**
The Honorable Matthew F. Kennelly, United States District Judge for the Northern
District of Illinois, sitting by designation.
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court granted summary judgment for the defendants, reasoning that the County
officers reasonably relied on a facially valid warrant. The plaintiffs appeal the
grant of summary judgment to the defendants, the denial of class certification, and
the denial of terminating sanctions for an alleged discovery violation.
We review the grant of summary judgment de novo. Weiner v. San Diego
County, 210 F.3d 1025, 1028 (9th Cir. 2000). We affirm, albeit on somewhat
different reasoning than the district court.
1. The uncontested record reflects that the Edgehill search was initiated,
coordinated, and for the most part conducted by officers of the City of San
Bernardino, not officers of the County. Three County officers participated in the
Edgehill search. Of those, only one had any interaction at all with a named
plaintiff: According to plaintiff Juana Pulido, she and other members of her
household encountered County Probation Officer William Brown while waiting
outside their apartment. Brown requested identification, and Pulido and the other
members of her household provided it. On the evidence in the record, the
interaction went no further. Pulido does not allege that Brown had any direct
relationship to the search of her home. Nor, for that matter, does she offer any hint
that the encounter with Brown was not voluntary, or that those speaking to Brown
did not feel free to leave or to refuse to respond to his inquiry. Accordingly, on the
record available to the district court on summary judgment, no evidence existed
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that any County officer, including Brown, unlawfully searched or seized a plaintiff
in this case.
2. The plaintiffs argue that County officers were integral participants in
the searches conducted by their City partners, such that they may be deemed liable
for searches of the named plaintiffs’ homes. “Integral participant” liability does
not require a showing that an officer’s actions played a direct role in the
occurrence of a constitutional violation. See Boyd v. Benton County, 374 F.3d 773,
780 (9th Cir. 2004) (citing Melear v. Spears, 862 F.2d 1177, 1186 (5th Cir.
1989)). It is necessary only that the officer be knowingly and actively involved —
for example, “privy to any discussions, briefings, or collective decisions” and party
to “a collective decisionmaking process.” Sjurset v. Button, 810 F.3d 609, 619 (9th
Cir. 2015); see also Boyd, 374 F.3d at 780.
Here, however, the record reflects that the defendants were participants only
in the searches for which County officers were physically present. The County and
its officers played no role in planning the Edgehill search generally. They played
no role in securing the warrant. And except as passive observers, they played no
role in the operational briefing held on the morning the warrant was executed.
County officers were assigned their roles in the Edgehill search. At most, then, the
only conduct that can be imputed to the defendants under Boyd is the conduct of
their team members during the search — those with whom the County officers
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collaborated in deciding whether or how to search individual apartments. That
conduct that does not extend the defendants’ liability to additional apartments or to
additional plaintiffs.1
3. The foregoing reasoning also disposes of the plaintiffs’ Monell claims
against the County. A constitutional violation is a prerequisite to a Monell
claim. City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986). As no County
officer violated the Fourth Amendment rights of a named plaintiff, no named
plaintiff has a Monell claim against the County.2
Because we affirm the grant of summary judgment to the defendants on the
merits, we do not address the district court’s order denying class certification. See
Stockwell v. City & County of San Francisco, 749 F.3d 1107, 1113 (9th Cir. 2014).
1
In their opening brief, the plaintiffs allude in passing to the possibility of
conspiracy liability under section 1983. But the plaintiffs make no specific
argument against the district court’s grant of summary judgment to the defendants
on that theory of liability. The issue is therefore forfeited. See Balser v. Dep’t of
Justice, 327 F.3d 903, 911 (9th Cir. 2003).
2
Our reasoning is limited to the mismatch between the named plaintiffs and
the named defendants in this case. We do not adopt the district court’s conclusion
that the County officers reasonably relied on a facially valid warrant. In addition,
we note that reasonable reliance on a warrant is an affirmative defense to Fourth
Amendment liability premised on the objective reasonableness of officers’
conduct; it does not, as the district court appeared to suggest, foreclose the
possibility of a Fourth Amendment violation, which is premised on the
reasonableness, in Fourth Amendment terms, of the search to which a person was
subject. See Palmerin v. City of Riverside, 794 F.2d 1409, 1415 (9th Cir. 1986)
(observing that an officer’s good faith serves as a defense to that officer’s liability,
but does not prevent Monell liability for the underlying constitutional violation).
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4. We review for abuse of discretion the district court’s decision not to
impose sanctions under Federal Rule of Civil Procedure 37(e). R & R Sails, Inc. v.
Ins. Co. of Penn., 673 F.3d 1240, 1245 (9th Cir. 2012). We affirm.
Rule 37(e) sanctions are available when “electronically stored information
that should have been preserved in the anticipation or conduct of litigation is lost
because a party failed to take reasonable steps to preserve it, and [the information]
cannot be restored or replaced through additional discovery.” Fed. R. Civ. P.
37(e). Two categories of sanctions exist. First, where the district court finds that
the loss of information has prejudiced the moving party, the district court may
order “measures no greater than necessary to cure the prejudice.” Fed. R. Civ. P.
37(e)(1). Second, where the district court finds that the offending party “acted
with the intent to deprive another party of the information’s use in the litigation,”
the district court may require an adverse evidentiary presumption, dismiss the case,
or enter default judgment. Fed. R. Civ. P. 37(e)(2).
The parties framed the sanctions issue as invoking the district court’s
inherent authority. However, at the time the sanctions motion was filed, sanctions
were governed by the current version of Rule 37(e). Rule 37(e) “specifies
measures a court may employ if [electronically stored] information that should
have been preserved is lost” — including terminating sanctions — “and specifies
the findings necessary to justify these measures.” Fed. R. Civ. P. 37 Advisory
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Committee Notes to the 2015 Amendment. The detailed language of Rule 37(e)
“therefore foreclose[d] reliance on inherent authority” to determine whether
terminating sanctions were appropriate. Id.The district court did not abuse its discretion in concluding that sanctions
were not warranted under either subsection of Rule 37(e). The plaintiffs maintain
that the County destroyed emails between Rohleder and Moreno that might have
demonstrated that County officers were more closely involved in planning the
Edgehill search than they admitted. But the district court reasonably concluded
that the missing emails caused no prejudice to the plaintiffs, as the existing record
adequately demonstrated that the County officers played only a minor role in the
search, the details of which they learned on the day it occurred. Furthermore, the
district court properly exercised its discretion in finding spoliation unlikely in this
case, and terminating sanctions unjustified, given the relative insignificance of any
gap in the County’s production.
AFFIRMED.
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