Unpublished Disposition, 886 F.2d 1319 (9th Cir. 1988)

Plaintiffs-appellants Earnest J. Finnie and James M. Timmons appeal pro se the district court's grant of summary judgment dismissing their civil rights claims under 42 U.S.C. § 1983.¹  They argue that the district court (1) erred in applying collateral estoppel to a state court probable cause determination; (2) abused its discretion in denying them leave to amend their complaints; and (3) abused its discretion in refusing to hold the defendants in contempt of court for allegedly violating Federal Rule of Civil Procedure 56(g). We have jurisdiction under 28 U.S.C. § 1291 and we affirm.

ANALYSIS

1. Summary Judgment Based on Collateral Estoppel

Finnie and Timmons were arrested and charged with possession of burglary tools in violation of City of Bellevue Code Sec. 10.12.160. They filed a consolidated motion to suppress evidence seized at the time of their arrest. Among the items seized was a screwdriver. According to police testimony at the suppression hearing, the screwdriver had been observed in plain view on the floor of a car Finnie and Timmons had occupied when they were arrested. At the time of their arrest, both Finnie and Timmons were under investigation for suspicion of having participated in burglaries in the Bellevue-Richmond area. A number of the burglaries had been accomplished by prying open doors or windows with a pry tool such as a screwdriver. The burglaries typically occurred in the evening hours. Finnie and Timmons were apprehended in the evening hours and gave conflicting stories as to their presence sitting in the car in the area where they were parked.

At the suppression hearing, the state court ruled that there was probable cause for the police to arrest and search Finnie and Timmons, and to search the car. The searches yielded additional evidence linking Finnie and Timmons to the burglaries, and they were subsequently prosecuted. Finnie was found guilty. In a separate trial, Timmons was acquitted. Finnie was granted a new trial, but the prosecutor decided not to pursue the case against him further, and the charges against Finnie were dropped.

Finnie and Timmons then filed complaints in the district court against the police officers and others who the plaintiffs alleged had violated their civil rights under 42 U.S.C. §§ 1983 and 1985(2) and (3). By order dated March 26, 1987, the district court granted partial summary judgment and dismissed all of the section 1985 claims. The court also dismissed the section 1983 claims which had been alleged against defendants other than the police officers, Rochelle, Hansen and Gleason. The police officers later filed a second motion for summary judgment. By order dated March 14, 1988, the district court dismissed the remaining section 1983 claims against the police officer defendants. The district court ruled that these claims were dependent upon a showing that the defendants had arrested and searched Finnie and Timmons, and had searched the car, in violation of the plaintiffs' fourth amendment rights to be free from unreasonable search and seizure. The state court determination of probable cause, however, had resolved this issue against Finnie and Timmons. Under the doctrine of collateral estoppel, the state court determination was entitled to preclusive effect in the section 1983 action filed in federal court; and this defeated Finnie's and Timmons' claims. We agree.

Under the doctrine of collateral estoppel, "once a court has decided an issue of fact or law necessary to its judgment, that decision may preclude relitigation of the issue in a suit on a different cause of action involving a party to the first case," Allen v. McCurry, 449 U.S. 90, 94 (1980), provided that there was a "full and fair opportunity" to litigate the issue in the earlier case. Id. at 95.

Finnie and Timmons both participated in the state court suppression hearing. They were given a full and fair opportunity to present their contention that the police had planted the screwdriver in the car, Allen, 449 U.S. at 95, but failed to make such an argument.²  The state court's determination that probable cause existed necessarily determined that the police had acted legally in arresting Finnie and Timmons, and in searching them and the car. This determination negates any argument that the police planted the screwdriver or otherwise acted in bad faith. See Allen, 449 U.S. at 102 n. 18 (" [A] state court decision that the police acted legally cannot but foreclose a claim that they acted in bad faith.").³ 

Finnie and Timmons also argue that Timmons' acquittal of the charge of being in possession of burglary tools necessarily resolved the issue of whether the screwdriver had been planted. According to this argument, if Timmons was not in possession of the screwdriver, which allegedly was one of the burglary tools, the police must have planted it. We reject this argument. Timmons' jury could have acquitted him for any number of reasons unconnected with whether the screwdriver had been planted. And, as previously noted, Timmons did not contend in his trial that the police had planted the screwdriver in the car.

Finally, Finnie and Timmons argue that the state court order finding probable cause was an interlocutory, not a final order, and should be denied collateral estoppel effect for this reason. This argument is also meritless. Final judgments were entered in the state cases against Finnie and Timmons. The earlier probable cause determination became a final order.

In its orders dated March 26, 1987, the district court denied Finnie's and Timmons' motions for leave to amend their complaints because the cutoff date for amending had passed. By the amended complaints, Finnie and Timmons sought to add Susan Irwin, prosecutor for the City of Bellevue, as a defendant. They alleged she and Richard Andrews, who prosecuted them in state court, conspired with the police officers to prosecute and convict them. The district court, however, granted summary judgment in favor of the prosecutors on the basis of prosecutorial immunity. The complaints, as amended, would have been subject to dismissal. Therefore, denial of leave to amend was proper. See Pan-Islamic Trade Corp. v. Exxon Corp., 632 F.2d 539, 546 (9th Cir. 1980), cert. denied, 454 U.S. 927 (1981).

Finnie and Timmons also contend they should have been granted leave to amend so that they could add facts based upon newly discovered evidence to support their allegation that they were under investigation by the police during 1981 and 1982. This allegation was not in dispute. It was also alleged in the original complaints. Thus, there was no need to grant leave to amend to allege further facts to support the allegation.

We conclude that the district court did not abuse its discretion in denying Finnie and Timmons leave to amend their complaints.

Finnie and Timmons contend the defendants and their attorneys conspired to perpetrate a fraud upon the court by filing false affidavits. They argue that the district court abused its discretion when it refused to hold the defendants in contempt. They base this argument on the ground that in failing to hold the defendants in contempt, the district court failed to enforce the mandatory language of Federal Rule of Civil Procedure 56(g).⁴  We reject this contention. Finnie and Timmons made no showing that the defendants or their counsel acted in bad faith. The district court properly denied the contempt motion.

Defendants seek reasonable attorney fees, pursuant to 42 U.S.C. § 1988. We do not find in the record before us any district court order either granting or denying attorney fees under section 1988. Absent some finding by the district court that the action was "unreasonable, frivolous, meritless or vexatious," we are reluctant to make our own finding on this issue. See Roberts v. Spalding, 783 F.2d 867, 874 (9th Cir.), cert. denied, 479 U.S. 930 (1986).

Insofar as the defendants' request for attorney fees can be interpreted as a request for fees for defending against this appeal, which appeal the defendants argue is frivolous, the request for attorney fees is denied. See Fed. R. App. P. 38.

AFFIRMED.