Unpublished Disposition, 922 F.2d 846 (9th Cir. 1991)

MEMORANDUM^* 

This controversy originated in the Torrance Police Department's investigation and arrest of Curtis Whitson for allegedly sexually molesting his two daughters. After criminal charges were dismissed, Whitson brought suit under 42 U.S.C. section 1983 against individual defendants and the City of Torrance. The district court granted a directed verdict for all defendants at the close of Whitson's case. Whitson timely appealed. He also timely appealed from the district court's subsequent denial of his motion to retax costs. The district court had jurisdiction pursuant to 28 U.S.C. sections 1331 and 1343. We have jurisdiction over both appeals under 28 U.S.C. section 1291 and affirm.

* The standard for reviewing the propriety of a directed verdict is the same on appeal as it is for the trial court. Othman v. Globe Indem. Co., 759 F.2d 1458, 1463 (9th Cir. 1985), overruled on other grounds, Bryant v. Ford Motor Co., 844 F.2d 602 (9th Cir. 1987). A directed verdict is proper if the evidence permits only one reasonable conclusion. We examine all the evidence in the light most favorable to the nonmoving party to decide whether substantial evidence supports a finding in favor of that party. Id.

To make out a cause of action under section 1983, plaintiffs must show that the defendants (1) acted under color of state law, and (2) deprived them of a federally protected right. Borunda v. Richmond, 885 F.2d 1384, 1391 (9th Cir. 1988). Whitson failed to establish a prima facie case on each of his claims against the individual defendants and the City of Torrance. The district court therefore properly granted the defendants' motion for a directed verdict.

* We begin with Whitson's allegation that he was arrested without probable cause. In assessing false arrest claims under section 1983, we apply the principles of Franks v. Delaware, 438 U.S. 154 (1978). See Forster v. County of Santa Barbara, 896 F.2d 1146, 1148 n. 3 (9th Cir. 1990). Under Franks, an affidavit supporting a warrant is presumed valid. Id. at 1148 (citing Franks, 438 U.S. at 154). This presumption is overcome only if the party challenging the affidavit establishes that the affidavit either contains deliberate falsehoods or was submitted with reckless disregard for the truth. Id. If either condition is established, the allegedly false statement or reckless material must be set aside. Id. The remaining information in the affidavit may nevertheless be sufficient to support a finding of probable cause. Id.

The underlying affidavit in this case incorporated thirty-seven pages of reports, including Meyer's police report, Dugan's written reports (based on her interviews with each of the Whitson children), and Elvik's medical reports (based on her physical examinations of Amanda and Natalie). Whitson alleges that the arrest warrant was not supported by probable cause because of inconsistencies between Meyer's police report and Dugan's report about his alleged molestation of Natalie.

We affirm the district court's conclusion that the arrest warrant was supported by probable cause. Despite inconsistencies between Meyer's and Dugan's accounts about the scope of the alleged molestation, both reports support a finding that Whitson sexually abused Natalie in some manner. Thus, the affidavit cannot be characterized as containing a deliberate falsehood. Nor, as the district court found, was it submitted with a reckless disregard for the truth, since Meyer submitted both his and Dugan's reports in full to the magistrate. Whitson has therefore failed to defeat the presumption of the affidavit's validity. Moreover, the remaining information in the affidavit still gives rise to a reasonable belief that Whitson molested his daughters, and therefore supports a finding of probable cause. See id. Aside from Natalie's allegations, the affidavit included Amanda's statements to Dugan that Whitson had sexually abused her, and Elvik's medical reports indicating that both girls had been subjected to anal and vaginal penetration, including relatively recent penetration of Amanda.

Whitson also argues that probable cause was lacking because Dugan's destruction of her therapy notes suggested that her report was unreliable. This argument is meritless, as Whitson otherwise failed to establish that Dugan's report was false or unreliable. Finally, Whitson claims that probable cause was lacking because Meyer failed to make a more extensive investigation before seeking an arrest warrant. Since probable cause was established, he had no duty to continue his investigation before seeking an arrest warrant. See Kompare v. Stein, 801 F.2d 883, 891 (7th Cir. 1986) (police have no constitutional duty to keep investigating a crime once they have established probable cause).

B

Since Meyer and Hertica had probable cause to seek an arrest warrant, Whitson has failed to make out a prima facie case of malicious prosecution. See Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). There was also no evidence to suggest that Meyer and Hertica had an improper motive in seeking Whitson's arrest and an intent to deprive him of a constitutional right. Thus Whitson failed to establish the remaining elements of a malicious prosecution cause of action under section 1983. See id.

C

Whitson claims that his due process right to a fair trial was compromised by Dugan's destruction of her therapy notes and Hertica's alleged intimidation of Whitson's brother, Craig Whitson. Whitson also alleges that Meyer, Hertica, Dugan and Deaton conspired to have Judy Hudson removed as guardian ad litem in an effort to prevent him from seeing his children. We affirm the district court's directed verdict on each of these claims.

Citing California v. Trombetta, 467 U.S. 479, 104 S. Ct. 2528, 81 L. Ed. 2d 413 (1984), Whitson argues that the destruction of Dugan's notes deprived him of "due process rights." He presumably relies on the right, recognized in Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963), of a criminal defendant to have access to favorable evidence that is material either to guilt or punishment. Brady and its progeny, however, are intended "to ensure that a miscarriage of justice does not occur." United States v. Bagley, 473 U.S. 667, 675, 105 S. Ct. 3375, 3380, 87 L. Ed. 2d 481, 489 (1985) (footnote omitted). As the Supreme Court explained in United States v. Agurs, "unless the omission deprived the defendant of a fair trial, there was no constitutional violation ... and absent a constitutional violation, there was no breach of the constitutional duty to disclose...." 427 U.S. 97, 108, 96 S. Ct. 2392, 2399, 49 L. Ed. 2d 342 (1976). In the absence of a criminal trial, Whitson has not suffered a constitutional violation cognizable under section 1983.

Whitson's vague allegations about witness intimidation may also be summarily dismissed. First, there is no evidence that Hertica actually threatened Craig Whitson. Second, in order to prevail on his claim that his due process rights were violated by the alleged intimidation of a witness, Whitson must show "some prejudice to [him] flowing from the alleged misconduct." United States v. Little, 753 F.2d 1420, 1438 n. 8 (9th Cir. 1984).

As to Whitson's conspiracy allegations, Whitson failed to prove that the alleged conspiracy even existed. He also failed to establish that he suffered a deprivation of his rights as a result of the alleged conspiracy since he retained visitation rights following Hudson's resignation. Proof of a deprivation is an essential element of a cause of action under section 1983. Arnold v. International Business Machines Corp., 637 F.2d 1350, 1355 (9th Cir. 1981) ("In a section 1983 cause of action the plaintiff must show that the defendants have deprived him of a right.").

We also affirm the district court's finding that Deaton was not acting under color of state law. Action taken by private individuals may be "under color of state law" where there is "significant" state involvement in the action. Howerton v. Gabica, 708 F.2d 380, 382 (9th Cir. 1983). To establish that a defendant acted under color of state law by virtue of joint action, a plaintiff must prove "a substantial degree of cooperative action." Collins v. Womancare, 878 F.2d 1145, 1154 (9th Cir. 1989), cert. denied, 110 S. Ct. 865, 107 L. Ed. 2d 949 (1990). Whitson has failed to meet this burden. At best, he has shown that Hertica and Deaton had a single conversation about Hudson. This single act cannot support a finding of "significant" state involvement, and the district court properly found that Deaton was not acting under color of state law.

D

Whitson alleges that the City of Torrance is liable for its failure properly to train its officers in investigative techniques for child abuse cases. Since Whitson has failed to establish that his constitutional rights have been violated, his claim against the City of Torrance must necessarily fail. See Arnold, 637 F.2d at 1355.

II

Whitson claims that the district court erred in excluding certain testimony. Rachel Faith was to have testified to Anderson's reputation for infidelity. Her testimony was excluded on grounds of relevancy. Faith was also prepared to testify that Anderson had told her that she would falsely accuse Whitson to retain custody of the children. Whitson also sought to elicit from Karen Warneke a statement that Natalie had disavowed having been molested by Whitson. These latter two statements were excluded as hearsay. We review the district court's rulings for abuse of discretion. United States v. Burreson, 643 F.2d 1344, 1349 (9th Cir.), cert. denied, 452 U.S. 920 (1981). Whitson argues that Faith's testimony was relevant to show that Meyer and Hertica conducted an unreasonable investigation. Faith testified, however, that she had not been contacted by the officers. Thus, the district court did not abuse its discretion in excluding the proferred testimony, which was both prejudicial and irrelevant. The court also properly excluded the testimony regarding Anderson's threat and Natalie's statements on hearsay grounds since they were clearly offered to prove the truth of the matter asserted.

III

Whitson argues that the district court erred in denying his motion to retax costs. He claims that Deaton's reapplication to tax costs was untimely under Local Rule 16.3. That rule provides that a prevailing party must file and serve a bill of costs within fifteen days after entry of judgment. Local Rule for the Central District of California 16.3. Since Deaton refiled her motion to tax costs with the clerk of the court nearly six months after the entry of judgment and failed to show good cause for the late filing, Whitson argues that the district court committed reversible error in denying his motion to retax costs.

Deaton contends that her motion to tax costs was timely filed in the first instance since, pursuant to 28 U.S.C.A. section 1920, she filed her motion with the district court within fifteen days after judgment was entered. As Deaton points out, section 1920 provides for the filing of a motion to tax costs with either the court or the clerk of the court. Since the initial motion was timely filed, Deaton argues that Local Rule 16.3 is no bar to her recovery of costs.

A district judge's award of costs is reviewed for abuse of discretion. Alflex Corp. v. Underwriters Laboratories, Inc., 914 F.2d 175 (9th Cir. 1990). We affirm the district court's denial of Whitson's motion to retax costs.

The critical question here is whether Deaton complied with Local Rule 16.3 in her initial application to tax costs. As Deaton rightly points out, a motion for costs under section 1920 is governed by Rule 54(d). See Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-42, 107 S. Ct. 2494, 2497, 96 L. Ed. 2d 385 (1987) ("Section 1920 enumerates expenses that a federal court may tax as a cost under the discretionary authority found in Rule 54(d)."). In the absence of a local rule, Rule 54(d) contains no specific provision as to time limitations for the taxation of costs. Congregation of the Passion v. Touche, Ross & Co, 854 F.2d 219, 221 (7th Cir. 1988); 6 J. Moore, W. Taggart & J. Wicker, Moore's Federal Practice p 54.77 at 54-482-83 (2d ed. 1990). When, however, a local rule applies, its requirements must be adhered to. Congregation of the Passion, 854 F.2d at 221. Thus, if Deaton's initial application to tax costs complied with Local Rule 16.3, it was within the district court's discretion under Rule 54(b) to allow her to refile that application nearly six months after the entry of judgment.

There is no question that Deaton's initial application was timely filed. Whitson argues, however, that Deaton failed to comply with Local Rule 16.3 because she filed her application with the court, rather than the clerk of the court. By its terms, Local Rule 16.3 can be read to require that a bill of costs be filed with the clerk of the court, since it states that the bill "shall be attached to a Notice of Application to the Clerk to Tax Costs." Local Rule 16.3 for the Central District of California (emphasis added). Judge Davies, however, concluded that the rule was satisfied by a filing made to the court within fifteen days. District courts have considerable discretion in interpreting and applying their own local rules, see Fargo-Biltmore Motor Hotel Corp. v. Best Western Int'l Corp., 742 F.2d 459, 465 (8th Cir. 1984), and this case presents no reason for us to depart from that principle by disturbing Judge Davies' reading of Local Rule 16.3. This is particularly true since section 1920 explicitly allows a prevailing party to apply for costs with either the district court or the clerk. Thus, the district court did not abuse its discretion in interpreting the local rule so as not to conflict with the express terms of the statute.

IV

We find it necessary to dwell on the conduct of Whitson's counsel, Edward M. Fox, in pursuing this appeal. In support of his theory that he was the victim of a conspiracy to deprive him of custody of his children, Whitson alleged at trial that Deaton had destroyed her therapy notes upon instruction from the district attorney. He failed to produce any direct evidence to support this claim. On appeal, Mr. Fox stated unequivocally in his brief that a witness had testified that " [i]n sum and substance, [she] heard the district attorney (Judy Beckwith) tell Deaton and others to 'lose' some notes she had. Deaton agreed." This is a flagrant mischaracterization of the record. The alleged testimony was neither given nor can the allegations made be reasonably inferred from the trial transcript.¹  Mr. Fox's misconduct is particularly troublesome given the very serious nature of the allegations made and their total lack of evidentiary support.

Counsel's professional duty requires scrupulous accuracy in referring to the record. DCD Programs, LTD v. Leighton, 846 F.2d 526, 528 (9th Cir. 1988). This court should not have to pour over an extensive record as an alternative to relying on counsel's representations. We rely on counsel "to state clearly, candidly, and accurately the record as it in fact exists." Id. This Mr. Fox has failed to do. We trust that in future argument before this court he will diligently pursue this duty. Should he fail to do so, sanctions may be in order.

V

We AFFIRM, in all respects, the district court's grant of a directed verdict in favor of the defendants and the denial of Whitson's motion to retax costs.