O. L. v. Liliana Jara

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAY 12 2022
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
O. L., No. 21-55740
Plaintiff-Appellant, D.C. No.
2:20-cv-00797-RGK-JDE
v.
LILIANA JARA; et al., MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Argued and Submitted April 13, 2022
Pasadena, California
Before: BADE and LEE, Circuit Judges, and CARDONE,** District Judge.
Plaintiff-Appellant “O.L.” sued, claiming that officers at the City of El Monte
Police Department (EMPD) and Los Angeles Sheriff’s Department (LASD)
mishandled their investigations of her claim of rape. She alleged violations of the
Equal Protection Clause and the Fourth Amendment, and brought claims against
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Kathleen Cardone, United States District Judge for the
Western District of Texas, sitting by designation.
individual officers under 42 U.S.C. § 1983 and against the municipalities under
section 1983 and Monell v. Department of Social Services of N.Y.C., 439 U.S. 658(1978), among other things. The district court dismissed the equal protection claims
against the individual officers and municipalities, and granted summary judgment
for the defendants on the Fourth Amendment claim. We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
BACKGROUND
O.L. met her alleged assailant online and went on a date with him. She
claimed that he raped her later that night, and she reported it to the EMPD. O.L.
showed Officer Martha Tate messages on her cell phone between herself and the
alleged assailant. In those messages, O.L. casually discussed the sexual activity that
occurred the night of the alleged rape and agreed to meet him again for a future
sexual encounter. Based on these messages, Officer Tate questioned O.L. about
alcohol use, consent, and her motive for reporting the alleged crime.
O.L.’s case was later transferred to LASD. Detective Liliana Jara interviewed
her. O.L. showed Detective Jara the same messages on her cell phone. Detective
Jara also saw a message in which O.L. told the alleged assailant that she “could make
him lose his job” after she discovered that he had remained active on the online
dating website where they met. The detective, too, questioned O.L. about her motive
for reporting the alleged crime and ultimately told O.L. that her case suffered from
2
many problems.
At the end of the interview, O.L. agreed to provide her cell phone to LASD to
download messages. O.L. provided Detective Jara with her cell phone password and
signed a form giving LASD consent to search the phone for “any and all data” related
to the case. Before returning the phone to her, LASD’s task force downloaded the
phone’s data onto a USB drive to allow the investigating officer to review the data.
O.L. then retrieved her cell phone from LASD custody.
After the Los Angeles District Attorney declined to file charges against the
alleged assailant, O.L. filed a pro se complaint. The district court denied O.L.’s
request to proceed under a pseudonym, and O.L. filed an amended complaint
replacing “Jane Doe” with her supposed initials. The district court dismissed the
equal protection and Monell claims, and then granted summary judgment for
defendants on the Fourth Amendment claim.
DISCUSSION
1. Fourth Amendment Claim: O.L. argues that Detective Jara unlawfully
searched her phone and that LASD’s copying of data from her phone amounted to
an illegal seizure.
First, O.L. has not shown that Detective Jara violated her Fourth Amendment
right against unreasonable searches. O.L.’s only evidence that her phone was
searched is a screenshot image of a single message on her phone from a friend that
3
was translated from Chinese into English in her WeChat App. She claims that the
message was translated while the phone was in LASD’s custody, but the screenshot
she provided does not show when the translation happened. O.L. cannot create a
factual dispute by speculating that Detective Jara searched the phone and translated
the message. See Loomis v. Cornish, 836 F.3d 991, 997 (9th Cir. 2016) (“[M]ere
allegation and speculation do not create a factual dispute for purposes of summary
judgment.” (alternation in original) (citation omitted)).
In any event, O.L. consented to the search. She admits to signing a form when
she voluntarily gave her cell phone and its password to Detective Jara. O.L.’s
signature is on a form called “Entry and Search Waiver,” which is dated that same
day. The form gave LASD “full and unconditional authority,” and “unrestricted
access” to search O.L.’s cell phone. O.L. maintains that she did not sign this form,
but she has abandoned the argument that her signature was forged by failing to
challenge the district court’s finding on appeal. The only plausible inference is that
O.L. signed the search waiver form when she gave her cell phone to Detective Jara.
See Scott v. Harris, 550 U.S. 372, 380 (2007) (“When opposing parties tell two
different stories, one of which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt that version of the facts for
purposes of ruling on a motion for summary judgment.”).
Second, qualified immunity bars her unlawful seizure claim because it is not
4
clearly established that copying electronic data for review after voluntarily agreeing
to a search amounts to a Fourth Amendment violation. See Sharp v. County of
Orange, 871 F.3d 901, 911 (9th Cir. 2017) (requiring “prior case law that articulates
a constitutional rule specific enough to alert [the officer] in this case that [her]
particular conduct was unlawful” (emphases omitted)). In Arizona v. Hicks, the
Supreme Court held that the police copying down the serial numbers on stereo
equipment “did not constitute a seizure” because “it did not meaningfully interfere
with respondent’s possessory interest in either the serial numbers or the equipment.”
480 U.S. 321, 324 (1987) (internal quotation marks omitted). While the nature of
cell phone data is different than serial numbers on a stereo, it is unsettled as to how
far the “possessory interest” principle extends.
O.L.’s reliance on United States v. Comprehensive Drug Testing, Inc. (CDT)
is misplaced. See 621 F.3d 1162 (9th Cir. 2010) (en banc) (per curiam), overruled
in part on other grounds as recognized by Demaree v. Pederson, 887 F.3d 870, 876
(9th Cir. 2018) (per curiam). In that case, the court authorized the federal
government to seize “considerably more data than that for which it had probable
cause,” subject to certain procedural safeguards. Id. at 1168–69. The government,
however, ignored the required protocols, seized large amounts of data, and later
justified its retention of the seized data under the “plain view” doctrine. Id. at 1169–
72. On appeal, we cautioned against the government retaining unresponsive data
5
based on the plain view doctrine. Id. at 1169–71, 1174. We, however, recognized
that “over-seizing is an inherent part of the electronic search process.” Id. at 1177;
see also United States v. Flores, 802 F.3d 1028, 1044–45 (9th Cir. 2015). CDT does
not put it beyond debate that law enforcement making a temporary local copy of cell
phone data while consensually possessing the phone constitutes an unlawful seizure.
2. Equal Protection Claim: To state an equal protection claim under § 1983,
O.L. must plausibly allege facts showing that “the defendants acted with an intent or
purpose to discriminate against [her] based upon membership in a protected class.”
Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001) (internal quotation
marks omitted). She does not allege facts showing that the officers treated her
investigation differently than other criminal investigations. For example, she alleges
that Officer Tate asked O.L.: “What made her think she was a victim of rape.” The
Second Amended Complaint then simply concludes that “[v]ictims of other type[s]
of crimes would not be asked the same question.” “Threadbare recitals of the
elements of a cause of action, supported by mere conclusory statements,” however,
“do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
3. Monell claims: O.L. failed to state cognizable Monell claims against the
City of El Monte and the County of Los Angeles. To establish municipal liability,
O.L. must allege: “(1) she was deprived of a constitutional right; (2) [EMPD and
LASD] had a policy; (3) the policy amounted to a deliberate indifference to her
6
constitutional right; and (4) the policy was the moving force behind the
constitutional violation.” Mabe v. San Bernardino County, Dept. of Pub. Soc. Servs.,
237 F.3d 1101, 1110–11 (9th Cir. 2001) (internal quotation marks omitted).
O.L.’s Monell claim for violation of equal protection fails because she did not
show any underlying constitutional violation. See Lockett v. County of Los Angeles,
977 F.3d 737, 741 (9th Cir. 2020). Moreover, O.L.’s conclusory allegations focus
only on the handling of her case, and she has not articulated any “persistent and
widespread” customs that “constitute a permanent and well settled city policy.”
Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (internal quotation marks
omitted).
4. Leave to amend: The district court did not abuse its discretion in denying
O.L. leave to amend her complaint for the third time. O.L. had already amended her
complaint, and, before ruling on the motion to dismiss, the judge stopped the
proceedings multiple times to allow O.L. time to think about additional allegations
to cure her complaint. But O.L. responded with redundant allegations and
conclusory statements.
5. Redaction: The district court did not abuse its discretion in denying O.L.’s
motion to seal an exhibit filed with the court. See Pintos v. Pac. Creditors Ass’n,
7
605 F.3d 665, 679 (9th Cir. 2010).1 O.L. contends that sealing or redacting a portion
of the record is “necessary to preserve [her] anonymity,” but the district court
determined that the portion of the record at issue did not “itself identify [O.L.] by
name.” O.L. has not challenged this finding on appeal or shown that this finding
was “illogical, implausible, or without support in inferences that may be drawn from
the record.” United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en
banc). O.L. has not met her burden of showing a “compelling reason” for sealing
the document. Kamakana v. City & County of Honolulu, 447 F.3d 1172, 1178 (9th
Cir. 2006). We thus affirm the district court’s denial of the request to seal.2
AFFIRMED.
1
O.L. has filed similar cases in other courts involving different individuals and
municipalities. Decl. of Erin R. Dunkerly at 13–14, O.L. v. City of El Monte, et al.,
No. 21-55246 (9th Cir. Aug. 9, 2021), ECF No. 5; see, e.g., Doe v. City of Concord,
No. 22-15384 (9th Cir. docketed March 15, 2022); Doe v. U.S Dist. Ct. for the Cent.
Dist. of Cal., No. 22-70056 (9th Cir. denied April 19, 2022). In those other cases,
as here, she proceeds either as Jane Doe or by initials (which may or may not be her
own). While O.L. makes it difficult to track her cases because she uses initials or
pseudonyms, we caution that “[f]lagrant abuse of the judicial process cannot be
tolerated because it enables one person to preempt the use of judicial time that
properly could be used to consider the meritorious claims of other litigants.” De
Long v. Hennessey, 912 F.2d 1144, 1148 (9th Cir. 1990).
2
O.L. requests that this same document be redacted or sealed in the record on appeal.
Because O.L. has not met her burden of showing a “compelling reason” to seal the
document, we decline to order this document sealed in the record before this court.
8