Avalos v. Baca

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

J. AVALOS, individually and as 

representative of the class defined,

No. 07-56511

Plaintiff-Appellant,

v.  D.C. No.

CV-05-07602-DDP

LEROY BACA; LARRY WALDIE;

OPINION

SHAUN MATHERS,

Defendants-Appellees.



Appeal from the United States District Court

for the Central District of California

Dean D. Pregerson, District Judge, Presiding

Argued and Submitted

August 7, 2009—Pasadena, California

Filed February 24, 2010

Before: Kim McLane Wardlaw and Consuelo M. Callahan,

Circuit Judges, and Ralph R. Beistline,*

Chief District Judge.

Opinion by Judge Callahan

*The Honorable Ralph R. Beistline, United States District Judge for the

District of Alaska, sitting by designation.

2927

2930 AVALOS v. BACA

COUNSEL

Marion R. Yagman (argued) and Joseph Reichmann of Yag-

man & Yagman & Reichman of Venice Beach, California, for

the plaintiff-appellant.

David D. Lawrence, Michael D. Allen, and Justin W. Clark

(argued) of Franscell, Strickland, Roberts & Lawrence, O.C.,

of Glendale, California, for the defendants-appellees.

OPINION

CALLAHAN, Circuit Judge:

J. Avalos was over-detained by the Los Angeles Sheriff’s

Department (“LASD”). He filed this action against officers of

the LASD in their official and individual capacities.1 He

asserts claims pursuant to 42 U.S.C. § 1983 for alleged viola-

tions of his rights under the Fourth and Fourteenth Amend-

ment based on his over-detention and for defendants’ efforts

to procure an involuntary waiver of his civil rights claim

1

The first amended complaint included as defendants six Los Angeles

County Supervisors. The district court dismissed these defendants, and

Avalos does not challenge their dismissal on appeal. The remaining named

defendants are Sheriff Leroy Baca, Undersheriff Larry Waldie, and Lieu-

tenant Shaun Mathers.

AVALOS v. BACA 2931

based on his over-detention. Avalos also alleges claims of

conspiracy and violations of the Racketeer Influenced and

Corrupt Organizations Act, 18 U.S.C. § 1962(a)-(c)

(“RICO”). The district court granted summary judgment in

favor of defendants. We conclude that (1) plaintiff has failed

to show an unconstitutional custom, policy or practice of

over-detention, (2) there is no actionable claim under § 1983

for procuring a coercive or involuntary waiver of a civil rights

claim, (3) the district court properly granted summary judg-

ment for defendants on plaintiff’s conspiracy claims, and (4)

plaintiff has failed to present sufficient evidence of a RICO

violation or any harm to his business or property from the

alleged act of racketeering. Accordingly, the district court’s

grant of summary judgment in favor of defendants is

affirmed.

I

On June 22, 2004, Avalos was arrested on an Orange

County warrant for domestic abuse and transported to the

LASD’s jail. LASD had the responsibility to notify the

Orange County Sheriff’s Department of Avalos’s arrest and

detention. See Cal. Penal Code § 821. LASD failed to notify

the Orange County Sheriff’s Department that Avalos was

available to be picked up. On September 4, 2004 — over two

months later — LASD realized that Avalos had been over-

detained and should be released.

On that day, Avalos was allowed to change into his per-

sonal clothes and was brought into an empty room. After he

entered the room, Deputy Sheriff Wilson came in wearing

street clothing and a sheriff’s badge, and sat down across a

desk from Avalos. According to Avalos, Wilson took out

some papers. Avalos does not speak English, and claims that

when he told Wilson he did not understand what was in the

papers, Wilson only showed him where to sign. Avalos signed

the papers, but asserts that he did not understand that the

2932 AVALOS v. BACA

papers were an offer to settle his claim for over-detention for

$500.

According to the defendants, when Wilson realized that

Avalos did not speak English, he enlisted Deputy Yvonne

Zarate to translate. Deputy Zarate stated that she spoke to

Avalos, learned that he earned $500 a week in his janitorial

job, and discussed the waiver of his claim for over-detention

in exchange for $500. Avalos was released later on September

4, 2004, and on September 9, 2004, two LASD officers, in an

unmarked car and wearing street clothes, went to visit Avalos

at his home. Avalos alleges that they telephoned his home,

spoke to his 13-year-old daughter, and told her that Avalos

should come outside. Avalos went outside alone. He states

that neither of the officers, Wilson and Deputy Lam, spoke

Spanish, but they told him to sign a “Release and Settlement

Agreement” and gave him a check for $500. Avalos alleges

that the officers did not explain the documents to him and he

did not understand what he was signing. Avalos signed the

documents, accepted the check, and subsequently cashed the

check.

Avalos’s First Amended Complaint (“FAC”) was filed on

April 3, 2006, at a time when several other related “over-

detention” cases were pending before the district court judge.

See Mortimer v. Baca, 478 F. Supp. 2d 1117 (C.D. Cal.

2007), aff’d Mortimer v. Baca, ___ F.3d ___ (9th Cir. Feb. 5,

2009) (“Mortimer II”). The FAC alleges four claims for relief.

In his first claim, Avalos alleges that defendants violated his

Fourth and Fourteenth Amendment rights by causing him to

be over-detained and by causing him to involuntarily waive

his civil rights claim against defendants. Avalos’s second

claim alleges that defendants engaged in a conspiracy to cause

Avalos’s over-detention and his involuntary waiver of his

over-detention claim. In claims three and four, Avalos alleges

that defendants conspired to and did engage in a pattern of

racketeering activity in violation of RICO. Avalos also sought

to represent a class of more than a hundred individuals shar-

AVALOS v. BACA 2933

ing the following characteristics: (1) they were over-detained

by the LASD; (2) their over-detentions were recognized by

LASD officials; and (3) they were “fraudulently, oppres-

sively, extortionately, or with threats [ ] duped into compro-

mising their monetary claims for sums far less than those

claims are worth.”2

In September 2006, Avalos moved for partial summary

adjudication. On October 16, 2006, the district court granted

plaintiff’s motion and determined that he had been over-

detained and that the defendants were potentially liable. In

March 2007, the defendants moved for summary judgment.

On August 24, 2007, the district court granted defendants’

motion for summary judgment in its entirety. Avalos v. Baca,

517 F. Supp. 2d 1156 (C.D. Cal. 2007). Avalos filed a timely

notice of appeal from that order.

II

We review the district court’s grant of summary judgment

de novo and “must determine, viewing the evidence in the

light most favorable to the non-moving party, whether there

are any genuine issues of material fact and whether the district

court correctly applied the relevant substantive law.” Guegara

v. Allstate Ins. Co., 237 F.3d 987, 992 (9th Cir. 2001). The

moving party has “the burden of showing the absence of a

genuine issue as to any material fact, and for these purposes

the material lodged must be viewed in the light most favor-

able to the opposing party.” Adickes v. S. H. Kress & Co., 398

U.S. 144, 157 (1970).

III

Through this lens, we first consider plaintiff’s challenges to

the district court’s grant of summary judgment on his over-

2

Because Avalos did not move for class certification, the district court

treated the FAC as an individual suit against the defendants.

2934 AVALOS v. BACA

detention claim and on his involuntary waiver claim. We then

explain that the failure of plaintiff’s substantive claims defeats

his claims of conspiracy. Finally, we address plaintiff’s chal-

lenges to the district court’s grant of summary judgment on

his RICO claims.

A. The district court properly granted summary judg-

ment for defendants on plaintiff’s claims for over-

detention.

There is no question that Avalos was over-detained. How-

ever, in order to recover from the defendants under 42 U.S.C.

§ 1983, Avalos must show either that they personally partici-

pated in his over-detention or that it was the result of a pattern

or custom on their part. Although Avalos sued the defendants

in both their official and individual capacities, and the district

court granted defendants summary judgment in both capaci-

ties, we need only address their official capacity liability.3

[1] Pursuant to Monell v. Department of Social Services,

436 U.S. 658, 694 (1978), a public entity defendant sued in

his official capacity cannot be held liable under a theory of

respondeat superior; rather, a defendant must act as a law-

3

The district court noted that individual liability under § 1983 arises

only upon a showing of personal participation by the defendant, citing

Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) and Fayle v. Stapley,

607 F.2d 858, 862 (9th Cir. 1979). The court noted that Avalos had pre-

sented no evidence that any of the defendants had any direct contact with

him or had any actual knowledge of his incarceration. Avalos, 517 F.

Supp. at 1168.

Appellant has abandoned any challenge to the grant of summary judg-

ment against the defendants in their individual capacity by failing to raise

the issue in his briefs. See Fed. R. App. P. 29(a)(9)(A); Rattlesnake Coali-

tion v. U.S. E.P.A. 509 F.3d 1095, 1100 (9th Cir. 2007) (commenting that

“[i]ssues raised in an opening brief but not supported by argument are con-

sidered abandoned” and reiterating that we “will not ordinarily consider

matters on appeal that are not specifically and distinctly raised and argued

in the appellant’s opening brief” (citation omitted)).

AVALOS v. BACA 2935

maker or one “whose edicts may fairly be said to represent

official policy.” Id. at 693. The district court explained plain-

tiff’s resulting burden as follows:

There are three ways to meet the policy, practice, or

custom requirement for municipal liability under

§ 1983: (1) the plaintiff may prove that a public

entity employee committed the alleged constitutional

violation pursuant to a formal policy or a longstand-

ing practice or custom, which constitutes the stan-

dard operating procedure of the local government

entity; (2) the plaintiff may establish that the individ-

ual who committed the constitutional tort was an

official with “final policy-making authority” and that

the challenged action itself thus constituted an act of

official government policy; or (3) the plaintiff may

prove that an official with final policy-making

authority ratified a subordinate’s unconstitutional

decision or action . . . . An unconstitutional policy

need not be formal or written to create municipal lia-

bility under § 1983; however, it must be so perma-

nent and well settled as to constitute a custom or

usage with the force of law. Adickes v. S.H. Kress &

Co., 398 U.S. 144, 167-68, . . . (1970). Furthermore,

“[p]roof of a single incident of unconstitutional

activity is not sufficient to impose liability under

Monell, unless proof of the incident includes proof

that it was caused by an existing, unconstitutional

municipal policy, which policy can be attributed to

a municipal policy maker.” Oklahoma City v. Tuttle,

471 U.S. 808, 823-24, . . . (1985).

Avalos, 517 F. Supp. 2d at 1162.

Defendants, in moving for summary judgment, asserted

that Avalos had failed to show that they had a policy, practice

or custom of over-detaining inmates. They argued that the dis-

trict court’s grant of summary judgment in Mortimer, 478 F.

2936 AVALOS v. BACA

Supp. 2d. 1171, foreclosed plaintiff’s over-detention claim

because it held that LASD did not maintain a policy, practice

or custom of over-detaining inmates. Avalos, 517 F. Supp. 2d

at 1163.

The district court agreed that the existence of a policy or

practice of over-detention was raised in Mortimer, and that

Avalos “may only defeat summary judgment if he can distin-

guish this case from Mortimer.”4 Id. The district court deter-

mined that Avalos had failed to do so. First, it found that the

evidence proffered by Avalos did not distinguish his case

from Mortimer.5 Second, the court noted that the number of

incidents of over-detention had been substantially reduced

over the years. Id. at 1164-65. Third, the court observed that

any inference of an unconstitutional policy or practice was

weakened further by the steps taken by LASD to reduce the

number of over-detentions.6 Id. at 1165-66. The district court

4

The same attorneys represented Avalos and Mortimer both in the dis-

trict court and on appeal before the Ninth Circuit.

5

The district court explained:

The LASD processes tens of thousands of detainees every year.

See Mortimer, 478 F. Supp. 2d at 1179. Between November 2002

and May 2005, the LASD released nearly 51,000 persons,

roughly 20,000 persons per year. Id. Neither party has submitted

evidence in this case as to the total releases applicable to the per-

tinent period. However, if the Court applies the estimated number

of annual over-detentions to the estimated number of annual

releases, it appears that roughly 0.4% of persons released by

LASD were over-detained, a percentage not readily distinguish-

able from the approximately 0.1% of over-detentions apparent in

Mortimer. Furthermore, plaintiff has provided no analysis in their

papers as to why minimal numerical differences between Morti-

mer and this case are material or amount to an unconstitutional

custom, policy, or practice on the part of defendants. Id. . . . The

numbers themselves do not bespeak unreasonableness.

Avalos, 517 F. Supp. 2d at 1164 (footnote omitted).

6

In Mortimer II, ___ F.3d ___, (slip op. at 2091-92) we noted that these

steps

AVALOS v. BACA 2937

concluded that “plaintiff has not met his burden to ‘do more

than simply show that there is some metaphysical doubt as to

the material facts.’ ” Id. at 1166 (quoting Matsushita Elec.

Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586

(1986)).

[2] We agree that Avalos has failed to present evidence

from which a reasonable jury could find that defendants had

a policy, practice or custom of over-detaining inmates. Avalos

seeks to distinguish Mortimer on the ground that it concerned

a different class of over-detained inmates. In addition, Avalos

argues that the existence of a custom or policy does not

depend on a proportionality analysis, but “on the traditional

legal principles that define a custom, to wit, whether happen-

ings are sufficiently persistent that one may say a custom

exists.” He argues that a deficient training program in the face

of continuing constitutional violations may give rise to a

claim of deliberate indifference. Whatever the merit of such

arguments in the abstract, here, they are overwhelmed by the

evidence of the steps taken by LASD to reduce the number of

over-detentions and the effectiveness of those steps. Here, as

included the “In-Court Release” program, which began in 2001.

This program allows inmates to be released at the courthouse

immediately following a judge’s release order without returning

to the jail, provided that a prompt check of the database does not

reveal any other warrants or holds. Another measure was the

“Greenband” program in which inmates who could not be

released at the courthouse due to a need to give a DNA sample

or have a medical examination were given a green wristband and

returned to the Inmate Reception Center (“IRC”) only briefly to

perform the procedure before release. A third measure was the

Early Release Program, which begins the process for releasing

inmates 72 hours before the expiration of their sentences, and

often resulted in their early release.

In addition, the LASD created a database called the “Over-Detention and

Erroneous Release” tracking system (“ODER”) to keep track of recorded

potential over-detentions. Mortimer II ___ F.3d at ___ (slip op. at 2092).

2938 AVALOS v. BACA

in Mortimer II, “given the LASD’s many affirmative efforts

to remedy the problem, the evidence in the record will not

support a finding of a policy of deliberate indifference.” ___

F.3d at ___ (slip op. at 2098). Accordingly, the district court

properly granted summary judgment against Avalos on his

claim of over-detention.

B. Avalos cannot state a cognizable claim for his invol-

untary waiver.

Despite the reduced number of over-detentions by the

LASD, Avalos alleges that “rather than implementing a pro-

cedure designed to prevent or detect lengthy over-detentions,

the defendants instead have utilized a coercive in-custody set-

tlement program that concentrates on forced, coercive in-

custody settlements of over-detention claims for paltry sums

of money.” He cites Jones v. Tuber, 648 F.2d 1201 (9th Cir.

1981), in support of his contention, noting that the methods

employed there are similar to the LASD’s practices and that

our determination in that case that the waiver signed by the

detainee was not voluntary is applicable to this case.

Avalos alleges that he did not understand what he was

asked to sign and that the procedure followed in his case was

a deliberate policy designed to result in settlement that was

“neither fair nor reasonable, as required by written Jail poli-

cy.” He argues that this “long-standing practice of coercing

inmates into settling their Section 1983 claims for token

amounts under coercive and fraudulent circumstances consti-

tutes a ‘custom or usage with the force of law’ ” as defined

in Adickes, 398 U.S. at 168. Avalos concludes that the “coer-

cive in-custody settlement process also is evidence of deliber-

ate indifference because instead of solving the continuing

problem of over-detaining inmates, it is cheaper to settle their

over-detention claims for a pittance.”

Plaintiff’s claim for his involuntary waiver of his right to

damages due to his over-detention is not persuasive as a mat-

AVALOS v. BACA 2939

ter of law or of fact. The only authority cited by Avalos for

his proposition is Jones, 648 F.2d 1201, but our opinion in

Jones does not support his assertion of a constitutional viola-

tion.

[3] Jones filed a civil rights action against Multnomah

County officials seeking damages for a beating administered

while he was in the county jail awaiting sentencing. Id. at

1202. The threshold issue was the validity of a release Jones

had signed in exchange for $500.7 Id. The district court

granted summary judgment and we reversed. We explained

that “[a] release of claims under section 1983 is valid only if

it results from a decision that is voluntary, deliberate, and

informed.” Id. at 1203. Citing the approach to maritime

releases, we held that a party seeking to rely on a release in

a § 1983 action has the burden of proving its validity. Id. at

1203-04. We concluded that “objective indications of coer-

cive pressures and a lack of understanding” precluded a grant

of summary judgment, and noted that on remand the district

court must consider “the presence of a noncoercive atmo-

sphere for the execution of the release, or how significant is

the absence of such an atmosphere.” Id. at 1204.

7

Our opinion set forth the undisputed facts as follows:

On the night of July 3, 1976, Jones was taken from his cell,

stripped, gagged, bound, chained to a wall, hosed with cold water

and beaten with a night stick. The incident lasted 3 to 5 hours. He

was then replaced in a special segregation facility and held there

for nineteen days until, on July 22, he was escorted without

notice to an interview room to meet with a deputy county counsel

and a claims adjuster. The subject of the meeting was whether or

not Jones would accept $500 for a release in favor of the county

and the individual defendants for all claims arising from the beat-

ing and mistreatment on the night of July 3.

At the conclusion of the meeting Jones accepted the release and

executed the documents presented to him.

Jones, 648 F.2d at 1202.

2940 AVALOS v. BACA

[4] We agree with Avalos that Jones establishes the criteria

for evaluating the validity of his waiver of his over-detention

claim, but more importantly, we agree with the district court

that the case “does not stand for the proposition . . . that there

is an actionable claim under 42 U.S.C. § 1983 for causing an

involuntary waiver of a civil rights claim.” Avalos, 517 F.

Supp. 2d at 1168-69. The district court explained:

The logic behind this conclusion is simple. If plain-

tiff were to bring an individual civil rights claim for

his over-detention against defendants, defendants

could raise the affirmative defense that the claim was

barred by the waiver. Plaintiff would then argue that

the waiver was involuntary. As an affirmative

defense, it is defendants’ burden to prove that plain-

tiff’s waiver met Jones’ standard of “voluntary,

deliberate and informed.” See Jones, 648 F.2d at

1203. If defendants did not meet this burden, in addi-

tion to damages for his over-detention, plaintiff

would be entitled to attorneys’ fees. Plaintiff could

recover whatever additional attorneys’ [fees] he

incurred in arguing the waiver issue. But the under-

lying constitutional right at issue is not to be free of

a coercive waiver, it is to be free when one is entitled

to be released.

Id. at 1169.

[5] Because a coerced waiver does not extinguish a detain-

ee’s claim for over-detention or false imprisonment, there is

no “freestanding constitutional right to be free of a coercive

waiver.” Id. Whether a waiver was “coerced” is a factual issue

that is properly considered — as it was in Jones — if and

when a defendant raises it as an affirmative defense to a

detainee’s claim for damages. See Salmeron v. United States,

724 F.2d 1357, 1362 (9th Cir. 1983) (holding that “[w]hether

such a release was voluntarily executed is a question of fact

to be determined from all the circumstances”). Accordingly,

AVALOS v. BACA 2941

although a person may well have a due process right not to be

held to a coerced settlement or waiver, this does not mean that

a government entity in seeking a settlement of waiver violates

a person’s constitutional rights if its efforts are heavy-handed.

[6] Indeed, the proceedings in this case reinforce our deter-

mination that Avalos has not presented a constitutional right

to be free from a coerced waiver. To the extent that the

alleged improper purpose of the waiver was to prevent Avalos

from seeking a full recovery on his claim for over-detention,

it failed. Avalos did file a lawsuit seeking damages for his

over-detention and the district court ruled on its merits,

despite defendants’ contention that his waiver was not

coerced. Thus, unlike the situations presented in cases such as

Phillip v. Hust, 588 F.3d 652 (9th Cir. 2009) (alleging that a

librarian’s failure to allow an inmate to use a comb-binding

machine caused his petition for certiorari to be late), here the

defendants’ actions did not interfere with plaintiff’s access to

the courts.8 Furthermore, as the court considered his claims on

the merits, Avalos would be hard pressed to show any com-

pensable damages from defendants’ allegedly improper

efforts to procure a waiver. We conclude that the district court

properly granted summary judgment in favor of defendants on

plaintiff’s coerced settlement claims.

8

Our determination is consistent with the Supreme Court’s position in

Christopher v. Harbury, 536 U.S. 403 (2002), commenting that a claim of

access to the courts is ancillary to the underlying claim. The Court

explained:

While the circumstances thus vary, the ultimate justification for

recognizing each kind of claim is the same. Whether an access

claim turns on a litigating opportunity yet to be gained or an

opportunity already lost, the very point of recognizing any access

claim is to provide some effective indication for a separate and

distinct right to seek judicial relief for some wrong. However

unsettled the basis of the constitutional right of access to courts,

our cases rest on the recognition that the right is ancillary to the

underlying claim, without which a plaintiff cannot have suffered

injury by being shut out of court.

Id. at 414-15.

2942 AVALOS v. BACA

[7] Finally, even were we to determine that Avalos could

assert a constitutional claim to be free from a coerced waiver,

in light of the dearth of precedent so holding, the defendants

would be entitled to qualified immunity under the second

prong of the test set forth in Saucier v. Katz, 533 U.S. 194,

201 (2001) (holding that “[i]f the law did not put the officer

on notice that his conduct would be clearly unlawful, sum-

mary judgment based on qualified immunity is appropriate”);

see also Pearson v. Callahan, 129 S. Ct. 808, 816 (2009)

(noting that if the plaintiff establishes a violation of a consti-

tutional right, “the court must decide whether the right at

issue was ‘clearly established’ at the time of defendant’s

alleged misconduct”).

C. Plaintiff’s claim of conspiracies to over-detain and

to coerce settlement was properly dismissed

because his underlying claims for over-detention

and coerced settlement were properly dismissed.

The district court cited two grounds to support its grant of

summary judgment for defendants on Avalos’s conspiracy

claim. First, it noted that because it had “already determined

that plaintiff’s involuntary waiver claim fails as a matter of

law,” defendants’ actions in procuring his waiver would not

support a conspiracy claim. Avalos, 517 F. Supp. 2d at 1169.

Addressing the allegations of a conspiracy to over-detain, the

district court noted that the elements to establish a cause of

action under § 1983 were: “(1) the existence of an express or

implied agreement among the defendant officers to deprive

him of his constitutional rights, and (2) an actual deprivation

of those rights resulting from that agreement.” Id. at 1169-70

(quoting Ting v. United States, 927 F.2d 1505, 1512 (9th Cir.

1991)). Applying this standard, the district court’s second

ground for granting summary judgment was that Avalos “has

presented no evidence to support the existence of an agree-

ment or meeting of the minds between defendants, whether

the agreement be specific or inferred from conduct, nor does

AVALOS v. BACA 2943

he provide any evidence that the deprivation of his right was

the result of such an agreement.” Id. at 1170.

[8] We affirm the district court’s grant of summary judg-

ment for defendants on plaintiff’s conspiracy claim. Although

Avalos maintains that defendants had a deliberately indiffer-

ent custom of over-detaining inmates, he does not really chal-

lenge the district court’s findings that there was no evidence

of an agreement or that his over-detention was the result of

such an agreement. Moreover, the district court properly con-

cluded that its rejection of plaintiff’s involuntary waiver claim

as a matter of law eviscerated his conspiracy claim. See Cas-

settari v. Nevada County, Cal., 824 F.2d 735, 739 (9th Cir.

1987) (noting that “[t]he insufficiency of these allegations to

support a section 1983 violation precludes a conspiracy claim

predicated upon the same allegations”); see also Landrigan v.

City of Warwick, 628 F.2d 736, 742 (1st Cir. 1980) (noting

that “[i]n order to state an adequate claim for relief under sec-

tion 1983, plaintiff must allege and prove both a conspiracy

and an actual deprivation of rights; mere proof of a conspiracy

is insufficient to establish a section 1983 claim” (internal quo-

tation marks and citation omitted)).

D. The district court properly granted defendants

summary judgment on plaintiff’s claims under

RICO.

Avalos alleges that he “has a cognizable property interest

in his Section 1983 cause of action for violation of his Four-

teenth Amendment constitutional rights based on the 73-day

over-detention and therefore has standing to assert his RICO

claim.” He further asserts that the record is replete with evi-

dence that “through fraud and duress, the defendants had a

pattern of fraudulently extracting in-custody settlements for

negligible amounts, and of defeating, or attempting to defeat,

potential Section 1983 lawsuits.”

The district court set forth the criteria for a RICO claim as

follows:

2944 AVALOS v. BACA

[RICO] prohibits, among other activities, the con-

ducting of an enterprise’s affairs through racketeer-

ing activity. 18 U.S.C. § 1962(c). A prima facie

RICO case requires: (1) conduct (2) of an enterprise

(3) through a pattern (4) of racketeering activity.

Miller v. Yokohama Tire Corp., 358 F.3d 616, 620

(9th Cir. 2004). Furthermore, there must be an injury

to a specific business or property interest. Diaz v.

Gates, 420 F.3d 897, 898 (9th Cir. 2005). The plain-

tiff must also demonstrate that defendants engaged

in at least two acts of racketeering activity as defined

in 18 U.S.C. § 1961. Bowen v. Oistead, 125 F.3d

800, 806 (9th Cir. 1997). Moreover, RICO requires

as a threshold for standing an injury to “business or

property.” 18 U.S.C. § 1964(c). “Without a harm to

a specific business or property interest — a categori-

cal inquiry typically determined by reference to state

law — there is no injury to business or property

within the meaning of RICO.” Diaz, 420 F.3d at 900.

Section 1962(d) prohibits anyone from conspiring

to violate the provisions of 18 U.S.C. § 1962(c).

Under § 1962(d), plaintiff must show that defendants

objectively manifested their agreement to participate

in a racketeering enterprise through the commission

of two or more predicate crimes. Baumer v. Pachl,

8 F.3d 1341, 1346-47 (9th Cir. 1993).

Avalos, 517 F. Supp. 2d at 1170.

The district court proceeded to grant defendants summary

judgment on Avalos’s RICO claims because: (1) although

“plaintiff alleges he has suffered lost wages and economic

opportunities due to his over-detention, plaintiff has presented

no evidence to support this assertion”; (2) “plaintiff has pre-

sented no evidence of a ‘pattern’ of ‘racketeering activity’ by

any of the defendant officials sued in their official or individ-

ual capacities”; and (3) as to plaintiff’s RICO conspiracy

AVALOS v. BACA 2945

claim, “plaintiff has not presented any evidence of a ‘conspir-

acy’ or ‘agreement’ among defendants to over-detain him.”

Id. at 1171-72. The district court concluded, citing Celotex

Corp v. Catrett, 477 U.S. 317, 323 (1986), that Avalos had

not met his burden at the summary judgment stage of present-

ing evidence to show a genuine issue for trial. Id.

On appeal, Avalos argues that he has standing to assert a

RICO claim because we look to state law to determine what

is a property right and California law provides that a cause of

action to recover money in damages is a form of personal

property. See Diaz, 420 F.3d at 899 (stating that “[w]e believe

the best-reasoned approach is that of Doe v. Roe, 958 F.2d

763 (7th Cir. 1992), under which we typically look to state

law to determine ‘whether a particular interest amounts to

property,’ id. at 768.”); see also Parker v. Walker, 5 Cal. App.

4th 1173, 1182-83 (citing Cal. Civil Code §§ 663 and 953,

and holding that a “cause of action to recover money in dam-

ages, as well as money recovered in damages, is a chose in

action and therefore a form of personal property”).9

[9] The district court’s grant of summary judgment for the

defendants on plaintiff’s RICO claims was proper for at least

two reasons. First, a prima facie RICO case requires a show-

ing of conduct of an enterprise through a pattern of racketeer-

ing activity. Miller, 358 F.3d at 620. Here, the determination

that defendants did not engage in a custom, policy or practice

of over-detention precludes Avalos from alleging any predi-

cate act concerning over-detention that might support a find-

ing of a pattern of racketeering activity. This conclusion is

reinforced by plaintiff’s failure to allege that the defendants

9

Avalos also claims that the district court erred in granting summary

judgment against him on his RICO claims because (1) the district court

misconstrued his burden at the summary judgment stage, (2) qualified

immunity is not available to defendants on RICO claims, and (3) his FAC

adequately states RICO claims. These contentions are not discussed as

they do not affect our reasons for affirming the district court.

2946 AVALOS v. BACA

had any personal involvement in their over-detentions. Simi-

larly, as there is no constitutional right against defendants

seeking settlements or waivers, defendants in procuring

Avalos’s waiver did not commit any predicate act that might

support a finding of a pattern of racketeering activity.

[10] Second, in order to state a RICO claim, a plaintiff

must show harm to a specific business or property interest.

Diaz, 420 F.3d at 900 (holding that “[w]ithout a harm to a

specific business or property interest . . . there is no injury to

business or property within the meaning of RICO”). Avalos

has failed to do so. He has not proffered any evidence of spe-

cific injury to a business, and it appears that he cannot do so

because he admits that he is not a United States citizen and

does not have a work visa. Avalos may be correct in contend-

ing that his right to judicial action could be considered “prop-

erty” under California law, but he cannot show any harm

because the allegedly coerced waiver, in fact, did not deny

him access to the courts. In other words, even if the right to

a judicial proceeding is a property right under California law,

Avalos suffered no “harm” to that right because he was able

to file his claim for over-detention (and coerced settlement) in

the district court.

IV

There appears to be no doubt that Avalos was improperly

over-detained by the LASD. In this action, however, he seeks

damages from the Sheriff and two officers of the LASD based

on 42 U.S.C. § 1983 and RICO. The district court properly

concluded that Avalos failed to make a prima facie showing

for relief under these statutes. He failed to show that the offi-

cers had any personal involvement in his over-detention or

that his over-detention was the result of any custom, policy or

practice of the LASD. Also, Avalos failed to show that he had

any constitutional right against the LASD seeking a settle-

ment of his claim for over-detention. In addition, he has not

demonstrated any cognizable injury from the allegedly

AVALOS v. BACA 2947

coerced waiver of his right to seek damages due to his over-

detention. Finally, on plaintiff’s RICO claims, the district

court properly determined that Avalos had failed to allege any

improper acts by the named defendants that could be con-

strued as constituting a pattern of racketeering activity and he

failed to show any harm to a business or property interest. For

these reasons, the district court’s grant of summary judgment

in favor of defendants and against the plaintiff is

AFFIRMED.