The opinion
FILED
NOT FOR PUBLICATION JUN 05 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MARY JOHNSON; JAMES JOHNSON, No. 11-35528
Plaintiffs - Appellants, D.C. No. 4:09-cv-00031-RRB
v.
MEMORANDUM *
RON WALL; JESS CARSON; BRUCE
BARNETT,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, Chief District Judge, Presiding
Argued and Submitted May 24, 2013
Fairbanks, Alaska
Before: TASHIMA, TALLMAN, and N.R. SMITH, Circuit Judges.
Appellants Johnson brought suit against officer-defendants under 8 U.S.C. §
1983 for alleged judicial deception during the acquisition of a search warrant,
which resulted in the search of their home. The district court granted summary
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
judgment in favor of the officer-defendants on the basis of qualified immunity.
We review the district court’s decision de novo. Chism v. Washington, 661 F.3d
380, 386 (9th Cir. 2011).
For the Johnsons’ judicial deception claim to survive a motion for summary
judgment on the grounds of qualified immunity, they “must 1) make a substantial
showing of [the officers’] deliberate falsehood or reckless disregard for the truth
and 2) establish that, but for the[ir] dishonesty, the [challenged search] would not
have occurred.” Chism, 661 F.3d at 386 (quoting Liston v. Cnty. of Riverside, 120
F.3d 965, 973 (9th Cir. 1997). Here, not only did they fail to make a substantial
showing that the officers made deliberate falsehoods or displayed a reckless
disregard for the truth, but there was also sufficient evidence remaining to establish
probable cause even after excising the facts in dispute. See Liston, 120 F.3d at 972
(citing Franks v. Delaware, 438 U.S. 154 (1978)). The district court did not err
when it granted defendants’ motions for summary judgment.
Additionally, we lack jurisdiction to review the issue of attorney’s fees. “In
a civil case . . . the notice of appeal required by Rule 3 must be filed with the
district court within 30 days after entry of the judgment or order appealed from.”
Fed. R. App. P. 4(a)(1)(A). “[A] supplemental notice of appeal is required for us
to have jurisdiction over an attorneys’ fees issue that becomes final subsequent to
2
the initial notice of appeal.” Hunt v. City of Los Angeles, 638 F.3d 703, 719 (9th
Cir. 2011) (citation and emphasis omitted); see also Whitaker v. Garcetti, 486 F.3d
572, 585 (9th Cir. 2007) (“A party wishing to challenge the [later] attorney fees
decision ‘must file a notice of appeal, or an amended notice of appeal’ specifying
its appeal of that decision.”). No further action was taken here after the district
court ruled on attorney’s fees.
We AFFIRM the district court’s decision dismissing appellants’ claim on
summary judgment and DISMISS the appeal of the district court’s award of
attorney’s fees for lack of appellate jurisdiction.
3