Donald Robertson v. Ferry County , 697 F. App'x 500 ( 2017 )

FILED
NOT FOR PUBLICATION
SEP 06 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONALD G. ROBERTSON and No. 15-35561
COLLEEN F. ROBERTSON,
D.C. No. 2:14-cv-00117-RMP
Plaintiffs-Appellants,
v. MEMORANDUM*
FERRY COUNTY, a municipal
corporation; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
Rosanna Malouf Peterson, District Judge, Presiding
Submitted August 28, 2017**
Seattle, Washington
Before: HAWKINS and McKEOWN, Circuit Judges, and ROTHSTEIN,***
District Judge.
*
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).
***
The Honorable Barbara Jacobs Rothstein, United States District Judge for
the Western District of Washington, sitting by designation.
Donald and Colleen Robertson (“the Robertsons”) appeal the adverse summary
judgment grant in their 42 U.S.C. § 1983 and state law action. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm.
1. The Robertsons have not made a “substantial showing” that Deputy Talon
Venturo “deliberately or recklessly made false statements or omissions” in the warrant
application to search their residence. Ewing v. City of Stockton, 588 F.3d 1218, 1223
(9th Cir. 2009) (citation omitted). Accordingly, there was no error in granting
summary judgment to Deputy Venturo.
Additionally, to the extent the Robertsons argue the search warrant did not
satisfy the Fourth Amendment’s particularity requirement, Deputy Venturo is entitled
to qualified immunity. See KRL v. Estate of Moore, 512 F.3d 1184, 1189 (9th Cir.
2008).
2. The Robertsons’ request, made for the first time on appeal, to amend their
pleadings to add Deputy John Lofts as a defendant in the case has been waived
because the Robertsons did not seek leave to amend before the district court. See
Alaska v. United States, 201 F.3d 1154, 1163-64 (9th Cir. 2000). Moreover, the
Robertsons have not shown “good cause” under Federal Rule of Civil Procedure 16
for their failure to comply with the district court’s scheduling order deadlines.
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Accordingly, there was no error in granting summary judgment on the Robertsons’
claim that Deputy Lofts assaulted Colleen Robertson.
3. The Robertsons have not adduced sufficient evidence creating triable issues of
fact as to Sheriff Pete Warner’s supervisorial liability or Ferry County and the Ferry
County Sheriff’s Department’s municipal liability. See Blankenhorn v. City of
Orange, 485 F.3d 463, 485 (9th Cir. 2007) (discussing supervisorial liability); Monell
v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658 (1978) (discussing municipal liability).
Accordingly, there was no error in granting summary judgment to these defendants.
4. The Robertsons’ claim that searching their residence was improper because
Washington state authorized their use of medicinal marijuana fails. At the time
sheriff’s deputies searched their residence, Washington law only provided an
affirmative defense to charges of violations of state law relating to marijuana. State
v. Reis, 351 P.3d 127, 131 (Wash. 2015). Such an affirmative defense “does not
undermine probable cause for a search warrant.” Id. at 136. Accordingly, there was
no error in granting summary judgment on this claim.
AFFIRMED.
3