Steven Peck v. Margaret Hinchey

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 7 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT STEVEN PECK; et al., No. 17-16397 Plaintiffs-Appellants, D.C. No. 2:12-cv-01371-JAT v. MEMORANDUM* MARGARET HINCHEY, individually and in her official capacity as a peace officer with the Arizona Attorney General's Office, Defendant-Appellee.

Appeal from the United States District Court for the District of Arizona James A. Teilborg, District Judge, Presiding Submitted March 4, 2019** Phoenix, Arizona Before: CLIFTON, IKUTA, and FRIEDLAND, Circuit Judges.

Plaintiffs-Appellants Steven Peck, Benjamin Sywarungsymun, Aaron Lentz, and Shannon Lentz (“Plaintiffs”) brought a 42 U.S.C. § 1983 action against Defendant-Appellee Attorney General Special Agent Margaret Hinchey. In that

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. action, Plaintiffs alleged that Hinchey violated their due process rights and maliciously caused their prosecution by fabricating evidence in several reports to the Arizona Attorney General to show that they worked fewer hours in an off-duty job than they had reported working, constituting theft. The district court granted summary judgment to Hinchey on both the deliberate fabrication and malicious prosecution claims on the basis of qualified immunity.1 We review de novo the district court’s grant of summary judgment. See Longoria v. Pinal Cty., 873 F.3d 699, 703-04 (9th Cir. 2017).

We affirm the grant of summary judgment on the deliberate fabrication claims. Viewing the evidence in the light most favorable to the non-moving party, see Cortez v. Skol, 776 F.3d 1046, 1050 (9th Cir. 2015), Plaintiffs have failed to raise a genuine issue of material fact that Hinchey deliberately made a false statement or fabricated evidence, as opposed to making reasonable mistakes in methodology or in interpreting data. See Spencer v. Peters, 857 F.3d 789, 798-99 (9th Cir. 2017). Nor have Plaintiffs raised a genuine issue of material fact that Hinchey knew or should have known that Plaintiffs were innocent or that Hinchey used investigative techniques that were so coercive and abusive that she knew or should have known that those techniques would yield false information. See Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). And because Plaintiffs’ argument on appeal that Hinchey acted with malice is entirely dependent on the premise that Hinchey deliberately fabricated evidence, we affirm on the malicious prosecution claim as well.

AFFIRMED.2