NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS APR 14 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL NICHOLS; MINDY NICHOLS; No. 15-56641
GEORGIA NICHOLS,
D.C. No.
Plaintiffs-Appellants, 5:14-cv-01553-PSG-AS
v.
MEMORANDUM*
GIL FERNANDEZ; RAE FERNANDEZ;
MATTHEW BEARD,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Philip S. Gutierrez, District Judge, Presiding
Argued and Submitted April 3, 2017
Pasadena, California
Before: BEA and OWENS, Circuit Judges, and CHHABRIA,** District Judge.
Plaintiffs Michael Nichols, Mindy Nichols, and Georgia Nichols appeal
from the district court’s grant of summary judgment in favor of Defendants, Palm
Springs police officers Gil Fernandez, Rae Fernandez, and Matthew Beard. We
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Vince G. Chhabria, United States District Judge for
the Northern District of California, sitting by designation.
have jurisdiction under 28 U.S.C. § 1291, and we affirm. As the parties are
familiar with the facts, we repeat only those facts necessary to resolve the issues
raised on appeal.
1. Defendants did not violate Plaintiffs’ constitutional rights.
Plaintiffs claim that Defendants violated their due process rights by exposing
them to danger. Under the state-created danger doctrine, state officials can be held
liable when they “affirmatively and with deliberate indifference place[] an
individual in danger she would not otherwise have faced.” Kennedy v. City of
Ridgefield, 439 F.3d 1055, 1066 (9th Cir. 2006). Before this Court, Plaintiffs
claim that the district court erred in granting summary judgment because there is a
triable issue of fact whether Officer Rae Fernandez (“Rae”) “revealed [Plaintiffs’]
identity as confidential informants” by filing two police reports and thereby
violated the state-created danger doctrine.1
In the police report that Plaintiffs consider most objectionable, Rae states
that she knew Michael and Mindy Nichols and that they were the owners of Palm
Springs Finest and Collectibles (a pawn shop). This report also states that Rae
texted Mindy, that Michael drove a burglary suspect at Rae’s request to the
1
Plaintiffs submitted unsigned, unsworn declarations to provide other evidence
that Rae allegedly revealed Plaintiffs’ identity. The district court did not abuse its
discretion in excluding these declarations. See Orr v. Bank of Am., NT & SA, 285
F.3d 764, 773 (9th Cir. 2002).
2
suspect’s home, and that Mindy answered Rae’s questions about whether Mindy
had purchased stolen goods from the suspect. This police report was released only
to the district attorney and to Mindy Nichols, and the other police report was
released only to the district attorney and to the probation office.
Since the police reports did not expressly identify Plaintiffs as confidential
informants and the reports were not disseminated to the public, Rae’s decision to
write and file the police reports did not place Plaintiffs in a “known or obvious”
danger. Kennedy, 439 F.3d at 1064. Although Plaintiffs later experienced threats
related to their work as confidential informants, Plaintiffs have not provided
evidence that the police reports caused these threats. Thus, there is no evidence
that Rae’s actions or omissions created a specific danger other than that voluntarily
accepted by Plaintiffs when they agreed to be confidential informants. See Gatlin
ex. rel. Estate of Gatlin v. Green, 362 F.3d 1089, 1093–94 (8th Cir. 2004)
(affirming a grant of summary judgment when the plaintiff, a confidential
informant who was killed by retaliating gang members, claimed that the state failed
to do more to protect him); Summar on Behalf of Summar v. Bennet, 157 F.3d
1054, 1060 n.2 (6th Cir. 1998) (affirming the dismissal of the plaintiff’s § 1983
state-created danger claim because the officer did nothing to increase the risk the
confidential informant had voluntarily assumed). Therefore, the district court did
not err when it granted summary judgment in favor of Rae.
3
Plaintiffs do not provide evidence that Officers Gil Fernandez and Matthew
Beard disclosed Plaintiffs’ status as confidential informants or otherwise
affirmatively endangered Plaintiffs. Since an individual can be held liable under
42 U.S.C. § 1983 only if that individual personally participated in the alleged civil
rights violation, Jones v. Williams, 297 F.3d 930, 934–35 (9th Cir. 2002), the
district court also did not err when it granted summary judgment in favor of
Officers Gil Fernandez and Matthew Beard.
2. Rae is also entitled to qualified immunity.
“[G]overnment officials performing discretionary functions” are entitled to
qualified immunity. Anderson v. Creighton, 483 U.S. 635, 638 (1987). To
evaluate a claim of qualified immunity, this Court considers (1) whether “the facts
alleged show the official’s conduct violated a constitutional right” and (2) whether
“the right was clearly established” when the conduct took place. Tarabochia v.
Adkins, 766 F.3d 1115, 1121 (9th Cir. 2014) (quoting Robinson v. New York, 566
F.3d 817, 821 (9th Cir. 2009)). A right is clearly established if a reasonable public
official would know that her specific conduct was unconstitutional. Cunningham
v. Gates, 229 F.3d 1271, 1287 (9th Cir. 2000) (citing Creighton, 483 U.S. at 636–
37).
During the events in question, there was no established law that a police
officer violates the state-created danger doctrine when she writes in a police report
4
that she knew certain individuals and worked with them on a case, even when
those individuals happen to be confidential informants. Even if Rae filing the
police report “affirmatively and with deliberate indifference placed [Plaintiffs] in
danger [they] would not otherwise have faced,” Kennedy, 439 F.3d at 1066, a
reasonable police officer would not have known that this specific conduct was
unconstitutional based on existing case law. Thus, Rae was also entitled to
summary judgment based on qualified immunity.
AFFIRMED.
5