Bias v. Moynihan

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALICE BIAS, 

Plaintiff-Appellant,

v. No. 05-16752

FRANK MOYNIHAN, San Leandro  D.C. No.

CV-04-00615-SBA

Police Officer; CITY OF SAN

LEANDRO; JOSEPH KITCHEN, San OPINION

Leandro Police Chief,

Defendants-Appellees.



Appeal from the United States District Court

for the Northern District of California

Saundra B. Armstrong, District Judge, Presiding

Argued and Submitted

October 18, 2007—San Francisco, California

Filed November 29, 2007

Before: Arthur L. Alarcón and Richard C. Tallman,

Circuit Judges, and Kevin Thomas Duffy,* Senior Judge.

Opinion by Judge Alarcón

*The Honorable Kevin Thomas Duffy, Senior United States District

Judge for the Southern District of New York, sitting by designation.

15333

BIAS v. MOYNIHAN 15337

COUNSEL

Barry K. Tagawa, San Francisco California, for the appellant.

Joseph M. Quinn and Tricia Hynes (argued), Meyers, Nave,

Riback, Silver & Wilson, Oakland, California, for the appel-

lees.

OPINION

ALARCÓN, Circuit Judge:

Alice Bias appeals from the order of the district court grant-

ing summary judgment in favor of Officer Frank Moynihan,

Police Chief Joseph Kitchen, and the City of San Leandro.

She contends that the district court erred in concluding that

she failed to demonstrate that there were genuine issues of

facts in dispute regarding whether the Appellees detained her

for psychiatric evaluation without probable cause in violation

of her federal and state law rights. Ms. Bias also claims that

the district court abused its discretion in its evidentiary and

procedural rulings. We affirm because we conclude that prob-

able cause existed to justify detaining her on two occasions,

and the district court’s evidentiary and procedural rulings do

not compel a reversal of the judgment.

I

A

The record shows that in May 2002, Ms. Bias was the

plaintiff in a civil action before Alameda County Superior

15338 BIAS v. MOYNIHAN

Court Judge Kenneth Burr. She wrote a letter dated May 22,

2002, to Judge Burr in which she stated: “If I lose this case,

I shall kill myself.”

On or about May 23, 2002, the Alameda Sheriff’s Office

requested that the San Leandro Police Department contact

Ms. Bias. Officer Moynihan was dispatched to interview Ms.

Bias about her letter to Judge Burr. Officer Moynihan alleged

in his declaration that when he asked Ms. Bias if she was

going to kill herself if she lost her case, she responded that

“she would do what she wanted to herself when her case was

over.” She appeared to be depressed and emotional. Officer

Moynihan observed that Ms. Bias did not have anyone in her

home to watch her. Officer Moynihan became concerned that

Ms. Bias might hurt herself. Ms. Bias testified during her

deposition that she told the interviewing officer that she was

“very depressed” and that she could “not guarantee” whether

an “Arab terrorist” might “kill” her. Officer Moynihan

detained Ms. Bias pursuant to California Welfare and Institu-

tions Code section 5150.1 He reported his observations in an

1

Section 5150 provides:

When any person, as a result of mental disorder, is a danger to

others, or to himself or herself, or gravely disabled, a peace offi-

cer, member of the attending staff, as defined by regulation, of an

evaluation facility designated by the county, designated members

of a mobile crisis team provided by Section 5651.7, or other pro-

fessional person designated by the county may, upon probable

cause, take, or cause to be taken, the person into custody and

place him or her in a facility designated by the county and

approved by the State Department of Mental Health as a facility

for 72-hour treatment and evaluation.

Such facility shall require an application in writing stating the

circumstances under which the person’s condition was called to

the attention of the officer, member of the attending staff, or pro-

fessional person, and stating that the officer, member of the

attending staff, or professional person has probable cause to

believe that the person is, as a result of mental disorder, a danger

to others, or to himself or herself, or gravely disabled. If the prob-

able cause is based on the statement of a person other than the

officer, member of the attending staff, or professional person,

such person shall be liable in a civil action for intentionally giv-

ing a statement which he or she knows to be false.

BIAS v. MOYNIHAN 15339

application for emergency psychiatric detention and signed

the report.2 Ms. Bias was transported to a psychiatric hospital

and released later that same evening after being examined.

On May 14, 2003, Officer Moynihan was parked near a

shopping center. Ms. Bias approached Officer Moynihan as

he sat in the driver’s seat of a marked police vehicle. She

appeared to be extremely agitated. She asked Officer Moyni-

han to take a report about her neighbors. She reported that

they “were out to get her for disturbing a meeting” and “were

plotting against her and mistreating her.” Officer Moynihan

spoke with Ms. Bias’s neighbor who reported that Ms. Bias

constantly accused her “of plotting to ruin [Ms. Bias’s] life.”

As Officer Moynihan questioned Ms. Bias, she became

increasingly agitated and visibly angry. Officer Moynihan

asked her to calm down. Instead, she began grabbing at him.

Officer Moynihan stated in his declaration that at this point a

bystander became alarmed. Officer Moynihan concluded that

Ms. Bias’s paranoid and angry behavior could escalate to the

point that she would attempt to injure herself or harm others.

As a result of these observations, Officer Moynihan deter-

mined that she should be evaluated by a mental health profes-

sional as being a danger to herself or others. As he filled out

the application for emergency psychiatric detention, Ms. Bias

attempted to run away.

Ms. Bias’s behavior caused Officer Moynihan to recall that

he had been asked on or about May 23, 2002 to determine

whether Ms. Bias should be detained for medical evaluation

2

In the application for emergency psychiatric detention dated May 23,

2002, Officer Moynihan wrote: “Subj. said that she wanted to take her

own life - subj. wrote in a letter to a judge at the municipal court that she

would kill herself if she lost her civil case.” He also reported: “Upon talk-

ing to subj. she said ‘I will do whatever I want to when the case is done.’

I directly asked the subj. if she felt like hurting herself and she said, ‘I will

do what I want to myself.’ Subj. was depressed and emotional - threat to

herself.”

15340 BIAS v. MOYNIHAN

for being a danger to herself or others because she had stated

she would kill herself if Judge Burr ruled against her. Based

on Ms. Bias’s behavior on May 14, 2003, and his earlier inter-

actions with Ms. Bias regarding her threat to commit suicide,

Officer Moynihan again detained Ms. Bias pursuant to section

5150.3 Ms. Bias was examined at a psychiatric hospital and

released later that same evening.

B

On November 17, 2003, Ms. Bias filed a pro se complaint

against Appellees in Alameda Superior Court. Appellees

removed the case to federal court. On June 4, 2004, Ms. Bias

filed an amended complaint in which she alleged violations of

her federal constitutional rights pursuant to 42 U.S.C. § 1983,

and state law causes of action for assault and battery, false

arrest, illegal imprisonment, intentional infliction of emo-

tional distress, negligence, and racial discrimination pursuant

to California Civil Code section 51.7.

On June 14, 2005, Ms. Bias filed a motion to compel the

deposition testimony of Officer Moynihan. On June 21, 2005,

Appellees filed a motion for summary judgment. Ms. Bias

filed an opposition to the motion for summary judgment with-

out filing an affidavit, a declaration, a deposition, answers to

interrogatories, or responses to requests for admissions show-

ing that there is a genuine issue of material fact for trial. In

her opposition to summary judgment, Ms. Bias objected to the

3

In the application for emergency psychiatric detention dated May 14,

2003, Officer Moynihan wrote: “Subj. flagged me down and wanted to

have people in her apartment arrested for ‘disturbing the meeting.’ Subj.

seemed paranoid and continuously grabbed toward me. Subj. continuously

recited the California constitution and subj. yelled loudly not making

sense.” Officer Moynihan also reported: “Upon talking with subj. she

began yelling saying the police are on the side of the people, ‘they try to

get me.’ Upon telling subj. about commitment she said, ‘You need to be

committed[,] you are the crazy one.’ Subj. grabbed my arm while writing

report - extremely combative.”

BIAS v. MOYNIHAN 15341

admission of three exhibits: the application for emergency

psychiatric detention dated May 14, 2003; her medical

records; and her deposition testimony. On July 19, 20, and 22,

2005, Appellees filed notices of errata concerning two of the

exhibits filed in support of Appellees’ motion for summary

judgment. On July 25 and 26, 2005, Ms. Bias filed two sur-

replies which the district court did not consider because she

had filed them without prior approval from the district court

as required by Northern District of California Civil Local

Rule 7-3(d). On July 26, 2005, the district court overruled Ms.

Bias’s objections to the three exhibits and granted summary

judgment in favor of the Appellees.

Ms. Bias filed a timely notice of appeal.4 We have jurisdic-

tion to review the district court’s final order pursuant to 28

U.S.C. § 1291.

II

Ms. Bias contends that the district court erred in determin-

ing that Officer Moynihan was entitled to summary judgment

based on the doctrine of qualified immunity with respect to

her § 1983 claim. She claims that there are genuine issues of

material facts in dispute regarding whether Officer Moynihan

had probable cause to detain her for a psychiatric evaluation

on both May 23, 2002 and May 14, 2003.

Viewing the evidence in the light most favorable to the

nonmoving party, we “review de novo a district court’s deci-

sion to grant or deny summary judgment.” Prison Legal News

v. Lehman, 397 F.3d 692, 698 (9th Cir. 2005). We also “re-

view a grant or denial of qualified immunity de novo.” Id.

To evaluate whether Officer Moynihan has demonstrated

that he is entitled to the defense of qualified immunity with

regard to the § 1983 claim, we must first determine whether

4

Ms. Bias is represented by counsel in this appeal.

15342 BIAS v. MOYNIHAN

there are genuine issues of material facts in dispute. If there

are no disputed material facts, we must then determine if,

based on the undisputed facts, in the light most favorable to

Ms. Bias, a reasonable officer could believe that he had prob-

able cause to detain Ms. Bias. See Saucier v. Katz, 533 U.S.

194, 201 (2001) (“A court required to rule upon the qualified

immunity issue must consider, then, this threshold question:

Taken in the light most favorable to the party asserting the

injury, do the facts alleged show the officer’s conduct violated

a constitutional right?”).

A

Ms. Bias argues that Officer Moynihan was not the officer

who detained her on May 23, 2002. She also argues that her

statement that she would “kill herself” if she lost her case was

hyperbole. Regarding the May 14, 2003 incident, Ms. Bias

maintains that there are genuine issues of material facts in dis-

pute as to whether Officer Moynihan “twisted” what she told

him about people trying to “get her.” She also disputes Offi-

cer Moynihan’s statement regarding when she grabbed him.

Summary judgment is proper where there is no genuine

issue of material fact in dispute and the moving party is enti-

tled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In

opposing summary judgment, a nonmoving party must “go

beyond the pleadings and, by her own affidavits, or by the

‘depositions, answers to interrogatories, and admissions on

file,’ designate ‘specific facts showing that there is a genuine

issue for trial.’ ” Celotex Corp. v. Catrett, 477 U.S. 317, 324

(1986) (citing Fed. R. Civ. P. 56(e)).

[1] To avoid summary judgment, Ms. Bias was required to

present “ ‘significant probative evidence tending to support’ ”

her allegations. Gen. Bus. Sys. v. N. Am. Philips Corp., 699

F.2d 965, 971 (9th Cir. 1983) (quoting First Nat’l Bank of

Ariz. v. Cities Serv. Co., 391 U.S. 253, 290 (1968)). As noted

BIAS v. MOYNIHAN 15343

above, Ms. Bias failed to present any evidence to support her

opposition to the Appellees’ motion for summary judgment.

[2] Ms. Bias concedes that she did not present any evidence

to the district court to support the claims in her amended com-

plaint. Appellant’s Reply Br. at 24-25, 28. She maintains,

however, that as a pro se litigant the district court should have

searched the entire record to discover whether there was any

evidence that supports her claims. We disagree. A district

court does not have a duty to search for evidence that would

create a factual dispute. See Carmen v. S.F. Unified Sch. Dist.,

237 F.3d 1026, 1031 (9th Cir. 2001) (holding that it would be

“unfair” to the district court to require it “to search the entire

record” if a party fails to “disclose where in the record the

evidence for [the factual claims] can be found”). A district

court lacks the power to act as a party’s lawyer, even for pro

se litigants.

The hazards which beset a layman when he seeks to

represent himself are obvious. He who proceeds pro

se with full knowledge and understanding of the

risks does so with no greater rights than a litigant

represented by a lawyer, and the trial court is under

no obligation to become an “advocate” for or to

assist and guide the pro se layman through the trial

thicket.

Jacobsen v. Filler, 790 F.2d 1362, 1365 n.5 (9th Cir. 1986)

(quoting United States v. Pinkey, 548 F.2d 305, 311 (10th Cir.

1977)). Because Ms. Bias failed to present any evidence in

opposition to Appellees’ motion for summary judgment, she

has failed to demonstrate that there are any genuine issues of

material facts in dispute.

[3] Ms. Bias’s argument that her statement “I shall kill

myself” should be construed as hyperbole also lacks merit. In

support of this contention, Ms. Bias relies on cases where the

statements at issue were political statements that implicated

15344 BIAS v. MOYNIHAN

protected speech. See Watts v. United States, 394 U.S. 705,

706-08 (1969) (holding that the statement, “ ‘If they ever

make me carry a rifle the first man I want to get in my sights

is L. B. J.,’ ” was “political hyperbole” when it was made at

a public rally); Roy v. United States, 416 F.2d 874, 875-76

(9th Cir. 1969) (per curiam) (holding that a marine’s state-

ment: “ ‘I hear the President is coming to the base. I am going

to get him’ ” constituted a threat given the context that it was

common knowledge that President of United States was

expected to arrive at the marine base). These cases are not dis-

positive because Ms. Bias’s letter to Judge Burr does not

implicate political speech. Rather, Ms. Bias wrote the letter to

Judge Burr complaining that the counsel she retained was

ineffectively litigating her case. She ended her letter by stat-

ing that if she lost the case, she would kill herself. A reason-

able person would not construe this statement as hyperbole

because nowhere in the letter does she claim that this state-

ment was a joke or a figure of speech. See, e.g., Lovell v.

Poway Unified Sch. Dist., 90 F.3d 367, 372-73 (9th Cir 1996)

(holding that “a reasonable person” would construe a stu-

dent’s statement to a guidance counselor, “ ‘If you don’t give

me this schedule change, I’m going to shoot you,’ ” as a “true

threat” not entitled to First Amendment protection).

B

Ms. Bias contends that based on the undisputed facts in the

record, Officer Moynihan is not entitled to qualified immunity

from liability under § 1983 because no reasonable officer

could have believed that probable cause existed to detain her

on May 23, 2002, or May 14, 2003, for psychiatric evaluation

pursuant to section 5150. “In deciding whether Defendants

are entitled as a matter of law to qualified immunity, we must

accept the facts in the light most favorable to the Plaintiffs

and then determine whether, in light of clearly established

principles governing the conduct in question, the officers

objectively could have believed that their conduct was law-

BIAS v. MOYNIHAN 15345

ful.” Mena v. City of Simi Valley, 226 F.3d 1031, 1036 (9th

Cir. 2000).

In determining whether Officer Moynihan is entitled to

qualified immunity, we must ask two questions: “ ‘(1) Was

the law governing the officer’s conduct clearly established?

(2) Under that law, could a reasonable officer believe that the

conduct was lawful?’ ” Case v. Kitsap County Sheriff’s Dep’t,

249 F.3d 921, 926 (9th Cir. 2001) (quoting Mena, 226 F.3d

at 1036) (emphasis added); see also Anderson v. Creighton,

483 U.S. 635, 636-37 (1987) (holding that a “law enforcement

officer who participates in [conduct] that violates the Fourth

Amendment may [not] be held personally liable . . . if a rea-

sonable officer could have believed that the [conduct] com-

ported with the Fourth Amendment”); Kennedy v. City of

Ridgefield, 439 F.3d 1055, 1061 (9th Cir. 2006) (explaining

that “it may be difficult for a police officer to determine how

to apply the relevant legal doctrine to the particular circum-

stances he or she faces . . . if an officer makes a mistake in

applying the relevant legal doctrine, he or she is not precluded

from claiming qualified immunity so long as the mistake is

reasonable”).

Only the second prong of the qualified immunity analysis

is at issue in this matter. There is no dispute that Ms. Bias’s

constitutional right to be free from detention without probable

cause was clearly established prior to 2002. See Maag v.

Wessler, 960 F.2d 773, 775 (9th Cir. 1991) (“Although there

are few decisions that discuss the fourth amendment standard

in the context of seizure of the mentally ill, all have recog-

nized the proposition that such a seizure is analogous to a

criminal arrest and must therefore be supported by probable

cause.”).

[4] Under section 5150, an officer may detain any person

the officer determines, “as a result of mental disorder, is a

danger to others, or to himself or herself, or gravely disabled.”

Cal. Welf. & Inst. Code § 5150. If such a determination is

15346 BIAS v. MOYNIHAN

made, the officer may place the person at a county-designated

facility for a “72-hour treatment and evaluation.” Id. The offi-

cer’s determination must be based on probable cause. Id.

Probable cause exists under section 5150 if facts are known

to the officer “that would lead a person of ordinary care and

prudence to believe, or to entertain a strong suspicion, that the

person detained is mentally disordered and is a danger to him-

self or herself.” People v. Triplett, 192 Cal. Rptr. 537, 540-41

(Cal. Ct. App. 1983). To justify the detention, the officer must

point to “specific and articulable facts which, taken together

with rational inferences from those facts, reasonably warrant

his or her belief or suspicion.” Id. at 541. “Each case must be

decided on the facts and circumstances presented to the offi-

cer at the time of the detention and the officer is justified in

taking into account the past conduct, character, and reputation

of the detainee.” Id. (citation omitted).

[5] The undisputed facts demonstrate that a reasonable offi-

cer would have believed there was probable cause to detain

Ms. Bias on or about May 23, 2002. Ms. Bias wrote a letter

to Judge Burr stating that she would kill herself if the court

ruled against her. When Officer Moynihan asked if she was

going to hurt herself, she responded that she would do “what-

ever” she wanted. Ms. Bias also stated that she feared that a

terrorist was trying to kill her. Officer Moynihan also

observed that Ms. Bias appeared depressed and “did not have

family at home to watch her.” It was not unreasonable for

Officer Moynihan to conclude that Ms. Bias might be a threat

to herself or others due to a mental disorder. Thus, he had

probable cause to detain Ms. Bias under section 5150.

[6] The undisputed facts also show that a reasonable officer

would have believed there was probable cause to detain Ms.

Bias on May 14, 2003. Ms. Bias told Officer Moynihan that

her neighbors were “out to get her.” A neighbor reported to

Officer Moynihan that Ms. Bias was constantly accusing her

“of plotting to ruin [Ms. Bias’s] life.” Ms. Bias became com-

bative and began “grabbing” Officer Moynihan, which caused

BIAS v. MOYNIHAN 15347

a bystander to become alarmed. During this encounter, Offi-

cer Moynihan observed that Ms. Bias’s thoughts were discon-

nected and she was visibly angry and appeared agitated.

Officer Moynihan recalled Ms. Bias’s disturbing behavior on

May 23, 2002. See Triplett, 192 Cal. Rptr. at 541 (explaining

that, in determining whether to detain an individual under sec-

tion 5150, the officer may take into account “the past conduct,

character, and reputation of the detainee”). Based on these

observations and circumstances, it was not unreasonable for

Officer Moynihan to conclude on May 14, 2003, that Ms.

Bias might be a threat to herself or to others due to a mental

disorder. Thus, he had probable cause to detain Ms. Bias

under section 5150.

[7] Because the undisputed facts, taken in the light most

favorable to Ms. Bias, demonstrate that a reasonable officer

could have concluded that detaining Ms. Bias did not violate

her federal constitutional rights, the district court did not err

in granting summary judgment on Ms. Bias’s § 1983 claim in

favor of Officer Moynihan. See, e.g., Case, 249 F.3d at 930

(holding that officers were entitled to the defense of qualified

immunity against a § 1983 claim because a reasonable officer

could have believed that arrest was constitutionally permissi-

ble).

III

A

Ms. Bias also alleged Officer Moynihan was liable for

assault and battery, false arrest, illegal imprisonment, inten-

tional infliction of emotional distress, and racial discrimina-

tion under California law. She contends that the district court

erred in granting summary judgment against her regarding

these state law claims.

[8] Ms. Bias’s claims are barred by California Welfare and

Institutions Code section 5278. Section 5278 provides that an

15348 BIAS v. MOYNIHAN

individual authorized to detain a person pursuant to section

5150 “shall not be held either criminally or civilly liable for

exercising this authority in accordance with the law.”5

“[S]ection 5278 means precisely what it says it means, and

that civil liability, whether for battery, [or] for false imprison-

ment . . . is precluded insofar as the detention is ‘in accor-

dance with the law.’ ” See Heater v. Southwood Psychiatric

Ctr., 49 Cal. Rptr. 2d 880, 889 (Cal. Ct. App. 1996).

[9] As discussed above, the undisputed facts demonstrate

that a reasonable officer would have believed there was prob-

able cause to detain Ms. Bias. Officer Moynihan also had

probable cause to detain Ms. Bias on both May 23, 2002, and

May 14, 2003 because she appeared to be a danger to herself

or others due to a mental disorder. See id. at 884, 887-88

(holding probable cause under section 5150 where the appel-

lant was in an “agitated,” “volatile” state and entertained

homicidal and suicidal thoughts); Triplett, 192 Cal. Rptr. at

540-41 (holding probable cause under section 5150 where the

appellant was intoxicated and weeping, and there were signs

of a suicide attempt). Therefore, Ms. Bias’s state law claims

also fail. See Heater, 49 Cal. Rptr. 2d at 889 (holding that per-

sons responsible for a section 5150 detention were entitled to

statutory immunity from a medical malpractice action because

they exercised authority in accordance with section 5150 and

the detention was made with probable cause).

The cases Ms. Bias relies on for her argument that there

was no probable cause to detain her are distinguishable. Ms.

Bias has cited cases where there were genuine issues of mate-

rial fact. Here, there are none. See Barlow v. Ground, 943

F.2d 1132, 1135 (9th Cir. 1991) (finding genuine issue of

material fact where police performed warrantless drawing of

5

Section 5278 provides: “Individuals authorized under this part to detain

a person for 72-hour treatment and evaluation pursuant to Article 1 (com-

mencing with Section 5150) . . . shall not be held either criminally or civ-

illy liable for exercising this authority in accordance with the law.”

BIAS v. MOYNIHAN 15349

blood); Hopkins v. City of Sierra Vista, 931 F.2d 524, 528-29

(9th Cir. 1991) (finding genuine issue of material fact where

police performed warrantless search of an apartment). None

of the cases on which Ms. Bias relies concern a section 5150

detention of a suicidal, depressed, and angry individual.

Ms. Bias also cites United States v. Al-Azzawy, 784 F.2d

890 (9th Cir. 1985), for the proposition that probable cause

alone cannot support her warrantless detention because there

were no “ ‘exigent circumstances’ requiring an immediate

involuntary commitment to a mental health institution.”

Appellant’s Opening Br. at 45. Al-Azzawy is not dispositive

because that decision does not involve a detention under sec-

tion 5150. A detention under section 5150 does not require

proof of exigent circumstances. A detention under section

5150 is warranted if there is probable cause that an individual

is a “danger to others, or to himself or herself.” Cal. Welf. &

Inst. Code § 5150; see also Doe v. Gallinot, 657 F.2d 1017,

1022 (9th Cir. 1981) (explaining that in a section 5150 deten-

tion “[t]he initial 72 hours of detention is justified as an emer-

gency treatment. It is recognized that a probable cause hearing

cannot be arranged immediately.”).

B

Ms. Bias alleges that the district court erred in granting

summary judgment in favor of Officer Moynihan and Police

Chief Kitchen based on racial discrimination under California

Civil Code section 51.7. She failed to present any evidence to

support this allegation. See Gen. Bus. Sys., 699 F.2d at 971

(“A party opposing summary judgment must present some

‘significant probative evidence tending to support the com-

plaint.’ ”) (citation omitted). Therefore, the district court did

not err in granting summary judgment on this claim.

C

Ms. Bias contends that the district court erred because it did

not address all her claims against Police Chief Kitchen. In lib-

15350 BIAS v. MOYNIHAN

erally construing her amended complaint, we agree that Ms.

Bias alleged a cause of action under § 1983 and a state law

negligence claim against Police Chief Kitchen. See Haines v.

Kerner, 404 U.S. 519, 520 (1972) (per curiam) (explaining

that “allegations of the pro se complaint [are held] to less

stringent standards than formal pleadings drafted by law-

yers”).

[10] The district court should have addressed these claims.

It failed to do so. The error is harmless, however, because Ms.

Bias’s § 1983 and state law negligence claims against Police

Chief Kitchen stem from her detentions on May 23, 2002 and

May 14, 2003. Because Ms. Bias has failed to demonstrate

that Officer Moynihan violated her rights under § 1983 and

California law, her claims against Police Chief Kitchen fail.

See Cal. Welf. & Inst. Code § 5278; City of Los Angeles v.

Heller, 475 U.S. 796, 799 (1986) (per curiam) (explaining

that a jury’s finding that an officer inflicted no constitutional

injury on an individual removed any basis for liability against

individual members of the police commission).

[11] For similar reasons, Ms. Bias’s § 1983 claim against

the City of San Leandro also lacks merit because her rights to

be free from an unlawful detention were not violated. See

Heller, 475 U.S. at 799 (explaining that if an officer has not

violated an individual’s constitutional rights, “it is inconceiv-

able that [the city] could be liable”); see also Monell v. Dep’t

of Soc. Serv., 436 U.S. 658, 694 (1978) (holding that munici-

palities can only be liable when a constitutional deprivation

arises from the “execution of a government’s policy or cus-

tom”).

D

[12] Ms. Bias also argues that the district court should have

provided her with notice of summary judgment rules because

she was a pro se litigant. We review questions of law de novo.

Harman v. Apfel, 211 F.3d 1172, 1175 (9th Cir. 2000). The

BIAS v. MOYNIHAN 15351

district court was not required to provide her with notice of

summary judgment rules because Ms. Bias is a pro se non-

prisoner litigant. See Jacobsen, 790 F.2d at 1365-67 (holding

that a district court is not required to give notice of summary

judgment rules to pro se non-prisoners).

IV

Ms. Bias contends that the district court erred in ruling on

the Appellees’ motion for summary judgment before ruling on

her motion to compel the deposition testimony of Officer

Moynihan. Discovery rulings are reviewed for abuse of dis-

cretion. Margolis v. Ryan, 140 F.3d 850, 853 (9th Cir. 1998).

“However, ‘if the trial judge fails to address [a motion to con-

tinue discovery] before granting summary judgment, we

review this omission de novo.’ ” Id. (citation omitted).

Ms. Bias did not argue before the district court that it

should have ruled on her motion to compel before ruling on

the summary judgment motion. Ms. Bias “did not show

exceptional circumstances explaining her failure to do so.”

Brown v. Gen. Tel. Co. of Cal., 108 F.3d 208, 210 n.1 (9th

Cir. 1997). Thus, she has waived her right to present this issue

for the first time on appeal. See id. (holding that a pro se

plaintiff could not raise a new issue on appeal where she

failed to raise the issue before district court).

V

Ms. Bias also claims that the district court abused its dis-

cretion in allowing the Appellees to file notices of errata with-

out considering Ms. Bias’s sur-replies to the motion for

summary judgment. In violation of local rules, Ms. Bias filed

two untimely sur-replies without prior approval after the dis-

trict court had already issued its order on the motion for sum-

mary judgment. See N.D. Cal. Civ. R. 7-3(d) (providing that

once a reply to a motion for summary judgment is filed no

additional papers “may be filed without prior Court approv-

15352 BIAS v. MOYNIHAN

al”); see also Carter v. Comm’r, 784 F.2d 1006, 1008 (9th

Cir. 1986) (explaining that a pro se litigant must “abide by the

rules of the court in which he litigates”).

A district court’s compliance with local rules is reviewed

for “an abuse of discretion.” Hinton v. Pac. Enters., 5 F.3d

391, 395 (9th Cir. 1993). Broad deference is given to a district

court’s interpretation of its local rules. See Christian v. Mat-

tel, Inc., 286 F.3d 1118, 1129 (9th Cir. 2002) (explaining that

the “district court has considerable latitude in managing the

parties’ motion practice and enforcing local rules”).

[13] The Appellees filed their notices of errata before the

district court issued its order granting summary judgment.

The notices did not raise additional substantive issues. They

solely addressed clerical errors. Notices of errata to clarify

clerical errors are substantively different from attempts to file

supplemental briefs unauthorized by local rules. The district

court did not abuse its discretion in failing to consider Ms.

Bias’s sur-replies.

VI

Ms. Bias contends that, in granting summary judgment in

favor of the Appellees, the district court made two errors in

its evidentiary rulings. Evidentiary rulings made in the con-

text of summary judgment motions are reviewed for abuse of

discretion and “can only be reversed if [they were] both ‘man-

ifestly erroneous and prejudicial.’ ” Ballen v. City of Red-

mond, 466 F.3d 736, 745 (9th Cir. 2006) (citation omitted).

A

[14] Ms. Bias argues that the district court should have

excluded four of the Appellees’ exhibits because they were

not authenticated. As to three of the exhibits,6 Ms. Bias did

6

These exhibits include: (1) the May 23, 2002 application for emer-

gency psychiatric detention; (2) Ms. Bias’s letter to Judge Burr; and (3)

the San Leandro Police Department training bulletin.

BIAS v. MOYNIHAN 15353

not object to their admission. Thus, she waived the right to do

so for the first time on appeal. See Pfingston v. Ronan Eng’g

Co., 284 F.3d 999, 1003-04 (9th Cir. 2002) (explaining that

a party must object in the district court to preserve an eviden-

tiary challenge in summary judgment proceedings). Ms. Bias

is correct that the fourth exhibit, the May 14, 2003 application

for emergency psychiatric detention, was not properly authen-

ticated, but such error was harmless.

Rule 56(e) of the Federal Rules of Civil Procedure requires

that a proper foundation be laid for evidence considered on

summary judgment. The documents must be authenticated

and attached to a declaration wherein the declarant is the

“ ‘person through whom the exhibits could be admitted into

evidence.’ ” Hal Roach Studios, Inc. v. Richard Feiner & Co.,

896 F.2d 1542, 1551 (9th Cir. 1990) (quoting Canada v.

Blain’s Helicopters, Inc., 831 F.2d 920, 925 (9th Cir. 1987)).

In Hal Roach Studios, a party’s attorney attached a document

to his declaration that lacked his personal knowledge to the

contents to authenticate it. Id. We held in that matter that the

document was “not per se inadmissible” because another

declarant who had also filed a declaration was a “competent

witness with personal knowledge [who] could authenticate it.”

Id. We concluded that the error in considering the improperly

authenticated exhibit was harmless because “reversing the

district court and remanding on this technicality would be

pointless.” Id. at 1551 n.16. Likewise, the exhibit here should

have been authenticated by Officer Moynihan rather than

through his attorney’s declaration. It would be a pointless

technicality, however, to remand so that Officer Moynihan

could attach it to his declaration.

B

Ms. Bias contends that the district court erred in overruling

her objection to the May 14, 2003 emergency psychiatric

application for detention, identified as Exhibit E to Appellees’

motion for summary judgment, because there are different

15354 BIAS v. MOYNIHAN

versions of the exhibit.7 While the versions are different, they

provide, in material respect, the same information regarding

Officer Moynihan’s observations and conclusions. The appli-

cations are carbon copies given to different entities, including

the police station and the hospital. The only differences

between the copies consist of a fax line, a file number, Ms.

Bias’s handwritten notes on her version, and blocked-out

information concerning the name of Ms. Bias’s neighbor on

the version produced to the hospital. Because such differences

are immaterial, the district court did not abuse its discretion

in relying on the version of the May 14, 2003 application for

emergency psychiatric detention identified as Exhibit E to

Appellees’ motion for summary judgment.

VII

[15] On appeal, the Appellees request that we take judicial

notice of five prior cases in which Ms. Bias was a pro se liti-

gant to counter her argument that she deserves special treat-

ment because of her pro se status. This request is granted.

“[W]e ‘may take notice of proceedings in other courts, both

within and without the federal judicial system, if those pro-

ceedings have a direct relation to matters at issue.’ ” Bennett

v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002)

(alterations in original) (quoting United States ex rel. Robin-

son Rancheria Citizens Council v. Borneo, 971 F.2d 244, 248

(9th Cir.1992)).

7

In her opposition to summary judgment, Ms. Bias objected to Exhibit

E arguing that it was “ ‘different from the one that [Officer Moynihan]

presented [sic] on 6-13-05 at Deposition. Fraud committed.’ ” Appellant’s

Opening Br. at 24. Ms. Bias attached two versions of the May 14, 2003

application for emergency psychiatric detention to her opposition. One of

Ms. Bias’s versions was the same as Exhibit E, but for Ms. Bias’s own

handwriting at the top stating, “Exhibit: Moynihan’s application to San

Leandro hospital to detain Alice Bias.” The other version that Ms. Bias

submitted was the copy given to the hospital.

BIAS v. MOYNIHAN 15355

The Appellees’ request for judicial notice of portions of

Ms. Bias’s deposition, however, is denied. Rule 201(b) of the

Federal Rules of Evidence provides that: “A judicially noticed

fact must be one not subject to reasonable dispute in that it is

either (1) generally known within the territorial jurisdiction of

the trial court or (2) capable of accurate and ready determina-

tion by resort to sources whose accuracy cannot reasonably be

questioned.” The accuracy of the deposition excerpts, which

were never before the district court, could be subject to rea-

sonable dispute.

AFFIRMED.