Norwood Price v. Michael Peerson , 643 F. App'x 637 ( 2016 )

FILED
NOT FOR PUBLICATION
MAR 22 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NORWOOD PRICE, No. 14-55836
Plaintiff - Appellant, D.C. No. 2:13-cv-03390-PSG-JEM
v.
MEMORANDUM*
MICHAEL PEERSON; AKAL
SECURITY INC.; WILLIAM
WALLACE; POTE PIGULSAWAS;
STEVEN MCGRATH,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Submitted March 7, 2016**
Pasadena, California
Before: W. FLETCHER, MURGUIA, and OWENS, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Appellant Norwood Price appeals the district court’s grant of summary
judgment in favor of Appellees Michael Peerson—a U.S. Marshal—and three
Courthouse Security Officers (“CSOs”), who purportedly detained Price for
approximately ten minutes at a federal courthouse in Los Angeles, California, after
Price inquired about the courthouse’s policy of requiring visitors to remove their
shoes before entering. We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
As a preliminary matter, Price has moved to strike portions of one of the
answering briefs as irrelevant and prejudicial. We disfavor motions to strike, and
Price offers no authority in support of the relief he seeks. Accordingly, his motion
to strike is denied.
On the merits, the district court did not err in granting summary judgment
on Price’s claims under Bivens v. Six Unknown Named Agents of Fed. Bureau of
Narcotics, 403 U.S. 388 (1971). Price has failed to demonstrate the existence of a
genuine issue of material fact regarding whether any of the defendants-appellees
violated his First or Fourth Amendment rights. The undisputed evidence
establishes that the CSOs’ brief conversation with Price was not a “seizure” within
the meaning of the Fourth Amendment because a reasonable person in Price’s
position would have felt free to terminate the interaction and leave, see United
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States v. Orman, 486 F.3d 1170, 1175 (9th Cir. 2007), and nothing in the record
shows that the defendants-appellees intended to interfere with Price’s First
Amendment right to file a grievance against the Marshal.
See Mendocino Envtl. Ctr. v. Mendocino Cty., 14 F.3d 457, 464 (9th Cir. 1994).
Further, because Price failed to raise a genuine issue of material fact as to
whether any of the defendants-appellees violated his First or Fourth Amendment
rights, his claim under California’s Bane Act likewise fails as a matter of law. See
Cameron v. Craig, 713 F.3d 1012, 1022 (9th Cir. 2013) (“[The Bane Act] does not
provide any substantive protections; instead, it enables individuals to sue for
damages as a result of constitutional violations.” (quoting in parenthetical Reynolds
v. Cty. of San Diego, 84 F.3d 1162, 1170 (9th Cir. 1996), overruled on other
grounds by Acri v. Varian Assocs., Inc., 114 F.3d 999, 1000 (9th Cir. 1997))).
Finally, the district court was within its discretion to conclude that the U.S.
Marshals Service had no reason to believe it had a duty to preserve courthouse
security tapes of Price’s visit to the Marshal’s Office, which are ordinarily
recorded over every thirty days. There was no evidence that the videos were
intentionally destroyed, nor did future litigation arising out of the incident with
Price appear likely until nearly a year after the recordings were erased. See United
States v. Kitsap Physicians Serv., 314 F.3d 995, 1001 (9th Cir. 2002) (“Defendants
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engage in spoliation of documents as a matter of law only if they had ‘some notice
that the documents were potentially relevant’ to the litigation before they were
destroyed.” (citation omitted)).
AFFIRMED.
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