Steven Crain v. State of Nevada ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 24 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVEN CRAIN, No. 17-15116
Plaintiff-Appellant, D.C. No.
2:16-cv-00406-JAD-PAL
v.
STATE OF NEVADA and MICHAEL MEMORANDUM*
VANDYKE, Parole Officer,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Jennifer A. Dorsey, District Judge, Presiding
Submitted May 15, 2018**
San Francisco, California
Before: WALLACE and N.R. SMITH, Circuit Judges, and BATTS,*** District
Judge.
Crain appeals from the dismissal of his section 1983 claims for unlawful
*
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 Deborah A. Batts, United States District Judge for the
Southern District of New York, sitting by designation.
arrest and malicious prosecution in violation of his Fourth Amendment rights, and
the dismissal of his Nevada claim for malicious prosecution. Crain has waived any
challenge to the dismissal of his Nevada claims for false imprisonment and
intentional infliction of emotional distress by failing to brief the issues on appeal.
United States v. Murillo-Alvarado, 876 F.3d 1022, 1026 n.2 (9th Cir. 2017).
1. The district court properly dismissed Crain’s section 1983 claim for
unlawful arrest because documents in the record contradict his allegation that
Officer VanDyke made a deliberate falsehood or omission in obtaining the arrest
warrant. See Chism v. Washington State, 661 F.3d 380, 386 (9th Cir. 2011). The
district court properly took judicial notice of the documents because they included
both public records and documents necessarily relied on by the complaint. See
Marder v. Lopez, 450 F.3d 445, 448 (9th Cir. 2006); United States v. Ritchie, 342
F.3d 903, 908 (9th Cir. 2003). Crain does not dispute the contents or authenticity
of the documents. See Skilstaf v. CVS Caremark, 669 F.3d 1005, 1016 n.9 (9th Cir.
2012). In addition, Crain has waived any challenge to the taking of judicial notice
by failing to brief the issue on appeal. Murillo-Alvarado, 876 F.3d at 1026 n.2.
2. The district court properly dismissed Crain’s section 1983 and Nevada
claims for malicious prosecution. Crain has failed to rebut the presumption that
the prosecutor exercised independent judgment because, as discussed above, he has
not shown that Officer VanDyke presented the prosecutor with information known
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to be false. See Blankenhorn v. City of Orange, 485 F.3d 463, 482 (9th Cir. 2007).
Nor has he shown that Officer VanDyke pressured the prosecutor or caused the
prosecutor to act contrary to the prosecutor’s independent judgment. Id.; M & R
Inv. Co. v. Mandarino, 748 P.2d 488, 494 (Nev. 1987).
3. The district court did not abuse its discretion in denying Crain a third
opportunity to amend his complaint. Garmon v. County of Los Angeles, 828 F.3d
837, 842 (9th Cir. 2016). Because the judicially noticed documents show Officer
VanDyke did not violate Crain’s constitutional rights in filing the challenged
affidavit, any amendment would be futile. Id.
AFFIRMED.
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