Norwood Price v. Michael Peerson

FILED
NOT FOR PUBLICATION
MAR 22 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

NORWOOD PRICE, No. 14-55836

Plaintiff - Appellant, D.C. No. 2:13-cv-03390-PSG-JEM

v.
MEMORANDUM*
MICHAEL PEERSON; AKAL
SECURITY INC.; WILLIAM
WALLACE; POTE PIGULSAWAS;
STEVEN MCGRATH,

Defendants - Appellees.

Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding

Submitted March 7, 2016**
Pasadena, California

Before: W. FLETCHER, MURGUIA, and OWENS, Circuit Judges.

*
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).
Appellant Norwood Price appeals the district court’s grant of summary

judgment in favor of Appellees Michael Peerson—a U.S. Marshal—and three

Courthouse Security Officers (“CSOs”), who purportedly detained Price for

approximately ten minutes at a federal courthouse in Los Angeles, California, after

Price inquired about the courthouse’s policy of requiring visitors to remove their

shoes before entering. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

As a preliminary matter, Price has moved to strike portions of one of the

answering briefs as irrelevant and prejudicial. We disfavor motions to strike, and

Price offers no authority in support of the relief he seeks. Accordingly, his motion

to strike is denied.

On the merits, the district court did not err in granting summary judgment

on Price’s claims under Bivens v. Six Unknown Named Agents of Fed. Bureau of

Narcotics, 403 U.S. 388 (1971). Price has failed to demonstrate the existence of a

genuine issue of material fact regarding whether any of the defendants-appellees

violated his First or Fourth Amendment rights. The undisputed evidence

establishes that the CSOs’ brief conversation with Price was not a “seizure” within

the meaning of the Fourth Amendment because a reasonable person in Price’s

position would have felt free to terminate the interaction and leave, see United

2
States v. Orman, 486 F.3d 1170, 1175 (9th Cir. 2007), and nothing in the record

shows that the defendants-appellees intended to interfere with Price’s First

Amendment right to file a grievance against the Marshal.

See Mendocino Envtl. Ctr. v. Mendocino Cty., 14 F.3d 457, 464 (9th Cir. 1994).

Further, because Price failed to raise a genuine issue of material fact as to

whether any of the defendants-appellees violated his First or Fourth Amendment

rights, his claim under California’s Bane Act likewise fails as a matter of law. See

Cameron v. Craig, 713 F.3d 1012, 1022 (9th Cir. 2013) (“[The Bane Act] does not

provide any substantive protections; instead, it enables individuals to sue for

damages as a result of constitutional violations.” (quoting in parenthetical Reynolds

v. Cty. of San Diego, 84 F.3d 1162, 1170 (9th Cir. 1996), overruled on other

grounds by Acri v. Varian Assocs., Inc., 114 F.3d 999, 1000 (9th Cir. 1997))).

Finally, the district court was within its discretion to conclude that the U.S.

Marshals Service had no reason to believe it had a duty to preserve courthouse

security tapes of Price’s visit to the Marshal’s Office, which are ordinarily

recorded over every thirty days. There was no evidence that the videos were

intentionally destroyed, nor did future litigation arising out of the incident with

Price appear likely until nearly a year after the recordings were erased. See United

States v. Kitsap Physicians Serv., 314 F.3d 995, 1001 (9th Cir. 2002) (“Defendants

3
engage in spoliation of documents as a matter of law only if they had ‘some notice

that the documents were potentially relevant’ to the litigation before they were

destroyed.” (citation omitted)).

AFFIRMED.