FILED
NOT FOR PUBLICATION APR 17 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
CLAUDIO RADOCCHIA, No. 10-56332
Plaintiff - Appellant, D.C. No. 2:09-cv-01680-SJO-RC
v.
MEMORANDUM *
CITY OF LOS ANGELES; et al.,
Defendants - Appellees,
and
SONIA POWELL; et al.,
Defendants.
Appeal from the United States District Court
for the Central District of California
S. James Otero, District Judge, Presiding
Argued and Submitted February 16, 2012
Pasadena, California
**
Before: PREGERSON and BEA, Circuit Judges, and PRATT, District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Robert W. Pratt, District Judge for the U.S. District
Court for Southern Iowa, sitting by designation.
Plaintiff-Appellant Claudio Radocchia appeals the district court’s grant of
summary judgment for Defendant-Appellees City of Los Angeles in this 42 U.S.C.
§ 1983 action. The parties are familiar with the facts underlying the appeal and
thus we do not include them here.
Officer Monica McPartland had objective probable cause to arrest
Radocchia, thus the arrest was not a violation of the Fourth or Fourteenth
Amendments. See Whren v. United States, 517 U.S. 806, 814 (1996); Edgerly v.
City & Cnty. of San Francisco, 599 F.3d 946, 954 (9th Cir. 2010). Because
probable cause to prosecute is also objective and is an absolute defense against a
malicious prosecution claim, Radocchia’s malicious prosecution claim likewise
fails. Lassiter v. City of Bremerton, 556 F.3d 1049, 1054–55 (9th Cir. 2009).
There was no triable issue of fact that McPartland fabricated evidence, see
Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001), or that McPartland
violated Radocchia’s equal protection rights because he was male or Mexican-
American.
Radocchia’s Fifth Amendment rights were not violated by McPartland’s
failure to give him Miranda warnings because there is no free-standing Miranda
right: for a Fifth Amendment violation to occur, an interrogation must be used in a
criminal proceeding. Chavez v. Martinez, 538 U.S. 760, 767 (2003). Radocchia’s
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interrogation was not used in a criminal proceeding because it did not form the
basis of a criminal charge. Stoot v. City of Everett, 582 F.3d 910, 925 (9th Cir.
2009). In addition, Radocchia was not in custody during his interrogation. United
States v. Coutchavlis, 260 F.3d 1149, 1157–58 (9th Cir. 2001); Stansbury v.
California, 511 U.S. 318, 322 (1994).
McPartland is entitled to qualified immunity because reasonable police
officers could conclude there was probable cause for Radocchia’s arrest by
McPartland. Rosenbaum v. Washoe County, 663 F.3d 1071, 1078 (9th Cir. 2011).
No Monell claim survives against the City of Los Angeles because no claim
survives against McPartland acting within the scope of her employment. City of
Los Angeles v. Heller, 475 U.S. 796, 799 (1986).
Radocchia’s conspiracy claims similarly fail because, as described above, he
was not deprived of any constitutional rights.
Radocchia’s state law claims are all time-barred for failure to file
administrative claims within 6 months of his arrest, see Cal. Gov. Code §§ 911.2,
945.4, save his claim for malicious prosecution, which is barred by the finding that
there was probable cause for his arrest, Lassiter, 556 F.3d at 1054–55.
The district court’s grant of summary judgment as to all of the foregoing
claims is therefore AFFIRMED.
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However, to the extent that Radocchia brings state law claims against
McPartland individually acting outside the scope of her employment, those claims
are not barred by the existence of probable cause, the plaintiff’s failure timely to
file administrative claims under Cal. Gov. Code § 911.2, see Hoff v. Vacaville
Unified Sch. Dist., 19 Cal. 4th 925, 932 (1998), nor the governmental immunity of
Cal. Gov. Code § 821.6, see Soliz v. Williams, 74 Cal. App. 4th 577, 582 (1999).
In particular, Defendant-Appellee’s counsel admitted at oral argument that
McPartland was not acting within the scope of her employment when she
recommended to Stacy Gonsalves that Radocchia lose his job as a baby-sitter.
Defendant-Appellee’s counsel made no such admission with respect to
Radocchia’s other state law claims alleged against McPartland individually, and
thus we do not comment on the merits of these claims. Therefore, the district
court’s grant of summary judgment with respect to all state law claims against
McPartland individually acting outside the scope of her employment is
REVERSED and REMANDED for further proceedings consistent with this
disposition.
Each side to bear its own costs.
AFFIRMED IN PART, REVERSED AND REMANDED IN PART.
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