Unpublished Disposition, 846 F.2d 1382 (9th Cir. 1983)

MEMORANDUM^* 

Terry Hardage appeals from the dismissal and the summary judgment against him of his claims against various police and county employees under 42 U.S.C. § 1983. The district court's jurisdiction was based upon 28 U.S.C. § 1343. We have jurisdiction pursuant to 28 U.S.C. § 1291. We affirm.

Hardage was arrested on October 25, 1983 and charged with theft of services stemming from his alleged unauthorized use of a telephone for long distance calls at the Umpqua Community College in Roseburg, Oregon. His home, truck, and camper were searched pursuant to a search warrant and certain materials were seized. Hardage was arraigned and released on October 28. A grand jury returned Hardage's indictment as "not a true bill," and the charges against Hardage were accordingly dismissed.

Hardage, proceeding pro se, filed suit against some nineteen defendants, claiming Sec. 1983 violations. The gist of his complaint is that he was the subject of harassment for six years from Detectives Bates and Chirrick of Douglas County due to the production of his movie "Northwest Search and Rescue," and that this harassment culminated in Hardage's illegal arrest, the illegal search of his property, and the theft of his movie dialogue.

A. Denial of Motion for Reconsideration, Grant of Summary Judgment for Bates, and Dismissal of Chirrick

We find it unnecessary to decide whether Hardage's motion for reconsideration was properly denied, because even if we take all of Hardage's allegations contained therein as true, Bates was properly granted summary judgment. In reviewing a district court's decision to dismiss, a court of appeals may affirm on any basis presented by the record. Hatch v. Reliance Ins. Co., 758 F.2d 409, 414 (9th Cir.), cert. denied, 474 U.S. 1021 (1985); Compton v. Ide, 732 F.2d 1429, 1433 (9th Cir. 1984).

The district court dismissed the Estate of Gerald Chirrick sua sponte, apparently on the ground that the Estate was never served with a summons and complaint. In fact, the complaint was amended to add the Estate, and the Estate filed an answer. Although it appears that the district court may have erred by dismissing the Estate of Gerald Chirrick, all of Hardage's allegations against Chirrick concern Chirrick's actions in concert with Detective Bates. As with Bates, Chirrick's actions were objectively reasonable with reference to clearly established law.

Hardage has failed to show that his arrest or the search of his camper violated clearly established constitutional rights and thus cannot withstand summary judgment. Harlow v. Fitzgerald, 457 U.S. 800, 818-819 (1982); see also Anderson v. Creighton, 107 S. Ct. 3034, 3039-3040 (1987).

The warrantless arrest of Hardage was valid because Bates and Chirrick could reasonably believe that it was more likely than not that Hardage had made unauthorized long distance phone calls in violation of Or.Rev.Stat. Sec. 164.125 (1985). See United States v. Strong, 778 F.2d 1393, 1397 (1985). Mike Hoffman, Student Activities Director, and Bob Price, Student Body President of Umpqua Community College, told Bates that they believed Hardage was responsible for making a large number of unauthorized long distance calls from the student government phone. The five people with access to the phone denied making the calls. Bates personally confirmed that at least three of the long distance calls were made by Hardage. Because their belief that they had probable cause to arrest was not objectively unreasonable, Bates and Chirrick were entitled to summary judgment prior to discovery. See Anderson, 107 S. Ct. at 3039-3040.

Prior to the arrest and search, Detective Bates of the Douglas County Sheriff's office applied for and received a search warrant authorizing him to search for a manila envelope containing phone numbers and correspondence at Hardage's parents' residence. The search warrant specifically included Hardage's pickup truck but did not include his camper.

It has often been held that a search warrant authorizing the search of certain premises covers automobiles found on those premises. E.g., United States v. Asselin, 775 F.2d 445 (1st Cir. 1985); United States v. Bulgatz, 693 F.2d 728 (8th Cir. 1982), cert. denied, 429 U.S. 1210 (1983); United States v. Napoli, 530 F.2d 1198 (5th Cir.), cert. denied, 429 U.S. 920 (1976); see also United States v. Normandeau, 800 F.2d 953, 957 (9th Cir. 1986). Because this circuit has not yet faced the exact situation Hardage alleges, the search of Hardage's camper was obviously not a "clearly established" constitutional violation. Therefore, Hardage's illegal search claim cannot withstand summary judgment. See Harlow, 457 U.S. at 818-819.

The search warrant was properly issued. See Illinois v. Gates, 462 U.S. 213, 236 (1983). Bates' supporting affidavit was facially sufficient to establish the requisite probable cause, and the search warrant issued for "a manila envelope or folder containing correspondence and phone numbers" stated with sufficient particularity the items to be seized. See United States v. Seybold, 726 F.2d 502, 503 (9th Cir. 1984).

B. Summary Judgment for Johnston, Deputy Sheriff

Johnston's actions in arresting Hardage and taking him away were objectively reasonable given the fact that probable cause existed. Even if there had been no probable cause to arrest, a junior officer following his superior's orders in making an arrest is shielded from liability by the good faith defense. Vela v. White, 703 F.2d 147, 152 (5th Cir. 1983). We affirm the summary judgment granted to Johnston.

C. Summary Judgment for Mican, Joslin, Nolte and Neal

Defendants Mican, Joslin, Nolte, and Neal were also granted summary judgment. At the time of the incident Mican was the captain in charge of the jail facility, Joslin was an assistant district attorney, Nolte was the Douglas County Counsel, and Neal the Douglas County Sheriff. Each defendant submitted an affidavit stating that he or she had no personal knowledge or involvement with the decisions relating to the arrest, detention, or search in question. Taking all of Hardage's allegations in his motion for reconsideration as true, he has failed to present a genuine issue as to any material fact against the defendants.

No Sec. 1983 liability lies where there is no affirmative link between police misconduct and the adoption of any plan or policy by a supervisory official, express or otherwise, which shows their authority or approval of such misconduct. Monell v. N.Y. City Dept. of Social Services, 436 U.S. 658, 691 (1978); Rizzo v. Goode, 423 U.S. 362, 377 (1976); Gonzales v. Peoria, 722 F.2d 468, 479-480 (9th Cir. 1983). Additionally, Joslin is entitled to absolute immunity from liability as deputy district attorney acting in her prosecutorial capacity. Imbler v. Pachtman, 424 U.S. 409, 420 (1976); Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 677-678 (9th Cir. 1984). We affirm the summary judgment granted to Mican, Nolte, Neal, and Joslin.

D. Summary Judgment for Douglas County and Commissioners Vian, Long, and Robertson

Hardage fails to allege facts sufficient to show that Douglas County or its Commissioners promulgated a municipal policy or custom which caused the violation of his constitutional rights. Monell, 436 U.S. at 690-692. Hardage has not shown that any municipal policy was the moving force behind the alleged constitutional violation and therefore cannot establish liability under Sec. 1983. Id. at 692; Oklahoma City v. Tuttle, 471 U.S. 808, 824 (1985). The summary judgment for the County and the Commissioners was properly granted.

As district attorney for Douglas County, Laswell is entitled to absolute immunity from damages for acts arising out of his prosecutorial functions. Imbler, 424 U.S. at 420; Ybarra, 723 F.2d at 677-678. Laswell did not act outside his capacity as district attorney, nor did he cause Hardage's alleged injury. The district court correctly granted Laswell's motion to dismiss for failure to state a claim.

We also affirm release assistance officer Byars' dismissal. Hardage's claim against Byars amounts to his objection that he report to Byars twice per week and that he not leave the county. Even under the liberal pleading standards afforded to pro se litigants, the plaintiff has not alleged any constitutionally cognizable claim against Byars.

G. Denials of Hardage's Motions for Default, Contempt, and Summary Judgment

The denials of Hardage's motions for default judgment, contempt, and summary judgment are affirmed. The district court's failure to impose sanctions was well within the court's appropriate range of action and was not an abuse of discretion. See Lew v. Kona Hospital, 754 F.2d 1420, 1425-1426 (9th Cir. 1985); C. Wright and A. Miller, Federal Practice & Procedure, Secs. 2281, 2284 (1970). Hardage's motion for summary judgment is bereft of merit.

AFFIRMED.