Natalie Reighard v. Wayne Longo

FILED
NOT FOR PUBLICATION
SEP 21 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NATALIE JEAN REIGHARD, No. 12-35161
Plaintiff-Appellant, D.C. No. 2:09-cv-00350-JLQ
v.
MEMORANDUM*
WAYNE LONGO; CITY OF COEUR
D’ALENE; COEUR D’ALENE
POLICE DEPARTMENT; BRIAN
BRUMBAUGH; JEFF WALTHER;
JARED RENEAU, Officer; JOHN
DOE, 1-10; JANE DOE, 1-10,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Idaho
Justin L. Quackenbush, District Judge, Presiding
Submitted September 19, 2016**
Before: CLIFTON, N.R. SMITH, and CHRISTEN, Circuit Judges.
*
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).
Plaintiff Natalie Reighard appeals pro se from the entry of judgment against
her on a 42 U.S.C. § 1983 claim that Officer Jared Reneau of the City of Coeur
D’Alene groped her during a search incident to arrest. The case went to trial and at
the conclusion of evidence Reighard filed a motion for judgment as a matter of law
under Rule 50(a) of the Federal Rules of Civil Procedure. The district court denied
the motion, concluding there was a factual dispute for the jury to resolve. Reighard
subsequently filed a Rule 50(b) motion for judgment notwithstanding the verdict
and for a new trial. In her notice of appeal, Reighard limited her appeal to the
denial of the Rule 50(a) motion. We affirm.
Because Reighard did not appeal the district court’s denial of her Rule 50(b)
motion we are limited to examining whether or not the district court erred in
denying her pre-trial Rule 50(a) motion. As the Supreme Court has explained,
under Rule 50(a), “while a district court is permitted to enter judgment as a matter
of law when it concludes the evidence is legally insufficient, it is not required to do
so.” Unitherm Food Systems v. Swift-Eckrich, Inc., 546 U.S. 394, 405 (2006).
Because of the existence of such discretion vested in the trial court, the “denial of
[a party’s] preverdict motion cannot form the basis of [an] appeal.” Id. at 406. The
denial of a Rule 50(a) motion is “not error . . . [i]t [is] merely an exercise of the
District Court’s discretion, in accordance with the text of the Rule and the accepted
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practice of permitting the jury to make an initial judgment about the sufficiency of
the evidence.” Id. Accordingly, we affirm the district court’s denial of Reighard’s
Rule 50(a) motion.
Although it is not entirely clear that Reighard has appealed the district
court’s denial of her post-trial Rule 50(b) motion, assuming that she has, the
district court did not err in denying that motion, either.1 Reighard does not dispute
the validity of her DUI arrest or the reasonableness of the exterior search of her
person. Her trial theory was instead that the search became unreasonable when
Officer Reneau used his ungloved, non-searching hand, which was behind her
back, to reach under her dress and fondle her bare buttocks and vagina. Officer
Reneau testified that he wore gloves and conducted a search in accordance with
protocols designed to find weapons. He explained that he needed to reach under
her dress, but denied knowing that Reighard wore no undergarments. Officer
Reneau also testified that, if any contact with Reighard's bare buttocks or vagina
occurred, it was not intentional. This case involved conflicting testimony on basic
1
Reighard has not provided the court “a transcript of all evidence relevant”
to the jury’s finding that Officer Reneau did not violate her constitutional rights.
Fed. R. App. P. 10(b)(2). Although we discuss the merits of her appeal, her failure
to comply with this obligation would be sufficient reason to dismiss her appeal.
See Syncom Capital Corp. v. Wade, 924 F.2d 167, 169 (9th Cir. 1991) (per
curiam).
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elements of the claim. Viewing the evidence in the light most favorable to Officer
Reneau, as we must, a reasonable jury could have found that the search was
reasonable under the Fourth Amendment.
Finally, although Officer Reneau admitted to touching Reighard’s bare thigh
to search for concealed weapons, we are unpersuaded that this fact alone made the
search unreasonable. This court has held that searches as intrusive as strip and
body cavity searches may sometimes be reasonable under the Fourth Amendment.
See Ward v. Cty. of San Diego, 791 F.2d 1329, 1332–33 (9th Cir. 1986); Fuller v.
M.G. Jewelry, 950 F.2d 1437, 1446 (9th Cir. 1991).
AFFIRMED.
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