NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FILED
FOR THE NINTH CIRCUIT
JUN 16 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
STEVEN PECK; et al., No. 14-15526
Plaintiffs - Appellants, D.C. No. 2:12-cv-01371-JAT
v.
MEMORANDUM*
MARGARET HINCHEY, individually
and in her official capacity as a peace
officer with the Arizona Attorney
General’s Office; et al.,
Defendants - Appellees.
STEVEN PECK; et al., No. 14-15717
Plaintiffs - Appellees, D.C. No. 2:12-cv-01371-JAT
v.
MARGARET HINCHEY, individually
and in her official capacity as a peace
officer with the Arizona Attorney
General’s Office,
Defendant - Appellant.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, Senior District Judge, Presiding
Argued and Submitted March 16, 2016
San Francisco, California
Before: BYBEE and N.R. SMITH, Circuit Judges and KORMAN,** Senior District
Judge.
Plaintiff-appellants are Phoenix Police Department (“PPD”) officers who
were subjected to a criminal investigation. After the charges against them were
dismissed, they filed suit against the internal investigator, Paula Veach, and the
state investigator, Margaret Hinchey, for various claims under 42 U.S.C. § 1983
and Arizona state law relating to fabrication of evidence and malicious
prosecution. The district court granted Hinchey’s motion to dismiss, and granted
Veach’s motion for summary judgment. On appeal, the plaintiffs argue that the
district court erred in: (1) finding that Hinchey was entitled to absolute immunity
with respect to four of plaintiffs’ claims; (2) dismissing the complaint against
Hinchey without leave to amend; and (3) granting summary judgment in favor of
**
The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.
2
Veach.1 We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part and
reverse and remand in part.
1. We review the decision on the motion to dismiss de novo. See Watson v.
Weeks, 436 F.3d 1152, 1157 (9th Cir. 2006). Under Rehberg v. Paulk, 132 S. Ct.
1497, 1505–07 (2012), grand jury witnesses have absolute immunity both for their
testimony and for “preparatory activity, such as a preliminary discussion in which
the witness relates the substance of his intended testimony.” Id. at 1507. After
acknowledging that Rehberg does not extend to non-testimonial, out-of-court
fabrication of evidence, the district court concluded that Counts I, II, III, and VI
were “inextricably tied” to Hinchey’s grand jury testimony and thus barred by
absolute immunity. We affirm the district court’s decision with respect to Count
VI, but reverse on Counts I, II, and III.
The district court determined that Counts I, II, and III are “inextricably tied”
to Hinchey’s grand jury testimony, because Hinchey was part of a “conspirac[y] to
testify falsely.” See Lisker v. City of L.A., 780 F.3d 1237, 1241 (9th Cir. 2015). We
disagree. Construing the complaint in the light most favorable to the plaintiffs,
Counts I, II, and III are not based on allegations that Hinchey conspired to testify
1
Hinchey also filed a cross-appeal, Case Number 14-15717, which Hinchey
indicated in her brief she intended to withdraw. We therefore dismiss this appeal.
3
falsely, but rather on Hinchey’s alleged non-testimonial, out-of-court fabrication of
evidence to support criminal charges. This alleged conduct is not protected by
absolute immunity. See Lisker, 780 F.3d at 1242 (denying absolute immunity and
finding that police investigative notes and reports were not “inextricably tied” to
testimony and “[fell] outside the protection of absolute immunity” because “police
investigative materials have evidentiary value wholly apart from assisting trial
testimony”).
2. Because the plaintiffs sought leave to amend the Second Amended
Complaint after the May 31, 2013 deadline set by the district court’s modified
scheduling order, their ability to amend is governed by Fed. R. Civ. P. 16. We
review for abuse of discretion the district court’s denial of a motion to amend the
scheduling order. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th
Cir. 1992). The plaintiffs had three previous opportunities to amend their
complaint and did not demonstrate “good cause” to amend past the deadline. Id. at
608. The district court did not abuse its discretion, and we affirm the district
court’s decision on this issue. Accordingly, the district court need only consider
the allegations in the Second Amended Complaint on remand.
3. We review de novo the district court’s grant of summary judgment in
favor of Veach. Szajer v. City of L.A., 632 F.3d 607, 610 (9th Cir. 2011).
4
Plaintiffs allege two main claims against Veach: fabrication of evidence claims, see
Devereaux v. Abbey, 263 F.3d 1070, 1074–75 (9th Cir. 2001) (en banc) (“[T]here
is a clearly established constitutional due process right not to be subjected to
criminal charges on the basis of false evidence that was deliberately fabricated by
the government.”); and a malicious prosecution claim. Plaintiffs have a causation
problem with respect to both the Devereaux claims and the malicious prosecution
claim, as they cannot demonstrate that Veach’s conduct directly resulted in the
bringing of criminal charges against them. Awabdy v. City of Adelanto, 368 F.3d
1062, 1067 (9th Cir. 2004) (to show malicious prosecution, plaintiffs must
demonstrate that state or local officials engaged in conduct that was “actively
instrumental in causing the initiation of legal proceedings”); Devereaux, 263 F.3d
at 1074–75 (plaintiffs must show that they were “subjected to criminal charges”
based on fabricated evidence). The purpose of Veach’s investigation was to
determine whether the plaintiffs had violated PPD policies, not whether criminal
charges could be brought. The Attorney General’s Office was aware that Veach’s
investigation was incomplete and that the spreadsheet contained errors. The
plaintiffs have not raised a genuine issue of material fact that Veach caused the
plaintiffs to be subjected to criminal charges. We therefore affirm the district
court’s grant of summary judgment in favor of Veach.
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Appeals 14-15526 AFFIRMED IN PART, REVERSED AND
REMANDED IN PART. The parties shall bear their own costs.
Appeals 14-15717 DISMISSED.
6