FILED
NOT FOR PUBLICATION JUL 22 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RICHARD MADDOX; et al., No. 09-15321
Plaintiffs - Appellants, D.C. No. 2:06-cv-00072-GEB-
EFB
v.
COUNTY OF SACRAMENTO; et al., MEMORANDUM *
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, District Judge, Presiding
Argued and Submitted June 14, 2010
San Francisco, California
Before: RYMER and FISHER, Circuit Judges, and PALLMEYER, District
Judge.**
Tien Hong Vo, Thong Vo, Ngau Thi Nguyen, Sonia Luong (collectively, the
Vos), Richard Maddox, and Karen Alexandrou appeal the district court’s grant of
summary judgment for the County of Sacramento and several employees of the
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Rebecca R. Pallmeyer, United States District Judge for
the Northern District of Illinois, sitting by designation.
County’s District Attorney’s (DA) office. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm.
Maddox and Alexandrou lack standing for their employment claims because
their injuries are not “fairly traceable” to the actions of any named defendant. See
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). While Maddox and
Alexandrou were reassigned in order to facilitate a better working relationship with
the DA’s office, none of the named defendants had authority over employment
decisions within the Code Enforcement Division. See Pritikin v. Dep’t. of Energy,
254 F.3d 791, 798 (9th Cir. 2001) (holding that plaintiffs did not have standing
because they did not sue the “party with the clear ability to act”).
Contrary to the Vos’ submission, the district court did not determine that
they were barred from bringing their California Fair Employment and Housing Act
(FEHA) claim because they did not first file a government tort claim pursuant to
California Government Code § 945.4. Rather, the court dismissed the California
Unruh Civil Rights Act claims, California Civil Code § 53 claims, and twelve state
tort claims for failure to file a government tort claim – but not the FEHA claim.
Nor did the district court determine that the prosecutors were entitled to
absolute immunity with regard to the investigation of the Vos’ property, as the Vos
contend; the court resolved those claims on other grounds. To the degree the Vos
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argue that absolute immunity does not extend to Natalia Luna’s decision to initiate
criminal proceedings against the Vos, we disagree. The initiation of a prosecution
is a decision that is “intimately associated with the judicial phase of the criminal
process,” and Luna is absolutely immune from liability arising out of that decision.
Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976).
The Vos’ generalized objections to inspecting the property on October 27 do
not raise a genuine issue of material fact in light of specific declarations by Captain
Cooper, Lieutenant To, and Inspector Weikel that Nguyen consented to inspection
of the property. See Fed. R. Civ. P. 56(e)(2) (“[A]n opposing party may not rely
merely on allegations or denials . . . ; rather, its response must . . . set out specific
facts showing a genuine issue for trial.”); 389 Orange St. Partners v. Arnold, 179
F.3d 656, 664 (9th Cir. 1999) (holding that “vague claims” cannot generate a
factual dispute “adequate to defeat summary judgment”). Neither does the fact that
Alexandrou did not see Cooper and To speaking with Nguyen and Thong show
that they did not actually talk.
The Vos proffered no evidence that they were treated differently from
similarly situated property owners. Maddox’s conclusory opinion is insufficient to
create a triable issue on whether the District Attorney’s office targeted group
homes used by mentally disabled persons. Accordingly, they cannot make out an
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equal protection claim for selective prosecution. See United States v. Lee, 786
F.2d 951, 957 (9th Cir. 1986) (“To establish impermissible selective prosecution, a
defendant must show that others similarly situated have not been prosecuted and
that prosecution is based on an impermissible motive.”).
Finally, the Vos claim summary judgment was inappropriate because they
lacked the opportunity to complete discovery. However, the point is not preserved
as they failed to object to the magistrate judge’s order denying their motion to
compel discovery. See Fed. R. Civ. P. 72(a) (“A party may not assign as error a
defect in the order not timely objected to.”); Simpson v. Lear Astronics Corp., 77
F.3d 1170, 1173-74 (9th Cir. 1996). Nor did they move for a continuance under
Federal Rule of Civil Procedure 56(f), or suggest in their opposition to summary
judgment that more discovery was necessary. In these circumstances we see no
abuse of discretion. Cf. Cal. Union Ins. Co. v. Am. Diversified Sav. Bank, 914 F.2d
1271, 1278 (9th Cir. 1990) (“The district court does not abuse its discretion by
denying further discovery if the movant has failed diligently to pursue discovery in
the past, or if the movant fails to show how the information sought would preclude
summary judgment.” (internal citations omitted)).
AFFIRMED.
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