Richard Orcutt v. Jacob Pelletier ( 2023 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 31 2023
FOR THE NINTH CIRCUIT MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
RICHARD VINCENT ORCUTT, No. 22-55494
Plaintiff-Appellant, D.C. No. 2:21-cv-05224-GW-JEM
v.
JACOB PELLETIER, individually, and in MEMORANDUM*
his official capacity as a police officer for the
City of San Luis Obispo; JOSH BYWATER,
individually, and in his official capacity as a
police officer for the City of San Luis
Obispo; EVAN STRADLEY, individually,
and in his official capacity as a police officer
for the City of San Luis Obispo; MIGUEL
LOZANO, individually, and in his official
capacity as a police officer for the City of
San Luis Obispo; DOES, 1-50 inclusive,
individually, and in their official capacities
as peace officers of the City of San Luis
Obispo, jointly and severally,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
George H. Wu, District Judge, Presiding
Argued and Submitted March 7, 2023
Pasadena, California
Before: WATFORD and COLLINS, Circuit Judges, and MURPHY,** District
Judge.
*
This disposition is not appropriate for publication and is not precedent except as
provided by Ninth Circuit Rule 36-3.
**
The Honorable Stephen Joseph Murphy III, United States District Judge for the
Eastern District of Michigan, sitting by designation.
Richard Orcutt appeals the district court’s dismissal of his claims under 42
U.S.C. § 1983 against Officers Josh Bywater and Evan Stradley of the San Luis
Obispo Police Department (“SLO PD”). Orcutt alleged that Bywater and Stradley
falsified evidence used in a police investigation that led to criminal charges that
were subsequently dropped. Reviewing de novo, Campanelli v. Bockrath, 100
F.3d 1476, 1479 (9th Cir. 1996), we affirm on the ground that Orcutt failed to
plead sufficient facts to state a claim.
In his brief on appeal, Orcutt contends that he adequately pleaded that
“Bywater and Stradley deliberately falsified police reports, thereby violating
Orcutt’s right . . . ‘not to be subjected to criminal charges on the basis of false
evidence that was deliberately fabricated by the government’” (quoting Devereaux
v. Abbey, 263 F.3d 1070, 1074–75 (9th Cir. 2001) (en banc)). To establish this
claim, Orcutt must plead sufficient facts to show that the alleged deliberate
fabrication “caused [his] deprivation of liberty”—here, the filing of charges against
Orcutt for, inter alia, alleged criminal threats, some of them with “hate crime”
enhancements. Spencer v. Peters, 857 F.3d 789, 798 (9th Cir. 2017) (emphasis
added). Ordinarily, to establish the requisite causation, “the plaintiff must show
that (a) the act was the cause in fact of the deprivation of liberty, meaning that the
injury would not have occurred in the absence of the conduct; and (b) the act was
the ‘proximate cause’ or ‘legal cause’ of the injury, meaning that the injury is of a
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type that a reasonable person would see as a likely result of the conduct in
question.” Id. We have also held, however, that in “certain circumstances,” a “less
demanding causal standard[]” applies, under which the plaintiff “can establish
factual causation if he can show a reasonable likelihood” that the falsified evidence
affected the relevant decision. Richards v. County of San Bernardino, 39 F.4th
562, 573–74 (9th Cir. 2022). We need not resolve whether this case is governed
by the traditional but-for causation standard or “the less demanding materiality
causation standard” of Richards, id. at 573, because we conclude that Orcutt failed
to plead sufficient facts to raise a “plausible inference” of causation under either
standard, Ashcroft v. Iqbal, 556 U.S. 662, 682 (2009).
Orcutt alleges that Bywater fabricated evidence against him by falsely
stating in a written police report that Orcutt made racist comments in the police car
after his arrest. But Orcutt’s own complaint confirms that the alleged racist
comments were cumulative of other evidence and collateral to the grounds for
charging him. The complaint alleges that John MacDonald, a former coworker of
Orcutt’s, had stated, both to a SLO PD officer and at the preliminary hearing, that
the handwriting contained in the threatening cards appeared to be Orcutt’s.
Orcutt’s brief correctly portrays this handwriting identification as “the only direct
evidence linking [him] to the crime.” Orcutt attached the transcript of the
preliminary hearing to his complaint, and the prosecutor explained at the hearing
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that she was dismissing the charges because the FBI’s expert handwriting analysis
was unable to corroborate MacDonald’s identification and the investigation had
“really found nothing that could corroborate this case.” Moreover, Orcutt does not
challenge Stradley’s report that one of Orcutt’s neighbors claimed that Orcutt used
“racist language and racial epithets” on several occasions. Given (1) the
undisputed centrality of MacDonald’s handwriting identification to the decision
both to bring and to drop the charges; and (2) the unchallenged report that another
neighbor had claimed that Orcutt made racist comments, it is wholly implausible to
infer that Orcutt’s alleged additional racist comments in the police car after his
arrest played any material role in the filing of criminal charges against him.
For similar reasons, Orcutt’s claim that Stradley intentionally falsified
evidence also fails. Orcutt alleged that, in reporting MacDonald’s handwriting
identification, Stradley falsely stated that MacDonald had communicated that
identification to Stradley, when in fact MacDonald stated at the preliminary
hearing that he had made that statement to another officer. But given that the
complaint concedes that MacDonald did in fact communicate his handwriting
identification to the SLO PD, it is implausible to infer that the identity of the
particular officer to whom MacDonald spoke was a material causal factor in the
decision to pursue charges.
Finally, we reject Orcutt’s contention that the district court abused its
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discretion by denying him leave to amend his complaint. Orcutt has wholly failed
to explain how any amendment, if permitted, could cure the defects we have
identified.
AFFIRMED.
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