NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
APR 15 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
BRIAN OLSEN, No. 14-15620
Plaintiff - Appellant, D.C. No. 2:12-cv-00543-JCM-PAL
v.
MEMORANDUM*
CITY OF HENDERSON, a political
subdivision of the STATE OF NEVADA;
DETECTIVE NICHOLS, individually and
in his capacity as a police officer
employed by the City of Henderson Police
Department; CITY OF BOULDER CITY,
a political subdivision of the STATE OF
NEVADA; OFFICER AARON
JOHNSON, individually and in his
capacity as a police officer employed by
Boulder City,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted March 15, 2016
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: BYBEE and N.R. SMITH, Circuit Judges, and HELLERSTEIN,** Senior
District Judge.
Plaintiff Brian Olsen appeals from the District Court’s order granting
summary judgment for the defendants, and awarding attorneys’ fees to the City of
Boulder City and Officer Aaron Johnson. Because the facts and proceedings
below are known to the parties, we repeat them here only as necessary to explain
our decision. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
We review the District Court’s grant of summary judgment de novo. Lyall v. City
of Los Angeles, 807 F.3d 1178, 1185 (9th Cir. 2015). “We will uphold a summary
judgment if there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Kohler v. Bed Bath & Beyond of Cal.,
LLC, 780 F.3d 1260, 1263 (9th Cir. 2015) (quoting Fed. R. Civ. P. 56(a)) (internal
quotation marks omitted).
We review attorneys’ fee awards pursuant to 42 U.S.C. § 1988 for abuse of
discretion. We “affirm unless the district court applied the wrong legal standard or
its findings were illogical, implausible or without support in the record.” Gonzalez
v. City of Maywood, 729 F.3d 1196, 1201–02 (9th Cir. 2013) (citation omitted)
**
The Honorable Alvin K. Hellerstein, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.
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The District Court properly granted summary judgment to the defendants,
dismissing the complaint against them. The District Court was legally authorized
to grant attorneys’ fees to defendants Boulder City and Aaron Johnson, and acted
within its proper discretion in doing so.
As to defendant Wayne Nichols, the Henderson City detective, the District
Court properly found that, after reasonable investigation, he came to the reasonable
belief that Olsen had emailed nude pictures of a classmate to his personal email
address from her cell phone, and that she had not consented to his use of her phone
for any purpose other than to make a call to his family. Nichols reasonably
believed that Olsen had violated Nev. Rev. Stat. § 200.604 by capturing and
publishing to his personal email address an image of the complainant’s private
parts without her consent and in circumstances where she had a reasonable
expectation of privacy. Thus, Nichols had probable cause to believe that Olsen had
committed a crime, and could arrest him, directly or with the help of another police
officer.
We are not involved in an appeal of a conviction of a violation of the
Nevada statute, where we would have to rule on whether a crime under the statute
actually was committed. A probable cause determination “requires only a
probability or substantial chance of criminal activity, not an actual showing of such
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activity.” Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983). The issue is whether
defendant Nichols had probable cause to believe that the statute was violated, and
probable cause exists even if he made a reasonable mistake of fact or law. Heien v.
North Carolina, 135 S.Ct. 530, 539 (2014). The District Court did not err in
making these findings, dismissing the case against defendant Nichols.
Defendant Nichols also was protected by qualified immunity. He caused
Olsen to be arrested after a reasonable investigation of facts and law led him to
believe that Olsen had committed a crime. Nichols thus did not violate any
constitutional right of Olsen. Pearson v. Callahan, 555 U.S. 223, 231 (2009)
(“The doctrine of qualified immunity protects government officials ‘from liability
for civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have
known.’”) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). The District
Court did not rule on qualified immunity, but the parties briefed the issue and we
are authorized to rule on it. E.g., Bibeau v. Pac. Nw. Research Found. Inc., 188
F.3d 1105, 1111 n.5 (9th Cir. 1999), opinion amended on denial of reh’g, 208 F.3d
831 (9th Cir. 2000).
Even if Detective Nichols had lacked probable cause, Boulder City Officer
Aaron Johnson was protected by qualified immunity. His participation in the
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investigation and probable cause determination was minimal. Rather, the Boulder
City Police Department (“BCPD”) assigned him to assist Nichols. Nichols had
advised the BCPD that he had determined that there was probable cause to arrest
Olsen for violating Nevada Rev. Stat. § 200.604 and asked for assistance. Johnson
reasonably relied on Nichols’ determination, when he carried out the arrest of
Olsen outside of Olsen’s home. See, e.g., United States v. Bernard, 623 F.2d 551,
560–61 (9th Cir. 1979) (holding that officers are entitled to rely upon observations
and knowledge of other officers in establishing probable cause).
The District Court’s summary judgment denying Olsen’s Monell
claims against both the City of Henderson and the City of Boulder City was
proper. Olsen did not identify any long-standing practice or custom that
would support municipal liability. We previously have held that
“municipalities are subject to damages under § 1983 in three situations:
when the plaintiff was injured pursuant to an expressly adopted official
policy, a long-standing practice or custom, or the decision of a ‘final
policymaker.’” Ellins v. City of Sierra Madre, 710 F.3d 1049, 1066 (9th Cir.
2013) (citing Monell v. Dep’t of Social Services, 436 U.S. 658 (1978)).
None of those conditions existed.
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Olsen also did not establish that a triable issue of material fact exists
as to his state law claims for intentional infliction of emotional distress, false
imprisonment, and malicious prosecution. The record does not support the
allegation that Officer Johnson or Detective Nichols intended to harm Olsen
or acted unreasonably, nor does it support that Olsen suffered severe or
extreme emotional distress. See Nelson v. City of Las Vegas, 99 Nev. 548,
554 (1983). Olsen also failed as to his false imprisonment claim, as nothing
in the record suggests he was restrained of his liberty under the “probable
imminence of force without any legal cause or justification therefore.” See
Marschall v. Carson, 86 Nev. 107, 110 (1970). Likewise, he failed to
establish malice or damage, required elements of his claim for malicious
prosecution. See La Mantia v. Redisi, 118 Nev. 27, 30 (2002).
The District Court did not abuse its discretion in awarding fees
pursuant to 42 U.S.C. § 1988 to the City of Boulder City and Officer
Johnson. The claims against Boulder City and Johnson were “‘frivolous,
unreasonable, or without foundation.’” See Harris v. Miracopa Cty. Sup. Ct.,
631 F.3d 963, 976 (9th Cir. 2011) (quoting Christiansburg Garment Co. V.
EEOC, 434 U.S. 412, 421 (1978)). The fees were incurred in defense and
were reasonable.
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AFFIRMED.
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