Brian Olsen v. City of Henderson

NOT FOR PUBLICATION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.

2
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

3
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

4
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.

5
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.

6
AFFIRMED.