Bias v. Moynihan

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALICE BIAS, 
Plaintiff-Appellant,
v. No. 05-16752
FRANK MOYNIHAN, San Leandro  D.C. No.
CV-04-00615-SBA
Police Officer; CITY OF SAN
LEANDRO; JOSEPH KITCHEN, San OPINION
Leandro Police Chief,
Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of California
Saundra B. Armstrong, District Judge, Presiding
Argued and Submitted
October 18, 2007—San Francisco, California
Filed November 29, 2007
Before: Arthur L. Alarcón and Richard C. Tallman,
Circuit Judges, and Kevin Thomas Duffy,* Senior Judge.
Opinion by Judge Alarcón
*The Honorable Kevin Thomas Duffy, Senior United States District
Judge for the Southern District of New York, sitting by designation.
15333
BIAS v. MOYNIHAN 15337
COUNSEL
Barry K. Tagawa, San Francisco California, for the appellant.
Joseph M. Quinn and Tricia Hynes (argued), Meyers, Nave,
Riback, Silver & Wilson, Oakland, California, for the appel-
lees.
OPINION
ALARCÓN, Circuit Judge:
Alice Bias appeals from the order of the district court grant-
ing summary judgment in favor of Officer Frank Moynihan,
Police Chief Joseph Kitchen, and the City of San Leandro.
She contends that the district court erred in concluding that
she failed to demonstrate that there were genuine issues of
facts in dispute regarding whether the Appellees detained her
for psychiatric evaluation without probable cause in violation
of her federal and state law rights. Ms. Bias also claims that
the district court abused its discretion in its evidentiary and
procedural rulings. We affirm because we conclude that prob-
able cause existed to justify detaining her on two occasions,
and the district court’s evidentiary and procedural rulings do
not compel a reversal of the judgment.
I
A
The record shows that in May 2002, Ms. Bias was the
plaintiff in a civil action before Alameda County Superior
15338 BIAS v. MOYNIHAN
Court Judge Kenneth Burr. She wrote a letter dated May 22,
2002, to Judge Burr in which she stated: “If I lose this case,
I shall kill myself.”
On or about May 23, 2002, the Alameda Sheriff’s Office
requested that the San Leandro Police Department contact
Ms. Bias. Officer Moynihan was dispatched to interview Ms.
Bias about her letter to Judge Burr. Officer Moynihan alleged
in his declaration that when he asked Ms. Bias if she was
going to kill herself if she lost her case, she responded that
“she would do what she wanted to herself when her case was
over.” She appeared to be depressed and emotional. Officer
Moynihan observed that Ms. Bias did not have anyone in her
home to watch her. Officer Moynihan became concerned that
Ms. Bias might hurt herself. Ms. Bias testified during her
deposition that she told the interviewing officer that she was
“very depressed” and that she could “not guarantee” whether
an “Arab terrorist” might “kill” her. Officer Moynihan
detained Ms. Bias pursuant to California Welfare and Institu-
tions Code section 5150.1 He reported his observations in an
1
Section 5150 provides:
When any person, as a result of mental disorder, is a danger to
others, or to himself or herself, or gravely disabled, a peace offi-
cer, member of the attending staff, as defined by regulation, of an
evaluation facility designated by the county, designated members
of a mobile crisis team provided by Section 5651.7, or other pro-
fessional person designated by the county may, upon probable
cause, take, or cause to be taken, the person into custody and
place him or her in a facility designated by the county and
approved by the State Department of Mental Health as a facility
for 72-hour treatment and evaluation.
Such facility shall require an application in writing stating the
circumstances under which the person’s condition was called to
the attention of the officer, member of the attending staff, or pro-
fessional person, and stating that the officer, member of the
attending staff, or professional person has probable cause to
believe that the person is, as a result of mental disorder, a danger
to others, or to himself or herself, or gravely disabled. If the prob-
able cause is based on the statement of a person other than the
officer, member of the attending staff, or professional person,
such person shall be liable in a civil action for intentionally giv-
ing a statement which he or she knows to be false.
BIAS v. MOYNIHAN 15339
application for emergency psychiatric detention and signed
the report.2 Ms. Bias was transported to a psychiatric hospital
and released later that same evening after being examined.
On May 14, 2003, Officer Moynihan was parked near a
shopping center. Ms. Bias approached Officer Moynihan as
he sat in the driver’s seat of a marked police vehicle. She
appeared to be extremely agitated. She asked Officer Moyni-
han to take a report about her neighbors. She reported that
they “were out to get her for disturbing a meeting” and “were
plotting against her and mistreating her.” Officer Moynihan
spoke with Ms. Bias’s neighbor who reported that Ms. Bias
constantly accused her “of plotting to ruin [Ms. Bias’s] life.”
As Officer Moynihan questioned Ms. Bias, she became
increasingly agitated and visibly angry. Officer Moynihan
asked her to calm down. Instead, she began grabbing at him.
Officer Moynihan stated in his declaration that at this point a
bystander became alarmed. Officer Moynihan concluded that
Ms. Bias’s paranoid and angry behavior could escalate to the
point that she would attempt to injure herself or harm others.
As a result of these observations, Officer Moynihan deter-
mined that she should be evaluated by a mental health profes-
sional as being a danger to herself or others. As he filled out
the application for emergency psychiatric detention, Ms. Bias
attempted to run away.
Ms. Bias’s behavior caused Officer Moynihan to recall that
he had been asked on or about May 23, 2002 to determine
whether Ms. Bias should be detained for medical evaluation
2
In the application for emergency psychiatric detention dated May 23,
2002, Officer Moynihan wrote: “Subj. said that she wanted to take her
own life - subj. wrote in a letter to a judge at the municipal court that she
would kill herself if she lost her civil case.” He also reported: “Upon talk-
ing to subj. she said ‘I will do whatever I want to when the case is done.’
I directly asked the subj. if she felt like hurting herself and she said, ‘I will
do what I want to myself.’ Subj. was depressed and emotional - threat to
herself.”
15340 BIAS v. MOYNIHAN
for being a danger to herself or others because she had stated
she would kill herself if Judge Burr ruled against her. Based
on Ms. Bias’s behavior on May 14, 2003, and his earlier inter-
actions with Ms. Bias regarding her threat to commit suicide,
Officer Moynihan again detained Ms. Bias pursuant to section
5150.3 Ms. Bias was examined at a psychiatric hospital and
released later that same evening.
B
On November 17, 2003, Ms. Bias filed a pro se complaint
against Appellees in Alameda Superior Court. Appellees
removed the case to federal court. On June 4, 2004, Ms. Bias
filed an amended complaint in which she alleged violations of
her federal constitutional rights pursuant to 42 U.S.C. § 1983,
and state law causes of action for assault and battery, false
arrest, illegal imprisonment, intentional infliction of emo-
tional distress, negligence, and racial discrimination pursuant
to California Civil Code section 51.7.
On June 14, 2005, Ms. Bias filed a motion to compel the
deposition testimony of Officer Moynihan. On June 21, 2005,
Appellees filed a motion for summary judgment. Ms. Bias
filed an opposition to the motion for summary judgment with-
out filing an affidavit, a declaration, a deposition, answers to
interrogatories, or responses to requests for admissions show-
ing that there is a genuine issue of material fact for trial. In
her opposition to summary judgment, Ms. Bias objected to the
3
In the application for emergency psychiatric detention dated May 14,
2003, Officer Moynihan wrote: “Subj. flagged me down and wanted to
have people in her apartment arrested for ‘disturbing the meeting.’ Subj.
seemed paranoid and continuously grabbed toward me. Subj. continuously
recited the California constitution and subj. yelled loudly not making
sense.” Officer Moynihan also reported: “Upon talking with subj. she
began yelling saying the police are on the side of the people, ‘they try to
get me.’ Upon telling subj. about commitment she said, ‘You need to be
committed[,] you are the crazy one.’ Subj. grabbed my arm while writing
report - extremely combative.”
BIAS v. MOYNIHAN 15341
admission of three exhibits: the application for emergency
psychiatric detention dated May 14, 2003; her medical
records; and her deposition testimony. On July 19, 20, and 22,
2005, Appellees filed notices of errata concerning two of the
exhibits filed in support of Appellees’ motion for summary
judgment. On July 25 and 26, 2005, Ms. Bias filed two sur-
replies which the district court did not consider because she
had filed them without prior approval from the district court
as required by Northern District of California Civil Local
Rule 7-3(d). On July 26, 2005, the district court overruled Ms.
Bias’s objections to the three exhibits and granted summary
judgment in favor of the Appellees.
Ms. Bias filed a timely notice of appeal.4 We have jurisdic-
tion to review the district court’s final order pursuant to 28
U.S.C. § 1291.
II
Ms. Bias contends that the district court erred in determin-
ing that Officer Moynihan was entitled to summary judgment
based on the doctrine of qualified immunity with respect to
her § 1983 claim. She claims that there are genuine issues of
material facts in dispute regarding whether Officer Moynihan
had probable cause to detain her for a psychiatric evaluation
on both May 23, 2002 and May 14, 2003.
Viewing the evidence in the light most favorable to the
nonmoving party, we “review de novo a district court’s deci-
sion to grant or deny summary judgment.” Prison Legal News
v. Lehman, 397 F.3d 692, 698 (9th Cir. 2005). We also “re-
view a grant or denial of qualified immunity de novo.” Id.To evaluate whether Officer Moynihan has demonstrated
that he is entitled to the defense of qualified immunity with
regard to the § 1983 claim, we must first determine whether
4
Ms. Bias is represented by counsel in this appeal.
15342 BIAS v. MOYNIHAN
there are genuine issues of material facts in dispute. If there
are no disputed material facts, we must then determine if,
based on the undisputed facts, in the light most favorable to
Ms. Bias, a reasonable officer could believe that he had prob-
able cause to detain Ms. Bias. See Saucier v. Katz, 533 U.S.
194, 201 (2001) (“A court required to rule upon the qualified
immunity issue must consider, then, this threshold question:
Taken in the light most favorable to the party asserting the
injury, do the facts alleged show the officer’s conduct violated
a constitutional right?”).
A
Ms. Bias argues that Officer Moynihan was not the officer
who detained her on May 23, 2002. She also argues that her
statement that she would “kill herself” if she lost her case was
hyperbole. Regarding the May 14, 2003 incident, Ms. Bias
maintains that there are genuine issues of material facts in dis-
pute as to whether Officer Moynihan “twisted” what she told
him about people trying to “get her.” She also disputes Offi-
cer Moynihan’s statement regarding when she grabbed him.
Summary judgment is proper where there is no genuine
issue of material fact in dispute and the moving party is enti-
tled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In
opposing summary judgment, a nonmoving party must “go
beyond the pleadings and, by her own affidavits, or by the
‘depositions, answers to interrogatories, and admissions on
file,’ designate ‘specific facts showing that there is a genuine
issue for trial.’ ” Celotex Corp. v. Catrett, 477 U.S. 317, 324
(1986) (citing Fed. R. Civ. P. 56(e)).
[1] To avoid summary judgment, Ms. Bias was required to
present “ ‘significant probative evidence tending to support’ ”
her allegations. Gen. Bus. Sys. v. N. Am. Philips Corp., 699
F.2d 965, 971 (9th Cir. 1983) (quoting First Nat’l Bank of
Ariz. v. Cities Serv. Co., 391 U.S. 253, 290 (1968)). As noted
BIAS v. MOYNIHAN 15343
above, Ms. Bias failed to present any evidence to support her
opposition to the Appellees’ motion for summary judgment.
[2] Ms. Bias concedes that she did not present any evidence
to the district court to support the claims in her amended com-
plaint. Appellant’s Reply Br. at 24-25, 28. She maintains,
however, that as a pro se litigant the district court should have
searched the entire record to discover whether there was any
evidence that supports her claims. We disagree. A district
court does not have a duty to search for evidence that would
create a factual dispute. See Carmen v. S.F. Unified Sch. Dist.,
237 F.3d 1026, 1031 (9th Cir. 2001) (holding that it would be
“unfair” to the district court to require it “to search the entire
record” if a party fails to “disclose where in the record the
evidence for [the factual claims] can be found”). A district
court lacks the power to act as a party’s lawyer, even for pro
se litigants.
The hazards which beset a layman when he seeks to
represent himself are obvious. He who proceeds pro
se with full knowledge and understanding of the
risks does so with no greater rights than a litigant
represented by a lawyer, and the trial court is under
no obligation to become an “advocate” for or to
assist and guide the pro se layman through the trial
thicket.
Jacobsen v. Filler, 790 F.2d 1362, 1365 n.5 (9th Cir. 1986)
(quoting United States v. Pinkey, 548 F.2d 305, 311 (10th Cir.
1977)). Because Ms. Bias failed to present any evidence in
opposition to Appellees’ motion for summary judgment, she
has failed to demonstrate that there are any genuine issues of
material facts in dispute.
[3] Ms. Bias’s argument that her statement “I shall kill
myself” should be construed as hyperbole also lacks merit. In
support of this contention, Ms. Bias relies on cases where the
statements at issue were political statements that implicated
15344 BIAS v. MOYNIHAN
protected speech. See Watts v. United States, 394 U.S. 705,
706-08 (1969) (holding that the statement, “ ‘If they ever
make me carry a rifle the first man I want to get in my sights
is L. B. J.,’ ” was “political hyperbole” when it was made at
a public rally); Roy v. United States, 416 F.2d 874, 875-76
(9th Cir. 1969) (per curiam) (holding that a marine’s state-
ment: “ ‘I hear the President is coming to the base. I am going
to get him’ ” constituted a threat given the context that it was
common knowledge that President of United States was
expected to arrive at the marine base). These cases are not dis-
positive because Ms. Bias’s letter to Judge Burr does not
implicate political speech. Rather, Ms. Bias wrote the letter to
Judge Burr complaining that the counsel she retained was
ineffectively litigating her case. She ended her letter by stat-
ing that if she lost the case, she would kill herself. A reason-
able person would not construe this statement as hyperbole
because nowhere in the letter does she claim that this state-
ment was a joke or a figure of speech. See, e.g., Lovell v.
Poway Unified Sch. Dist., 90 F.3d 367, 372-73 (9th Cir 1996)
(holding that “a reasonable person” would construe a stu-
dent’s statement to a guidance counselor, “ ‘If you don’t give
me this schedule change, I’m going to shoot you,’ ” as a “true
threat” not entitled to First Amendment protection).
B
Ms. Bias contends that based on the undisputed facts in the
record, Officer Moynihan is not entitled to qualified immunity
from liability under § 1983 because no reasonable officer
could have believed that probable cause existed to detain her
on May 23, 2002, or May 14, 2003, for psychiatric evaluation
pursuant to section 5150. “In deciding whether Defendants
are entitled as a matter of law to qualified immunity, we must
accept the facts in the light most favorable to the Plaintiffs
and then determine whether, in light of clearly established
principles governing the conduct in question, the officers
objectively could have believed that their conduct was law-
BIAS v. MOYNIHAN 15345
ful.” Mena v. City of Simi Valley, 226 F.3d 1031, 1036 (9th
Cir. 2000).
In determining whether Officer Moynihan is entitled to
qualified immunity, we must ask two questions: “ ‘(1) Was
the law governing the officer’s conduct clearly established?
(2) Under that law, could a reasonable officer believe that the
conduct was lawful?’ ” Case v. Kitsap County Sheriff’s Dep’t,
249 F.3d 921, 926 (9th Cir. 2001) (quoting Mena, 226 F.3d
at 1036) (emphasis added); see also Anderson v. Creighton,
483 U.S. 635, 636-37 (1987) (holding that a “law enforcement
officer who participates in [conduct] that violates the Fourth
Amendment may [not] be held personally liable . . . if a rea-
sonable officer could have believed that the [conduct] com-
ported with the Fourth Amendment”); Kennedy v. City of
Ridgefield, 439 F.3d 1055, 1061 (9th Cir. 2006) (explaining
that “it may be difficult for a police officer to determine how
to apply the relevant legal doctrine to the particular circum-
stances he or she faces . . . if an officer makes a mistake in
applying the relevant legal doctrine, he or she is not precluded
from claiming qualified immunity so long as the mistake is
reasonable”).
Only the second prong of the qualified immunity analysis
is at issue in this matter. There is no dispute that Ms. Bias’s
constitutional right to be free from detention without probable
cause was clearly established prior to 2002. See Maag v.
Wessler, 960 F.2d 773, 775 (9th Cir. 1991) (“Although there
are few decisions that discuss the fourth amendment standard
in the context of seizure of the mentally ill, all have recog-
nized the proposition that such a seizure is analogous to a
criminal arrest and must therefore be supported by probable
cause.”).
[4] Under section 5150, an officer may detain any person
the officer determines, “as a result of mental disorder, is a
danger to others, or to himself or herself, or gravely disabled.”
Cal. Welf. & Inst. Code § 5150. If such a determination is
15346 BIAS v. MOYNIHAN
made, the officer may place the person at a county-designated
facility for a “72-hour treatment and evaluation.” Id. The offi-
cer’s determination must be based on probable cause. Id.Probable cause exists under section 5150 if facts are known
to the officer “that would lead a person of ordinary care and
prudence to believe, or to entertain a strong suspicion, that the
person detained is mentally disordered and is a danger to him-
self or herself.” People v. Triplett, 192 Cal. Rptr. 537, 540-41
(Cal. Ct. App. 1983). To justify the detention, the officer must
point to “specific and articulable facts which, taken together
with rational inferences from those facts, reasonably warrant
his or her belief or suspicion.” Id. at 541. “Each case must be
decided on the facts and circumstances presented to the offi-
cer at the time of the detention and the officer is justified in
taking into account the past conduct, character, and reputation
of the detainee.” Id. (citation omitted).
[5] The undisputed facts demonstrate that a reasonable offi-
cer would have believed there was probable cause to detain
Ms. Bias on or about May 23, 2002. Ms. Bias wrote a letter
to Judge Burr stating that she would kill herself if the court
ruled against her. When Officer Moynihan asked if she was
going to hurt herself, she responded that she would do “what-
ever” she wanted. Ms. Bias also stated that she feared that a
terrorist was trying to kill her. Officer Moynihan also
observed that Ms. Bias appeared depressed and “did not have
family at home to watch her.” It was not unreasonable for
Officer Moynihan to conclude that Ms. Bias might be a threat
to herself or others due to a mental disorder. Thus, he had
probable cause to detain Ms. Bias under section 5150.
[6] The undisputed facts also show that a reasonable officer
would have believed there was probable cause to detain Ms.
Bias on May 14, 2003. Ms. Bias told Officer Moynihan that
her neighbors were “out to get her.” A neighbor reported to
Officer Moynihan that Ms. Bias was constantly accusing her
“of plotting to ruin [Ms. Bias’s] life.” Ms. Bias became com-
bative and began “grabbing” Officer Moynihan, which caused
BIAS v. MOYNIHAN 15347
a bystander to become alarmed. During this encounter, Offi-
cer Moynihan observed that Ms. Bias’s thoughts were discon-
nected and she was visibly angry and appeared agitated.
Officer Moynihan recalled Ms. Bias’s disturbing behavior on
May 23, 2002. See Triplett, 192 Cal. Rptr. at 541 (explaining
that, in determining whether to detain an individual under sec-
tion 5150, the officer may take into account “the past conduct,
character, and reputation of the detainee”). Based on these
observations and circumstances, it was not unreasonable for
Officer Moynihan to conclude on May 14, 2003, that Ms.
Bias might be a threat to herself or to others due to a mental
disorder. Thus, he had probable cause to detain Ms. Bias
under section 5150.
[7] Because the undisputed facts, taken in the light most
favorable to Ms. Bias, demonstrate that a reasonable officer
could have concluded that detaining Ms. Bias did not violate
her federal constitutional rights, the district court did not err
in granting summary judgment on Ms. Bias’s § 1983 claim in
favor of Officer Moynihan. See, e.g., Case, 249 F.3d at 930(holding that officers were entitled to the defense of qualified
immunity against a § 1983 claim because a reasonable officer
could have believed that arrest was constitutionally permissi-
ble).
III
A
Ms. Bias also alleged Officer Moynihan was liable for
assault and battery, false arrest, illegal imprisonment, inten-
tional infliction of emotional distress, and racial discrimina-
tion under California law. She contends that the district court
erred in granting summary judgment against her regarding
these state law claims.
[8] Ms. Bias’s claims are barred by California Welfare and
Institutions Code section 5278. Section 5278 provides that an
15348 BIAS v. MOYNIHAN
individual authorized to detain a person pursuant to section
5150 “shall not be held either criminally or civilly liable for
exercising this authority in accordance with the law.”5
“[S]ection 5278 means precisely what it says it means, and
that civil liability, whether for battery, [or] for false imprison-
ment . . . is precluded insofar as the detention is ‘in accor-
dance with the law.’ ” See Heater v. Southwood Psychiatric
Ctr., 49 Cal. Rptr. 2d 880, 889 (Cal. Ct. App. 1996).
[9] As discussed above, the undisputed facts demonstrate
that a reasonable officer would have believed there was prob-
able cause to detain Ms. Bias. Officer Moynihan also had
probable cause to detain Ms. Bias on both May 23, 2002, and
May 14, 2003 because she appeared to be a danger to herself
or others due to a mental disorder. See id. at 884, 887-88(holding probable cause under section 5150 where the appel-
lant was in an “agitated,” “volatile” state and entertained
homicidal and suicidal thoughts); Triplett, 192 Cal. Rptr. at
540-41 (holding probable cause under section 5150 where the
appellant was intoxicated and weeping, and there were signs
of a suicide attempt). Therefore, Ms. Bias’s state law claims
also fail. See Heater, 49 Cal. Rptr. 2d at 889 (holding that per-
sons responsible for a section 5150 detention were entitled to
statutory immunity from a medical malpractice action because
they exercised authority in accordance with section 5150 and
the detention was made with probable cause).
The cases Ms. Bias relies on for her argument that there
was no probable cause to detain her are distinguishable. Ms.
Bias has cited cases where there were genuine issues of mate-
rial fact. Here, there are none. See Barlow v. Ground, 943
F.2d 1132, 1135 (9th Cir. 1991) (finding genuine issue of
material fact where police performed warrantless drawing of
5
Section 5278 provides: “Individuals authorized under this part to detain
a person for 72-hour treatment and evaluation pursuant to Article 1 (com-
mencing with Section 5150) . . . shall not be held either criminally or civ-
illy liable for exercising this authority in accordance with the law.”
BIAS v. MOYNIHAN 15349
blood); Hopkins v. City of Sierra Vista, 931 F.2d 524, 528-29
(9th Cir. 1991) (finding genuine issue of material fact where
police performed warrantless search of an apartment). None
of the cases on which Ms. Bias relies concern a section 5150
detention of a suicidal, depressed, and angry individual.
Ms. Bias also cites United States v. Al-Azzawy, 784 F.2d
890 (9th Cir. 1985), for the proposition that probable cause
alone cannot support her warrantless detention because there
were no “ ‘exigent circumstances’ requiring an immediate
involuntary commitment to a mental health institution.”
Appellant’s Opening Br. at 45. Al-Azzawy is not dispositive
because that decision does not involve a detention under sec-
tion 5150. A detention under section 5150 does not require
proof of exigent circumstances. A detention under section
5150 is warranted if there is probable cause that an individual
is a “danger to others, or to himself or herself.” Cal. Welf. &
Inst. Code § 5150; see also Doe v. Gallinot, 657 F.2d 1017,
1022 (9th Cir. 1981) (explaining that in a section 5150 deten-
tion “[t]he initial 72 hours of detention is justified as an emer-
gency treatment. It is recognized that a probable cause hearing
cannot be arranged immediately.”).
B
Ms. Bias alleges that the district court erred in granting
summary judgment in favor of Officer Moynihan and Police
Chief Kitchen based on racial discrimination under California
Civil Code section 51.7. She failed to present any evidence to
support this allegation. See Gen. Bus. Sys., 699 F.2d at 971(“A party opposing summary judgment must present some
‘significant probative evidence tending to support the com-
plaint.’ ”) (citation omitted). Therefore, the district court did
not err in granting summary judgment on this claim.
C
Ms. Bias contends that the district court erred because it did
not address all her claims against Police Chief Kitchen. In lib-
15350 BIAS v. MOYNIHAN
erally construing her amended complaint, we agree that Ms.
Bias alleged a cause of action under § 1983 and a state law
negligence claim against Police Chief Kitchen. See Haines v.
Kerner, 404 U.S. 519, 520 (1972) (per curiam) (explaining
that “allegations of the pro se complaint [are held] to less
stringent standards than formal pleadings drafted by law-
yers”).
[10] The district court should have addressed these claims.
It failed to do so. The error is harmless, however, because Ms.
Bias’s § 1983 and state law negligence claims against Police
Chief Kitchen stem from her detentions on May 23, 2002 and
May 14, 2003. Because Ms. Bias has failed to demonstrate
that Officer Moynihan violated her rights under § 1983 and
California law, her claims against Police Chief Kitchen fail.
See Cal. Welf. & Inst. Code § 5278; City of Los Angeles v.
Heller, 475 U.S. 796, 799 (1986) (per curiam) (explaining
that a jury’s finding that an officer inflicted no constitutional
injury on an individual removed any basis for liability against
individual members of the police commission).
[11] For similar reasons, Ms. Bias’s § 1983 claim against
the City of San Leandro also lacks merit because her rights to
be free from an unlawful detention were not violated. See
Heller, 475 U.S. at 799 (explaining that if an officer has not
violated an individual’s constitutional rights, “it is inconceiv-
able that [the city] could be liable”); see also Monell v. Dep’t
of Soc. Serv., 436 U.S. 658, 694 (1978) (holding that munici-
palities can only be liable when a constitutional deprivation
arises from the “execution of a government’s policy or cus-
tom”).
D
[12] Ms. Bias also argues that the district court should have
provided her with notice of summary judgment rules because
she was a pro se litigant. We review questions of law de novo.
Harman v. Apfel, 211 F.3d 1172, 1175 (9th Cir. 2000). The
BIAS v. MOYNIHAN 15351
district court was not required to provide her with notice of
summary judgment rules because Ms. Bias is a pro se non-
prisoner litigant. See Jacobsen, 790 F.2d at 1365-67 (holding
that a district court is not required to give notice of summary
judgment rules to pro se non-prisoners).
IV
Ms. Bias contends that the district court erred in ruling on
the Appellees’ motion for summary judgment before ruling on
her motion to compel the deposition testimony of Officer
Moynihan. Discovery rulings are reviewed for abuse of dis-
cretion. Margolis v. Ryan, 140 F.3d 850, 853 (9th Cir. 1998).
“However, ‘if the trial judge fails to address [a motion to con-
tinue discovery] before granting summary judgment, we
review this omission de novo.’ ” Id. (citation omitted).
Ms. Bias did not argue before the district court that it
should have ruled on her motion to compel before ruling on
the summary judgment motion. Ms. Bias “did not show
exceptional circumstances explaining her failure to do so.”
Brown v. Gen. Tel. Co. of Cal., 108 F.3d 208, 210 n.1 (9th
Cir. 1997). Thus, she has waived her right to present this issue
for the first time on appeal. See id. (holding that a pro se
plaintiff could not raise a new issue on appeal where she
failed to raise the issue before district court).
V
Ms. Bias also claims that the district court abused its dis-
cretion in allowing the Appellees to file notices of errata with-
out considering Ms. Bias’s sur-replies to the motion for
summary judgment. In violation of local rules, Ms. Bias filed
two untimely sur-replies without prior approval after the dis-
trict court had already issued its order on the motion for sum-
mary judgment. See N.D. Cal. Civ. R. 7-3(d) (providing that
once a reply to a motion for summary judgment is filed no
additional papers “may be filed without prior Court approv-
15352 BIAS v. MOYNIHAN
al”); see also Carter v. Comm’r, 784 F.2d 1006, 1008 (9th
Cir. 1986) (explaining that a pro se litigant must “abide by the
rules of the court in which he litigates”).
A district court’s compliance with local rules is reviewed
for “an abuse of discretion.” Hinton v. Pac. Enters., 5 F.3d
391, 395 (9th Cir. 1993). Broad deference is given to a district
court’s interpretation of its local rules. See Christian v. Mat-
tel, Inc., 286 F.3d 1118, 1129 (9th Cir. 2002) (explaining that
the “district court has considerable latitude in managing the
parties’ motion practice and enforcing local rules”).
[13] The Appellees filed their notices of errata before the
district court issued its order granting summary judgment.
The notices did not raise additional substantive issues. They
solely addressed clerical errors. Notices of errata to clarify
clerical errors are substantively different from attempts to file
supplemental briefs unauthorized by local rules. The district
court did not abuse its discretion in failing to consider Ms.
Bias’s sur-replies.
VI
Ms. Bias contends that, in granting summary judgment in
favor of the Appellees, the district court made two errors in
its evidentiary rulings. Evidentiary rulings made in the con-
text of summary judgment motions are reviewed for abuse of
discretion and “can only be reversed if [they were] both ‘man-
ifestly erroneous and prejudicial.’ ” Ballen v. City of Red-
mond, 466 F.3d 736, 745 (9th Cir. 2006) (citation omitted).
A
[14] Ms. Bias argues that the district court should have
excluded four of the Appellees’ exhibits because they were
not authenticated. As to three of the exhibits,6 Ms. Bias did
6
These exhibits include: (1) the May 23, 2002 application for emer-
gency psychiatric detention; (2) Ms. Bias’s letter to Judge Burr; and (3)
the San Leandro Police Department training bulletin.
BIAS v. MOYNIHAN 15353
not object to their admission. Thus, she waived the right to do
so for the first time on appeal. See Pfingston v. Ronan Eng’g
Co., 284 F.3d 999, 1003-04 (9th Cir. 2002) (explaining that
a party must object in the district court to preserve an eviden-
tiary challenge in summary judgment proceedings). Ms. Bias
is correct that the fourth exhibit, the May 14, 2003 application
for emergency psychiatric detention, was not properly authen-
ticated, but such error was harmless.
Rule 56(e) of the Federal Rules of Civil Procedure requires
that a proper foundation be laid for evidence considered on
summary judgment. The documents must be authenticated
and attached to a declaration wherein the declarant is the
“ ‘person through whom the exhibits could be admitted into
evidence.’ ” Hal Roach Studios, Inc. v. Richard Feiner & Co.,
896 F.2d 1542, 1551 (9th Cir. 1990) (quoting Canada v.
Blain’s Helicopters, Inc., 831 F.2d 920, 925 (9th Cir. 1987)).
In Hal Roach Studios, a party’s attorney attached a document
to his declaration that lacked his personal knowledge to the
contents to authenticate it. Id. We held in that matter that the
document was “not per se inadmissible” because another
declarant who had also filed a declaration was a “competent
witness with personal knowledge [who] could authenticate it.”
Id. We concluded that the error in considering the improperly
authenticated exhibit was harmless because “reversing the
district court and remanding on this technicality would be
pointless.” Id. at 1551 n.16. Likewise, the exhibit here should
have been authenticated by Officer Moynihan rather than
through his attorney’s declaration. It would be a pointless
technicality, however, to remand so that Officer Moynihan
could attach it to his declaration.
B
Ms. Bias contends that the district court erred in overruling
her objection to the May 14, 2003 emergency psychiatric
application for detention, identified as Exhibit E to Appellees’
motion for summary judgment, because there are different
15354 BIAS v. MOYNIHAN
versions of the exhibit.7 While the versions are different, they
provide, in material respect, the same information regarding
Officer Moynihan’s observations and conclusions. The appli-
cations are carbon copies given to different entities, including
the police station and the hospital. The only differences
between the copies consist of a fax line, a file number, Ms.
Bias’s handwritten notes on her version, and blocked-out
information concerning the name of Ms. Bias’s neighbor on
the version produced to the hospital. Because such differences
are immaterial, the district court did not abuse its discretion
in relying on the version of the May 14, 2003 application for
emergency psychiatric detention identified as Exhibit E to
Appellees’ motion for summary judgment.
VII
[15] On appeal, the Appellees request that we take judicial
notice of five prior cases in which Ms. Bias was a pro se liti-
gant to counter her argument that she deserves special treat-
ment because of her pro se status. This request is granted.
“[W]e ‘may take notice of proceedings in other courts, both
within and without the federal judicial system, if those pro-
ceedings have a direct relation to matters at issue.’ ” Bennett
v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)
(alterations in original) (quoting United States ex rel. Robin-
son Rancheria Citizens Council v. Borneo, 971 F.2d 244, 248
(9th Cir.1992)).
7
In her opposition to summary judgment, Ms. Bias objected to Exhibit
E arguing that it was “ ‘different from the one that [Officer Moynihan]
presented [sic] on 6-13-05 at Deposition. Fraud committed.’ ” Appellant’s
Opening Br. at 24. Ms. Bias attached two versions of the May 14, 2003
application for emergency psychiatric detention to her opposition. One of
Ms. Bias’s versions was the same as Exhibit E, but for Ms. Bias’s own
handwriting at the top stating, “Exhibit: Moynihan’s application to San
Leandro hospital to detain Alice Bias.” The other version that Ms. Bias
submitted was the copy given to the hospital.
BIAS v. MOYNIHAN 15355
The Appellees’ request for judicial notice of portions of
Ms. Bias’s deposition, however, is denied. Rule 201(b) of the
Federal Rules of Evidence provides that: “A judicially noticed
fact must be one not subject to reasonable dispute in that it is
either (1) generally known within the territorial jurisdiction of
the trial court or (2) capable of accurate and ready determina-
tion by resort to sources whose accuracy cannot reasonably be
questioned.” The accuracy of the deposition excerpts, which
were never before the district court, could be subject to rea-
sonable dispute.
AFFIRMED.