Unpublished Disposition, 855 F.2d 862 (9th Cir. 1983)

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US Court of Appeals for the Ninth Circuit - 855 F.2d 862 (9th Cir. 1983)

Marilyn S. RYUSAKI, Plaintiff-Appellant,v.Nathan ESTABEN; Alvin Chong; Mark Haggerty, Defendants-Appellees.Lloyd K. RAY, Jr., Plaintiff-Appellant,v.Nathan ESTABEN; Alvin Chong; Mark Haggerty, Defendants-Appellees.

Nos. 86-2281, 86-228.

United States Court of Appeals, Ninth Circuit.

Submitted Aug. 9, 1988* .Decided Aug. 16, 1988.

Before WALLACE, TANG and NELSON, Circuit Judges.


MEMORANDUM

Plaintiffs Ryusaki and Ray brought this action under 42 U.S.C. § 1983 against Estaben, Haggerty, and Chong, three officers employed by the Hawaiian police department. The complaint alleged in part that Estaben and Haggerty broke and entered into the Ryusaki/Ray home on November 13, 1983, without a warrant and seized their child in violation of the fourth amendment. After a bench trial, the district court entered judgment for the officers, finding, among other things, that no search or seizure within the meaning of the fourth amendment occurred. Ryusaki and Ray challenge the district court's finding that no fourth amendment violation occurred. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

Contrary to the plaintiffs' assertions on appeal, we need not determine whether the police officers introduced sufficient evidence to prove that Ray abused the child or that the child was in imminent danger to uphold the district court's conclusion that the plaintiffs' civil rights were not violated in this case. We may affirm the decision of the district court on any ground finding support in the record. See, e.g., Hatch v. Reliance Insurance Co., 758 F.2d 409, 414 (9th Cir.), cert. denied, 474 U.S. 1021 (1985).

The district court found that no search within the meaning of the fourth amendment occurred because Ryusaki or Ray consented to the presence of Haggerty and Estaben in their home on November 13, 1983. The court also found that Estaben and Haggerty did not seize the child while on the premises. The child left the premises with her grandmother. The court thus concluded that no search or seizure within the meaning of the fourth amendment occurred.

The voluntariness of a search is a question of fact. United States v. Ritter, 752 F.2d 435, 439 (9th Cir. 1985). Therefore, we review the district court's determination that Ryusaki and Ray consented to the presence of the officers in their home for clear error. Fed. R. Civ. P. 52(a). Similarly, the district court's finding that the officers did not take the child into custody is a finding of historical fact, reviewed only for clear error. Id.

The district judge credited the testimony of Haggerty and Estaben that each was invited into the premises, and rejected conflicting evidence. Similarly, the court credited the testimony of Estaben and Haggerty that Ryusaki's mother took the child from the premises and that neither officer assumed physical custody of the child, and rejected the plaintiffs' assertion that the officers seized their child from them.

Under the clearly erroneous standard, we may not reverse a district court's view of the evidence as long as it is plausible in light of the record viewed in its entirety. Anderson v. City of Bessemer City, 470 U.S. 564, 574 (1985) (Anderson) . Special deference must be paid to credibility determinations of the district court, id.; Fed. R. Civ. P. 52(a), "for only the trial judge can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding of and belief in what is said." Anderson, 470 U.S. at 575. With these principles in mind, we cannot say that the district court's determination that no search or seizure occurred in this case is clearly erroneous. Each of the court's findings is supported by testimony in the record. That the district court chose to believe the testimony of the police officers over that of the plaintiffs does not make its findings clearly erroneous. Mayview Corp. v. Rodstein, 620 F.2d 1347, 1353 (9th Cir. 1980).

The district court's determination that no search or seizure occurred in this case is itself sufficient to support its conclusion that the plaintiffs' fourth amendment rights were not violated by the officers' conduct. Therefore, we need not reach the question whether the district court erred in determining that the officers' conduct was justified by exigent circumstances or by the officers' good faith. Nor need we reach the question whether there was sufficient evidence to support a finding that Ray or Ryusaki were guilty of child abuse in this case. The plaintiffs were not on trial for child abuse; the officers were on trial for violating Ryusaki's and Ray's civil rights. The district court's determination that Ryusaki and Ray were not entitled to relief under 42 U.S.C. § 1983 did not constitute a finding or judgment regarding their fitness as parents.

Ryusaki and Ray also contend that the district judge was biased against them. However, they point to no specific conduct or words of the district court which could give rise to an inference of bias on the part of the district judge. Instead, they apparently base their allegations of bias on the district court's failure to rule in their favor despite the alleged lack of evidence that either Ray or Ryusaki harmed the child. As we have already stated, however, the district court did not need to find that the plaintiffs abused the child to rule in the officers' favor. The district judge's adverse ruling cannot, therefore, support an inference of bias on his part. Cf. United States v. Studley, 783 F.2d 934, 939 (9th Cir. 1986) (judge's prior adverse ruling is not sufficient grounds for recusal).

Ryusaki and Ray also challenge several evidentiary rulings of the district court. We have considered these challenges and conclude that they are without merit.

The officers request attorneys' fees and double costs pursuant to Fed. R. App. P. 38 and 28 U.S.C. § 1912. We decline the request. Their brief contained citations to irrelevant and long-overruled authority and made legally baseless arguments, including the astonishing argument that the fourth amendment was irrelevant in this case because plaintiffs' claim was "civil," rather than criminal. We conclude that the police officers, who were represented by counsel in this appeal, are hardly in a position to argue that plaintiffs, who acted pro se, should be sanctioned for making frivolous arguments.

AFFIRMED.

 *

The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a) and Ninth Circuit Rule 34-4

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