Avalos v. Baca

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

J. AVALOS, individually and as 
representative of the class defined,
No. 07-56511
Plaintiff-Appellant,
v.  D.C. No.
CV-05-07602-DDP
LEROY BACA; LARRY WALDIE;
OPINION
SHAUN MATHERS,
Defendants-Appellees.

Appeal from the United States District Court
for the Central District of California
Dean D. Pregerson, District Judge, Presiding

Argued and Submitted
August 7, 2009—Pasadena, California

Filed February 24, 2010

Before: Kim McLane Wardlaw and Consuelo M. Callahan,
Circuit Judges, and Ralph R. Beistline,*
Chief District Judge.

Opinion by Judge Callahan

*The Honorable Ralph R. Beistline, United States District Judge for the
District of Alaska, sitting by designation.

2927
2930 AVALOS v. BACA

COUNSEL

Marion R. Yagman (argued) and Joseph Reichmann of Yag-
man & Yagman & Reichman of Venice Beach, California, for
the plaintiff-appellant.

David D. Lawrence, Michael D. Allen, and Justin W. Clark
(argued) of Franscell, Strickland, Roberts & Lawrence, O.C.,
of Glendale, California, for the defendants-appellees.

OPINION

CALLAHAN, Circuit Judge:

J. Avalos was over-detained by the Los Angeles Sheriff’s
Department (“LASD”). He filed this action against officers of
the LASD in their official and individual capacities.1 He
asserts claims pursuant to 42 U.S.C. § 1983 for alleged viola-
tions of his rights under the Fourth and Fourteenth Amend-
ment based on his over-detention and for defendants’ efforts
to procure an involuntary waiver of his civil rights claim

1
The first amended complaint included as defendants six Los Angeles
County Supervisors. The district court dismissed these defendants, and
Avalos does not challenge their dismissal on appeal. The remaining named
defendants are Sheriff Leroy Baca, Undersheriff Larry Waldie, and Lieu-
tenant Shaun Mathers.
 AVALOS v. BACA 2931
based on his over-detention. Avalos also alleges claims of
conspiracy and violations of the Racketeer Influenced and
Corrupt Organizations Act, 18 U.S.C. § 1962(a)-(c)
(“RICO”). The district court granted summary judgment in
favor of defendants. We conclude that (1) plaintiff has failed
to show an unconstitutional custom, policy or practice of
over-detention, (2) there is no actionable claim under § 1983
for procuring a coercive or involuntary waiver of a civil rights
claim, (3) the district court properly granted summary judg-
ment for defendants on plaintiff’s conspiracy claims, and (4)
plaintiff has failed to present sufficient evidence of a RICO
violation or any harm to his business or property from the
alleged act of racketeering. Accordingly, the district court’s
grant of summary judgment in favor of defendants is
affirmed.

I

On June 22, 2004, Avalos was arrested on an Orange
County warrant for domestic abuse and transported to the
LASD’s jail. LASD had the responsibility to notify the
Orange County Sheriff’s Department of Avalos’s arrest and
detention. See Cal. Penal Code § 821. LASD failed to notify
the Orange County Sheriff’s Department that Avalos was
available to be picked up. On September 4, 2004 — over two
months later — LASD realized that Avalos had been over-
detained and should be released.

On that day, Avalos was allowed to change into his per-
sonal clothes and was brought into an empty room. After he
entered the room, Deputy Sheriff Wilson came in wearing
street clothing and a sheriff’s badge, and sat down across a
desk from Avalos. According to Avalos, Wilson took out
some papers. Avalos does not speak English, and claims that
when he told Wilson he did not understand what was in the
papers, Wilson only showed him where to sign. Avalos signed
the papers, but asserts that he did not understand that the
2932 AVALOS v. BACA
papers were an offer to settle his claim for over-detention for
$500.

According to the defendants, when Wilson realized that
Avalos did not speak English, he enlisted Deputy Yvonne
Zarate to translate. Deputy Zarate stated that she spoke to
Avalos, learned that he earned $500 a week in his janitorial
job, and discussed the waiver of his claim for over-detention
in exchange for $500. Avalos was released later on September
4, 2004, and on September 9, 2004, two LASD officers, in an
unmarked car and wearing street clothes, went to visit Avalos
at his home. Avalos alleges that they telephoned his home,
spoke to his 13-year-old daughter, and told her that Avalos
should come outside. Avalos went outside alone. He states
that neither of the officers, Wilson and Deputy Lam, spoke
Spanish, but they told him to sign a “Release and Settlement
Agreement” and gave him a check for $500. Avalos alleges
that the officers did not explain the documents to him and he
did not understand what he was signing. Avalos signed the
documents, accepted the check, and subsequently cashed the
check.

Avalos’s First Amended Complaint (“FAC”) was filed on
April 3, 2006, at a time when several other related “over-
detention” cases were pending before the district court judge.
See Mortimer v. Baca, 478 F. Supp. 2d 1117 (C.D. Cal.
2007), aff’d Mortimer v. Baca, ___ F.3d ___ (9th Cir. Feb. 5,
2009) (“Mortimer II”). The FAC alleges four claims for relief.
In his first claim, Avalos alleges that defendants violated his
Fourth and Fourteenth Amendment rights by causing him to
be over-detained and by causing him to involuntarily waive
his civil rights claim against defendants. Avalos’s second
claim alleges that defendants engaged in a conspiracy to cause
Avalos’s over-detention and his involuntary waiver of his
over-detention claim. In claims three and four, Avalos alleges
that defendants conspired to and did engage in a pattern of
racketeering activity in violation of RICO. Avalos also sought
to represent a class of more than a hundred individuals shar-
 AVALOS v. BACA 2933
ing the following characteristics: (1) they were over-detained
by the LASD; (2) their over-detentions were recognized by
LASD officials; and (3) they were “fraudulently, oppres-
sively, extortionately, or with threats [ ] duped into compro-
mising their monetary claims for sums far less than those
claims are worth.”2

In September 2006, Avalos moved for partial summary
adjudication. On October 16, 2006, the district court granted
plaintiff’s motion and determined that he had been over-
detained and that the defendants were potentially liable. In
March 2007, the defendants moved for summary judgment.
On August 24, 2007, the district court granted defendants’
motion for summary judgment in its entirety. Avalos v. Baca,
517 F. Supp. 2d 1156 (C.D. Cal. 2007). Avalos filed a timely
notice of appeal from that order.

II

We review the district court’s grant of summary judgment
de novo and “must determine, viewing the evidence in the
light most favorable to the non-moving party, whether there
are any genuine issues of material fact and whether the district
court correctly applied the relevant substantive law.” Guegara
v. Allstate Ins. Co., 237 F.3d 987, 992 (9th Cir. 2001). The
moving party has “the burden of showing the absence of a
genuine issue as to any material fact, and for these purposes
the material lodged must be viewed in the light most favor-
able to the opposing party.” Adickes v. S. H. Kress & Co., 398
U.S. 144, 157 (1970).

III

Through this lens, we first consider plaintiff’s challenges to
the district court’s grant of summary judgment on his over-
2
Because Avalos did not move for class certification, the district court
treated the FAC as an individual suit against the defendants.
2934 AVALOS v. BACA
detention claim and on his involuntary waiver claim. We then
explain that the failure of plaintiff’s substantive claims defeats
his claims of conspiracy. Finally, we address plaintiff’s chal-
lenges to the district court’s grant of summary judgment on
his RICO claims.

A. The district court properly granted summary judg-
ment for defendants on plaintiff’s claims for over-
detention.

There is no question that Avalos was over-detained. How-
ever, in order to recover from the defendants under 42 U.S.C.
§ 1983, Avalos must show either that they personally partici-
pated in his over-detention or that it was the result of a pattern
or custom on their part. Although Avalos sued the defendants
in both their official and individual capacities, and the district
court granted defendants summary judgment in both capaci-
ties, we need only address their official capacity liability.3

[1] Pursuant to Monell v. Department of Social Services,
436 U.S. 658, 694 (1978), a public entity defendant sued in
his official capacity cannot be held liable under a theory of
respondeat superior; rather, a defendant must act as a law-
3
The district court noted that individual liability under § 1983 arises
only upon a showing of personal participation by the defendant, citing
Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) and Fayle v. Stapley,
607 F.2d 858, 862 (9th Cir. 1979). The court noted that Avalos had pre-
sented no evidence that any of the defendants had any direct contact with
him or had any actual knowledge of his incarceration. Avalos, 517 F.
Supp. at 1168.
Appellant has abandoned any challenge to the grant of summary judg-
ment against the defendants in their individual capacity by failing to raise
the issue in his briefs. See Fed. R. App. P. 29(a)(9)(A); Rattlesnake Coali-
tion v. U.S. E.P.A. 509 F.3d 1095, 1100 (9th Cir. 2007) (commenting that
“[i]ssues raised in an opening brief but not supported by argument are con-
sidered abandoned” and reiterating that we “will not ordinarily consider
matters on appeal that are not specifically and distinctly raised and argued
in the appellant’s opening brief” (citation omitted)).
 AVALOS v. BACA 2935
maker or one “whose edicts may fairly be said to represent
official policy.” Id. at 693. The district court explained plain-
tiff’s resulting burden as follows:

There are three ways to meet the policy, practice, or
custom requirement for municipal liability under
§ 1983: (1) the plaintiff may prove that a public
entity employee committed the alleged constitutional
violation pursuant to a formal policy or a longstand-
ing practice or custom, which constitutes the stan-
dard operating procedure of the local government
entity; (2) the plaintiff may establish that the individ-
ual who committed the constitutional tort was an
official with “final policy-making authority” and that
the challenged action itself thus constituted an act of
official government policy; or (3) the plaintiff may
prove that an official with final policy-making
authority ratified a subordinate’s unconstitutional
decision or action . . . . An unconstitutional policy
need not be formal or written to create municipal lia-
bility under § 1983; however, it must be so perma-
nent and well settled as to constitute a custom or
usage with the force of law. Adickes v. S.H. Kress &
Co., 398 U.S. 144, 167-68, . . . (1970). Furthermore,
“[p]roof of a single incident of unconstitutional
activity is not sufficient to impose liability under
Monell, unless proof of the incident includes proof
that it was caused by an existing, unconstitutional
municipal policy, which policy can be attributed to
a municipal policy maker.” Oklahoma City v. Tuttle,
471 U.S. 808, 823-24, . . . (1985).

Avalos, 517 F. Supp. 2d at 1162.

Defendants, in moving for summary judgment, asserted
that Avalos had failed to show that they had a policy, practice
or custom of over-detaining inmates. They argued that the dis-
trict court’s grant of summary judgment in Mortimer, 478 F.
2936 AVALOS v. BACA
Supp. 2d. 1171, foreclosed plaintiff’s over-detention claim
because it held that LASD did not maintain a policy, practice
or custom of over-detaining inmates. Avalos, 517 F. Supp. 2d
at 1163.

The district court agreed that the existence of a policy or
practice of over-detention was raised in Mortimer, and that
Avalos “may only defeat summary judgment if he can distin-
guish this case from Mortimer.”4 Id. The district court deter-
mined that Avalos had failed to do so. First, it found that the
evidence proffered by Avalos did not distinguish his case
from Mortimer.5 Second, the court noted that the number of
incidents of over-detention had been substantially reduced
over the years. Id. at 1164-65. Third, the court observed that
any inference of an unconstitutional policy or practice was
weakened further by the steps taken by LASD to reduce the
number of over-detentions.6 Id. at 1165-66. The district court
4
The same attorneys represented Avalos and Mortimer both in the dis-
trict court and on appeal before the Ninth Circuit.
5
The district court explained:
The LASD processes tens of thousands of detainees every year.
See Mortimer, 478 F. Supp. 2d at 1179. Between November 2002
and May 2005, the LASD released nearly 51,000 persons,
roughly 20,000 persons per year. Id. Neither party has submitted
evidence in this case as to the total releases applicable to the per-
tinent period. However, if the Court applies the estimated number
of annual over-detentions to the estimated number of annual
releases, it appears that roughly 0.4% of persons released by
LASD were over-detained, a percentage not readily distinguish-
able from the approximately 0.1% of over-detentions apparent in
Mortimer. Furthermore, plaintiff has provided no analysis in their
papers as to why minimal numerical differences between Morti-
mer and this case are material or amount to an unconstitutional
custom, policy, or practice on the part of defendants. Id. . . . The
numbers themselves do not bespeak unreasonableness.
Avalos, 517 F. Supp. 2d at 1164 (footnote omitted).
6
In Mortimer II, ___ F.3d ___, (slip op. at 2091-92) we noted that these
steps
 AVALOS v. BACA 2937
concluded that “plaintiff has not met his burden to ‘do more
than simply show that there is some metaphysical doubt as to
the material facts.’ ” Id. at 1166 (quoting Matsushita Elec.
Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586
(1986)).

[2] We agree that Avalos has failed to present evidence
from which a reasonable jury could find that defendants had
a policy, practice or custom of over-detaining inmates. Avalos
seeks to distinguish Mortimer on the ground that it concerned
a different class of over-detained inmates. In addition, Avalos
argues that the existence of a custom or policy does not
depend on a proportionality analysis, but “on the traditional
legal principles that define a custom, to wit, whether happen-
ings are sufficiently persistent that one may say a custom
exists.” He argues that a deficient training program in the face
of continuing constitutional violations may give rise to a
claim of deliberate indifference. Whatever the merit of such
arguments in the abstract, here, they are overwhelmed by the
evidence of the steps taken by LASD to reduce the number of
over-detentions and the effectiveness of those steps. Here, as

included the “In-Court Release” program, which began in 2001.
This program allows inmates to be released at the courthouse
immediately following a judge’s release order without returning
to the jail, provided that a prompt check of the database does not
reveal any other warrants or holds. Another measure was the
“Greenband” program in which inmates who could not be
released at the courthouse due to a need to give a DNA sample
or have a medical examination were given a green wristband and
returned to the Inmate Reception Center (“IRC”) only briefly to
perform the procedure before release. A third measure was the
Early Release Program, which begins the process for releasing
inmates 72 hours before the expiration of their sentences, and
often resulted in their early release.
In addition, the LASD created a database called the “Over-Detention and
Erroneous Release” tracking system (“ODER”) to keep track of recorded
potential over-detentions. Mortimer II ___ F.3d at ___ (slip op. at 2092).
2938 AVALOS v. BACA
in Mortimer II, “given the LASD’s many affirmative efforts
to remedy the problem, the evidence in the record will not
support a finding of a policy of deliberate indifference.” ___
F.3d at ___ (slip op. at 2098). Accordingly, the district court
properly granted summary judgment against Avalos on his
claim of over-detention.

B. Avalos cannot state a cognizable claim for his invol-
untary waiver.

Despite the reduced number of over-detentions by the
LASD, Avalos alleges that “rather than implementing a pro-
cedure designed to prevent or detect lengthy over-detentions,
the defendants instead have utilized a coercive in-custody set-
tlement program that concentrates on forced, coercive in-
custody settlements of over-detention claims for paltry sums
of money.” He cites Jones v. Tuber, 648 F.2d 1201 (9th Cir.
1981), in support of his contention, noting that the methods
employed there are similar to the LASD’s practices and that
our determination in that case that the waiver signed by the
detainee was not voluntary is applicable to this case.

Avalos alleges that he did not understand what he was
asked to sign and that the procedure followed in his case was
a deliberate policy designed to result in settlement that was
“neither fair nor reasonable, as required by written Jail poli-
cy.” He argues that this “long-standing practice of coercing
inmates into settling their Section 1983 claims for token
amounts under coercive and fraudulent circumstances consti-
tutes a ‘custom or usage with the force of law’ ” as defined
in Adickes, 398 U.S. at 168. Avalos concludes that the “coer-
cive in-custody settlement process also is evidence of deliber-
ate indifference because instead of solving the continuing
problem of over-detaining inmates, it is cheaper to settle their
over-detention claims for a pittance.”

Plaintiff’s claim for his involuntary waiver of his right to
damages due to his over-detention is not persuasive as a mat-
 AVALOS v. BACA 2939
ter of law or of fact. The only authority cited by Avalos for
his proposition is Jones, 648 F.2d 1201, but our opinion in
Jones does not support his assertion of a constitutional viola-
tion.

[3] Jones filed a civil rights action against Multnomah
County officials seeking damages for a beating administered
while he was in the county jail awaiting sentencing. Id. at
1202. The threshold issue was the validity of a release Jones
had signed in exchange for $500.7 Id. The district court
granted summary judgment and we reversed. We explained
that “[a] release of claims under section 1983 is valid only if
it results from a decision that is voluntary, deliberate, and
informed.” Id. at 1203. Citing the approach to maritime
releases, we held that a party seeking to rely on a release in
a § 1983 action has the burden of proving its validity. Id. at
1203-04. We concluded that “objective indications of coer-
cive pressures and a lack of understanding” precluded a grant
of summary judgment, and noted that on remand the district
court must consider “the presence of a noncoercive atmo-
sphere for the execution of the release, or how significant is
the absence of such an atmosphere.” Id. at 1204.
7
Our opinion set forth the undisputed facts as follows:
On the night of July 3, 1976, Jones was taken from his cell,
stripped, gagged, bound, chained to a wall, hosed with cold water
and beaten with a night stick. The incident lasted 3 to 5 hours. He
was then replaced in a special segregation facility and held there
for nineteen days until, on July 22, he was escorted without
notice to an interview room to meet with a deputy county counsel
and a claims adjuster. The subject of the meeting was whether or
not Jones would accept $500 for a release in favor of the county
and the individual defendants for all claims arising from the beat-
ing and mistreatment on the night of July 3.
At the conclusion of the meeting Jones accepted the release and
executed the documents presented to him.
Jones, 648 F.2d at 1202.
2940 AVALOS v. BACA
[4] We agree with Avalos that Jones establishes the criteria
for evaluating the validity of his waiver of his over-detention
claim, but more importantly, we agree with the district court
that the case “does not stand for the proposition . . . that there
is an actionable claim under 42 U.S.C. § 1983 for causing an
involuntary waiver of a civil rights claim.” Avalos, 517 F.
Supp. 2d at 1168-69. The district court explained:

The logic behind this conclusion is simple. If plain-
tiff were to bring an individual civil rights claim for
his over-detention against defendants, defendants
could raise the affirmative defense that the claim was
barred by the waiver. Plaintiff would then argue that
the waiver was involuntary. As an affirmative
defense, it is defendants’ burden to prove that plain-
tiff’s waiver met Jones’ standard of “voluntary,
deliberate and informed.” See Jones, 648 F.2d at
1203. If defendants did not meet this burden, in addi-
tion to damages for his over-detention, plaintiff
would be entitled to attorneys’ fees. Plaintiff could
recover whatever additional attorneys’ [fees] he
incurred in arguing the waiver issue. But the under-
lying constitutional right at issue is not to be free of
a coercive waiver, it is to be free when one is entitled
to be released.

Id. at 1169.

[5] Because a coerced waiver does not extinguish a detain-
ee’s claim for over-detention or false imprisonment, there is
no “freestanding constitutional right to be free of a coercive
waiver.” Id. Whether a waiver was “coerced” is a factual issue
that is properly considered — as it was in Jones — if and
when a defendant raises it as an affirmative defense to a
detainee’s claim for damages. See Salmeron v. United States,
724 F.2d 1357, 1362 (9th Cir. 1983) (holding that “[w]hether
such a release was voluntarily executed is a question of fact
to be determined from all the circumstances”). Accordingly,
 AVALOS v. BACA 2941
although a person may well have a due process right not to be
held to a coerced settlement or waiver, this does not mean that
a government entity in seeking a settlement of waiver violates
a person’s constitutional rights if its efforts are heavy-handed.

[6] Indeed, the proceedings in this case reinforce our deter-
mination that Avalos has not presented a constitutional right
to be free from a coerced waiver. To the extent that the
alleged improper purpose of the waiver was to prevent Avalos
from seeking a full recovery on his claim for over-detention,
it failed. Avalos did file a lawsuit seeking damages for his
over-detention and the district court ruled on its merits,
despite defendants’ contention that his waiver was not
coerced. Thus, unlike the situations presented in cases such as
Phillip v. Hust, 588 F.3d 652 (9th Cir. 2009) (alleging that a
librarian’s failure to allow an inmate to use a comb-binding
machine caused his petition for certiorari to be late), here the
defendants’ actions did not interfere with plaintiff’s access to
the courts.8 Furthermore, as the court considered his claims on
the merits, Avalos would be hard pressed to show any com-
pensable damages from defendants’ allegedly improper
efforts to procure a waiver. We conclude that the district court
properly granted summary judgment in favor of defendants on
plaintiff’s coerced settlement claims.
8
Our determination is consistent with the Supreme Court’s position in
Christopher v. Harbury, 536 U.S. 403 (2002), commenting that a claim of
access to the courts is ancillary to the underlying claim. The Court
explained:
While the circumstances thus vary, the ultimate justification for
recognizing each kind of claim is the same. Whether an access
claim turns on a litigating opportunity yet to be gained or an
opportunity already lost, the very point of recognizing any access
claim is to provide some effective indication for a separate and
distinct right to seek judicial relief for some wrong. However
unsettled the basis of the constitutional right of access to courts,
our cases rest on the recognition that the right is ancillary to the
underlying claim, without which a plaintiff cannot have suffered
injury by being shut out of court.
Id. at 414-15.
2942 AVALOS v. BACA
[7] Finally, even were we to determine that Avalos could
assert a constitutional claim to be free from a coerced waiver,
in light of the dearth of precedent so holding, the defendants
would be entitled to qualified immunity under the second
prong of the test set forth in Saucier v. Katz, 533 U.S. 194,
201 (2001) (holding that “[i]f the law did not put the officer
on notice that his conduct would be clearly unlawful, sum-
mary judgment based on qualified immunity is appropriate”);
see also Pearson v. Callahan, 129 S. Ct. 808, 816 (2009)
(noting that if the plaintiff establishes a violation of a consti-
tutional right, “the court must decide whether the right at
issue was ‘clearly established’ at the time of defendant’s
alleged misconduct”).

C. Plaintiff’s claim of conspiracies to over-detain and
to coerce settlement was properly dismissed
because his underlying claims for over-detention
and coerced settlement were properly dismissed.

The district court cited two grounds to support its grant of
summary judgment for defendants on Avalos’s conspiracy
claim. First, it noted that because it had “already determined
that plaintiff’s involuntary waiver claim fails as a matter of
law,” defendants’ actions in procuring his waiver would not
support a conspiracy claim. Avalos, 517 F. Supp. 2d at 1169.
Addressing the allegations of a conspiracy to over-detain, the
district court noted that the elements to establish a cause of
action under § 1983 were: “(1) the existence of an express or
implied agreement among the defendant officers to deprive
him of his constitutional rights, and (2) an actual deprivation
of those rights resulting from that agreement.” Id. at 1169-70
(quoting Ting v. United States, 927 F.2d 1505, 1512 (9th Cir.
1991)). Applying this standard, the district court’s second
ground for granting summary judgment was that Avalos “has
presented no evidence to support the existence of an agree-
ment or meeting of the minds between defendants, whether
the agreement be specific or inferred from conduct, nor does
 AVALOS v. BACA 2943
he provide any evidence that the deprivation of his right was
the result of such an agreement.” Id. at 1170.

[8] We affirm the district court’s grant of summary judg-
ment for defendants on plaintiff’s conspiracy claim. Although
Avalos maintains that defendants had a deliberately indiffer-
ent custom of over-detaining inmates, he does not really chal-
lenge the district court’s findings that there was no evidence
of an agreement or that his over-detention was the result of
such an agreement. Moreover, the district court properly con-
cluded that its rejection of plaintiff’s involuntary waiver claim
as a matter of law eviscerated his conspiracy claim. See Cas-
settari v. Nevada County, Cal., 824 F.2d 735, 739 (9th Cir.
1987) (noting that “[t]he insufficiency of these allegations to
support a section 1983 violation precludes a conspiracy claim
predicated upon the same allegations”); see also Landrigan v.
City of Warwick, 628 F.2d 736, 742 (1st Cir. 1980) (noting
that “[i]n order to state an adequate claim for relief under sec-
tion 1983, plaintiff must allege and prove both a conspiracy
and an actual deprivation of rights; mere proof of a conspiracy
is insufficient to establish a section 1983 claim” (internal quo-
tation marks and citation omitted)).

D. The district court properly granted defendants
summary judgment on plaintiff’s claims under
RICO.

Avalos alleges that he “has a cognizable property interest
in his Section 1983 cause of action for violation of his Four-
teenth Amendment constitutional rights based on the 73-day
over-detention and therefore has standing to assert his RICO
claim.” He further asserts that the record is replete with evi-
dence that “through fraud and duress, the defendants had a
pattern of fraudulently extracting in-custody settlements for
negligible amounts, and of defeating, or attempting to defeat,
potential Section 1983 lawsuits.”

The district court set forth the criteria for a RICO claim as
follows:
2944 AVALOS v. BACA
[RICO] prohibits, among other activities, the con-
ducting of an enterprise’s affairs through racketeer-
ing activity. 18 U.S.C. § 1962(c). A prima facie
RICO case requires: (1) conduct (2) of an enterprise
(3) through a pattern (4) of racketeering activity.
Miller v. Yokohama Tire Corp., 358 F.3d 616, 620
(9th Cir. 2004). Furthermore, there must be an injury
to a specific business or property interest. Diaz v.
Gates, 420 F.3d 897, 898 (9th Cir. 2005). The plain-
tiff must also demonstrate that defendants engaged
in at least two acts of racketeering activity as defined
in 18 U.S.C. § 1961. Bowen v. Oistead, 125 F.3d
800, 806 (9th Cir. 1997). Moreover, RICO requires
as a threshold for standing an injury to “business or
property.” 18 U.S.C. § 1964(c). “Without a harm to
a specific business or property interest — a categori-
cal inquiry typically determined by reference to state
law — there is no injury to business or property
within the meaning of RICO.” Diaz, 420 F.3d at 900.

Section 1962(d) prohibits anyone from conspiring
to violate the provisions of 18 U.S.C. § 1962(c).
Under § 1962(d), plaintiff must show that defendants
objectively manifested their agreement to participate
in a racketeering enterprise through the commission
of two or more predicate crimes. Baumer v. Pachl,
8 F.3d 1341, 1346-47 (9th Cir. 1993).

Avalos, 517 F. Supp. 2d at 1170.

The district court proceeded to grant defendants summary
judgment on Avalos’s RICO claims because: (1) although
“plaintiff alleges he has suffered lost wages and economic
opportunities due to his over-detention, plaintiff has presented
no evidence to support this assertion”; (2) “plaintiff has pre-
sented no evidence of a ‘pattern’ of ‘racketeering activity’ by
any of the defendant officials sued in their official or individ-
ual capacities”; and (3) as to plaintiff’s RICO conspiracy
 AVALOS v. BACA 2945
claim, “plaintiff has not presented any evidence of a ‘conspir-
acy’ or ‘agreement’ among defendants to over-detain him.”
Id. at 1171-72. The district court concluded, citing Celotex
Corp v. Catrett, 477 U.S. 317, 323 (1986), that Avalos had
not met his burden at the summary judgment stage of present-
ing evidence to show a genuine issue for trial. Id.

On appeal, Avalos argues that he has standing to assert a
RICO claim because we look to state law to determine what
is a property right and California law provides that a cause of
action to recover money in damages is a form of personal
property. See Diaz, 420 F.3d at 899 (stating that “[w]e believe
the best-reasoned approach is that of Doe v. Roe, 958 F.2d
763 (7th Cir. 1992), under which we typically look to state
law to determine ‘whether a particular interest amounts to
property,’ id. at 768.”); see also Parker v. Walker, 5 Cal. App.
4th 1173, 1182-83 (citing Cal. Civil Code §§ 663 and 953,
and holding that a “cause of action to recover money in dam-
ages, as well as money recovered in damages, is a chose in
action and therefore a form of personal property”).9

[9] The district court’s grant of summary judgment for the
defendants on plaintiff’s RICO claims was proper for at least
two reasons. First, a prima facie RICO case requires a show-
ing of conduct of an enterprise through a pattern of racketeer-
ing activity. Miller, 358 F.3d at 620. Here, the determination
that defendants did not engage in a custom, policy or practice
of over-detention precludes Avalos from alleging any predi-
cate act concerning over-detention that might support a find-
ing of a pattern of racketeering activity. This conclusion is
reinforced by plaintiff’s failure to allege that the defendants
9
Avalos also claims that the district court erred in granting summary
judgment against him on his RICO claims because (1) the district court
misconstrued his burden at the summary judgment stage, (2) qualified
immunity is not available to defendants on RICO claims, and (3) his FAC
adequately states RICO claims. These contentions are not discussed as
they do not affect our reasons for affirming the district court.
2946 AVALOS v. BACA
had any personal involvement in their over-detentions. Simi-
larly, as there is no constitutional right against defendants
seeking settlements or waivers, defendants in procuring
Avalos’s waiver did not commit any predicate act that might
support a finding of a pattern of racketeering activity.

[10] Second, in order to state a RICO claim, a plaintiff
must show harm to a specific business or property interest.
Diaz, 420 F.3d at 900 (holding that “[w]ithout a harm to a
specific business or property interest . . . there is no injury to
business or property within the meaning of RICO”). Avalos
has failed to do so. He has not proffered any evidence of spe-
cific injury to a business, and it appears that he cannot do so
because he admits that he is not a United States citizen and
does not have a work visa. Avalos may be correct in contend-
ing that his right to judicial action could be considered “prop-
erty” under California law, but he cannot show any harm
because the allegedly coerced waiver, in fact, did not deny
him access to the courts. In other words, even if the right to
a judicial proceeding is a property right under California law,
Avalos suffered no “harm” to that right because he was able
to file his claim for over-detention (and coerced settlement) in
the district court.

IV

There appears to be no doubt that Avalos was improperly
over-detained by the LASD. In this action, however, he seeks
damages from the Sheriff and two officers of the LASD based
on 42 U.S.C. § 1983 and RICO. The district court properly
concluded that Avalos failed to make a prima facie showing
for relief under these statutes. He failed to show that the offi-
cers had any personal involvement in his over-detention or
that his over-detention was the result of any custom, policy or
practice of the LASD. Also, Avalos failed to show that he had
any constitutional right against the LASD seeking a settle-
ment of his claim for over-detention. In addition, he has not
demonstrated any cognizable injury from the allegedly
 AVALOS v. BACA 2947
coerced waiver of his right to seek damages due to his over-
detention. Finally, on plaintiff’s RICO claims, the district
court properly determined that Avalos had failed to allege any
improper acts by the named defendants that could be con-
strued as constituting a pattern of racketeering activity and he
failed to show any harm to a business or property interest. For
these reasons, the district court’s grant of summary judgment
in favor of defendants and against the plaintiff is
AFFIRMED.