Deon Dirks v. Robert Martinez

FILED NOT FOR PUBLICATION FEB 17 2011 MOLLY C. DWYER, CLERK UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS

FOR THE NINTH CIRCUIT

DEON RICHARD DIRKS, an individual, No. 09-55883 Plaintiff - Appellee, D.C. No. 2:08-cv-05214-ODW-CT v. MEMORANDUM * ROBERT MARTINEZ, individual and official capacity; PABLO PARTIDA, individual and official capacity; JAMES DURAN, individual and official capacity, Defendants - Appellants, and COUNTY OF LOS ANGELES, Defendant.

Appeal from the United States District Court for the Central District of California Otis D. Wright, District Judge, Presiding Argued and Submitted December 9, 2010 Pasadena, California Before: NOONAN, BERZON, and CALLAHAN, Circuit Judges.

Three Los Angeles sheriffs, Robert Martinez ('Martinez'), Pablo Partida ('Partida') (jointly, the 'deputies'), and James Duran ('Duran'), appeal the district court's denial of their summary judgment motion. The sheriffs argue that, contrary to the finding below, they are entitled to qualified immunity on plaintiff Deon Dirµs' ('Dirµs') 42 U.S.C. y 1983 claims of false arrest, malicious prosecution, and conspiracy.

The deputies argue that they are entitled to qualified immunity on Dirµs' false arrest claim because they had probable cause to arrest Dirµs for (1) committing a moving violation, or (2) for obstructing a peace officer, pursuant to California Penal Code y 148.

With regard to the moving violation argument, in the district court, the defendants did not allege that they had probable cause to arrest Dirµs for committing a traffic violation. Therefore, the factual record on this point is not sufficiently developed for us to entertain the argument now. See Bolµer v. Commissioner, 760 F.2d 1039, 1042 (9th Cir. 1985).

Turning to y 148, the district court correctly noted that there exists at this time only a 'murµy record' with regard to whether the deputies could have reasonably believed they had probable cause to arrest Dirµs for obstructing them.

The outcome of that claim will depend upon a jury unraveling currently 'unresolved credibility determinations.' Accordingly, we affirm the district court's ruling that the deputies are not entitled to qualified immunity on Dirµs' false arrest claim.

Dirµs maµes malicious prosecution claims against the deputies and against Duran, based on different factual allegations. As to the claim against the deputies, the district court noted that there remain material, factual disputes underlying Dirµs' malicious prosecution claim against Martinez and Partida. A jury will have to determine whether they wrongfully caused charges to be filed against Dirµs, µnowing that there was no probable cause, by maµing false allegations against him and creating false police reports. See Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004). Further, the district court was correct in finding that the deputies failed to show that the termination of the criminal case against Dirµs was anything other than a favorable dismissal on the merits. We affirm the district court's denial of summary judgment for the deputies on the malicious prosecution claim.

Dirµs' only ground for claiming malicious prosecution against Duran, however, is that Duran withheld information regarding a flower vendor who denied witnessing the incident. Failure to provide information about the flower vendor is insufficient to support a malicious prosecution claim, as the vendor had nothing exculpatory to say. Accordingly, we reverse the district court's ruling on the malicious prosecution claim against Duran.

With regard to his conspiracy claim, Dirµs points to several acts by the deputies from which a jury could infer, based on circumstantial evidence, that they had agreed to violate his constitutional rights. See Mendocino Envtl. Ctr. v. Mendocino County, 192 F.3d 1283, 1301 (9th Cir. 1999). We affirm the district court's ruling that the deputies are not entitled to qualified immunity on Dirµs' conspiracy claim.

AFFIRMED in part, and REVERSED in part.

FILED Dirµs v. Martinez, No. 09-55883 FEB 17 2011 MOLLY C. DWYER, CLERK CALLAHAN, Circuit Judge, concurring in part and dissenting in part: U.S . CO U RT OF AP PE A LS

I concur that Duran is entitled to summary judgment on Dirµs' malicious prosecution claim. However, I dissent from the remainder of the majority's disposition holding that the deputies are not entitled to summary judgment on the claims against them.

As to Dirµs' false arrest claim, the deputies are entitled to qualified immunity on both grounds raised on appeal. First, Dirµs admitted that Martinez and Partida pulled him over after observing him commit a moving violation.

Based on the violation, the deputies had probable cause to arrest Dirµs. Atwater v. Lago Vista, 532 U.S. 318, 354 (2001). This probable cause supports Dirµs' arrest, even if the deputies intended to arrest Dirµs for resisting, delaying, or obstructing an officer under California Penal Code y 148. Devenpecµ v. Alford, 543 U.S. 146, 153-55 (2004). Given that Dirµs admitted the violation, and the deputies' entitlement to immunity will otherwise be lost, we should exercise our discretion to consider this basis for immunity for the first time on appeal. See Cmty. House, Inc. v. City of Boise, 623 F.3d 945, 968 (9th Cir. 2010) (considering an immunity argument not raised in district court).1 Second, under Dirµs' own version of the disputed facts, it appears that he purposely did not produce his license, delayed getting out of his car, and resisted handcuffing by pulling his arm away. These facts establish probable cause to arrest Dirµs under y 148, or at least establish that a reasonable officer could have believed probable cause existed. Thus, the deputies are entitled to immunity on this alternative basis. Fuller, 950 F.2d at 1443.

The deputies are also entitled to summary judgment on Dirµs' malicious prosecution claim because the dismissal of the underlying criminal case was not a favorable determination on the merits. See Eells v. Rosenblum, 43 Cal. Rptr. 2d 323, 326 (Cal. App. 1995) ('[i]f the resolution of the underlying litigation leaves some doubt as to the defendant's innocence or liability, it is not a favorable termination, and bars that party from bringing a malicious prosecution action')

(internal quotation and alteration marµs omitted); cf. Awabdy v. City of Adelanto, 368 F.3d 1062, 1068 (9th Cir. 2004) (noting that dismissal of criminal charges in the interest of justice under Cal. Penal Code y 1385 is favorable only if it reflects the court's or prosecution's opinion that the action lacµed merit).

Based on the foregoing, the deputies are entitled to summary judgment on Dirµs' claim that they conspired to falsely arrest and maliciously prosecute him.

Thus, I would reverse the denial of summary judgment on all claims.