Tommy Allen v. County of Fresno

FILED
NOT FOR PUBLICATION JUL 27 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
TOMMY ALLEN; BROOKE ALLEN, a No. 11-15766
minor suing through her legal
represenative, Tommy Allen, D.C. No. 1:06-cv-01469-AWI-
SMS
Plaintiffs - Appellants,
v. MEMORANDUM *
COUNTY OF FRESNO; CHRISTIAN
CURTICE; JARED WILLIAMSON,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, Chief District Judge, Presiding
Submitted July 19, 2012 **
San Francisco, California
Before: PAEZ and BYBEE, Circuit Judges, and VANCE, Chief District Judge.***
*
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).
***
The Honorable Sarah S. Vance, Chief District Judge for the U.S.
District Court for the Eastern District of Louisiana, sitting by designation.
Section 1983 plaintiffs Tommy and Brooke Allen (collectively, “the
Allens”) appeal the district court’s grant of summary judgment in favor of
defendant Christian Curtice, deputy sheriff for Fresno County. The Allens argue
that Deputy Curtice’s decision to arrest them was based on faulty information
provided by unreliable student informants and that a genuine issue of material fact
exists as to whether Deputy Curtice had probable cause to arrest them. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
The Allens claim that there is a triable issue as to whether Deputy Curtice
had probable cause to arrest them. To establish probable cause, the police “must
only show that, under the totality of the circumstances, a prudent person would
have concluded that there was a fair probability that the suspect had committed a
crime.” Hart v. Parks, 450 F.3d 1059, 1066 (9th Cir. 2006) (alteration and internal
quotation marks omitted). The police do not need to show that probable cause
existed to arrest for the crime eventually charged; rather, as long as “the facts
known to the arresting officer at the time of the arrest” supported probable cause
for any offense, the arrest is proper. Devenpeck v. Alford, 543 U.S. 146, 152
(2004). The disputed facts identified by the Allens do not, independently or
collectively, create a triable issue of fact as to the existence of probable cause.
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The Allens contend that summary judgment was inappropriate because (1)
another student, Lomeli, rather than Brooke, supplied two students with marijuana,
and (2) Lomeli was in possession of Brooke’s backpack when the marijuana was
found. Neither school administrator Christopherson nor Deputy Curtice, however,
suspected Brooke was involved in criminal activity based on the sale of marijuana
to the unidentified students the morning of Brooke’s arrest. Instead, during his
investigation, Deputy Curtice learned that fellow students Lomeli, Ortiz, and
Maxey all accused Brooke of bringing marijuana onto the campus, that these
students had seen Brooke with marijuana in her possession, and that Brooke had
told at least one of the students that her father wanted her to sell the marijuana.
The Allens also contend that Christopherson’s “unusual interview protocol”
allowed Lomeli, Ortiz, and Maxey to “confer” before speaking with Deputy
Curtice and “reconcile [their] statements.” On summary judgment, however, the
court need only “view the evidence in light most favorable to the nonmoving party,
asking whether there are any genuine issues of material fact,” Crowley v. Nev. ex
rel. Nev. Sec’y of State, 678 F.3d 730, 733 (9th Cir. 2012); it need not assume any
possible inference from those facts, see Nelson v. Pima Cmty. Coll., 83 F.3d 1075,
1081–82 (9th Cir. 1996). The court need not credit the Allens’ speculation that the
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students colluded. See id. (“[M]ere allegation and speculation do not create a
factual dispute for purposes of summary judgment.”).
Finally, although the Allens have identified certain peculiarities in the
students’ reports and circumstances that may suggest inconsistencies, these
peculiarities and inconsistencies do not constitute “significant probative evidence
tending to support” the Allens’ allegations sufficient to survive summary
judgment. Gen. Bus. Sys. v. N. Am. Philips Corp., 699 F.2d 965, 971 (9th Cir.
1983) (internal quotation marks omitted). Even with these peculiarities and
inconsistencies, the reports were sufficient to give Deputy Curtice probable cause
to arrest.
AFFIRMED.
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