Appendix — Herb Hallman Chevrolet v. Nash-Holmes

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HERB HALLMAN CHEVROLET, INC., a

Nevada corporation; JOHN STANKO,

Plaintiffs-Appellants,

No. 97-15275

v.

D.C. No. CV-94-00333-DWH

DOROTHY NASH-HOLMES; DONALD

COPPA; KARL HALL; FRANK LANDES;

JOHN J. LONG; MICHAEL NEVILLE;

WASHOE COUNTY,

Defendants-Appellees.

JERRY VAN DER HOEVEN; JAMES

BAYUS; STAN BONDICK; CRAIG

CONRAD; TOM GEORGE; RON HALL:

JOHN JULIAN; JUDY LIMON; DAN

MAHONEY; EDWARD MATTS; RON

SHERK; GREG STEWARD; ALEX

VARGO; CLIFFORD SOUZA,

No. 97-15323

Plaintiffs-Appellants,

D.C. No. CV-95-00090-DWH

V.

DONALD COPPA, individually and in

his official capacity as Assistant OPINION

District Attorney for Washoe

County; DOROTHY NASH-HOLMES,

individually and in her official

Capacity as District Attorney for

App. 1

Washoe County; FRANK D.

LANDES, individually and in his

official capacity as Investigator

with the Washoe County Office of

the District Attomey; JOHN LONG,

individually and in his official

capacity as Investigator with the

Washoe County Office of the

District Attorney; MICHAEL

NEVILLE, individually and in his

official capacity as Investigator

with the Washoe County Office of

the District Attomey; COUNTY OF

WASHOE, a political subdivision of

the State of Nevada,

Defendants-Appellees.

JERRY VAN DER HOEVEN; JAMES

BAYUS; STAN BONDICK; CRAIG

CONRAD; TOM GEORGE; RON HALL;

JOHN JULIAN; JUDY LIMON; DAN

MAHONEY; EDWARD MATTS; RON

SHERK; GREG STEWARD; ALEX

VARGO; CLIFFORD SOUZA,

No. 97-16960

Plaintiffs-Appellants,

D.C. No. CV-95-00090-DWH

v.

DONALD COPPA, individually and in

his official capacity as Assistant

District Attorney for Washoe

County, DOROTHY NASH-HOLMES,

individually and in her official

capacity as District Attorney for

Washoe County; FRANK D.

App. 2

LANDES, individually and in his

official capacity as Investigator

with the Washoe County Office of

the District Attorney; JOHN LONG,

individually and in his official!

capacity as Investigator with the

Washoe County Office of the

District Attorney; MICHAEL

NEVILLE, individually and in his

official capacity as Investigator

with the Washoe County Office of

the District Attorney; COUNTY OF

WASHOE, a political subdivision of

the State of Nevada,

Defendants-Appellees.

HERB HALLMAN CHEVROLET, INC., a

Nevada corporation; JOHN STANKO,

Plaintiffs-Appellants,

No. 97-16976

V.

D.C. No. CV-94-00333-DWH

DOROTHY NASH-HOLMES; DONALD

COPPA; KARL HALL; FRANK LANDES;

JOHN J. LONG; MICHAEL NEVILLE;

WASHOE COUNTY,

Defendants-Appellees.

Appeals from the United States District Court

for the District of Nevada

David Warner Hagen, District Judge, Presiding

Argued and Submitted

January 12, 1999--San Francisco, California

Filed March 3, 1999

App. 3

Before: Joseph T. Sneed, A. Wallace Tashima, and

Barry G. Silverman, Circuit Judges.

Opinion by Judge Sneed

COUNSEL

Nathan Z. Dershowitz, Dershowitz & Eiger, New York, New

York, for the plaintiffs-appellants.

Larry R. Hicks, McDonald Carano Wilson McCune Bergin

Frankovich & Hicks, Reno, Nevada; Melanie Foster, Washoe

County District Attorney, Reno, Nevada, for the

defendants-appellees.

OPINION

SNEED, Circuit Judge:

Herb Hallman Chevrolet, Inc.--a Reno automobile dealership--its

owner, John Stanko ("Stanko"), and employees (collectively

"Hallman Chevrolet") appeal from a grant of summary judgment

by Judge David Warner Hagen of the United States District

Court for the District of Nevada, in a consolidated 42 U.S.C. §

1983 civil rights action alleging prosecutorial misconduct by

Washoe County, three county prosecutors and three county

investigators (collectively "Washoe prosecutors"). On appeal,

Hallman Chevrolet argues that the Washoe prosecutors are not

entitled to immunity from suit for deliberately omitting facts and

making false statements in support of two search warrants and

impaneling a Washoe County grand jury without probable cause.

Hallman Chevrolet attributes these constitutional violations to

the individual defendants and to Washoe County because, they

contend, the Washoe prosecutors were acting pursuant to

App. 4

Washoe County policy. Finally, Hallman Chevrolet argues that

the district court erred in awarding defamation-related attorneys’

fees to the Washoe prosecutors.

We aff.:m the district court's ruling against Hallman Chevrolet

on the merits, but reverse its award of attorneys’ fees.

I.

BACKGROUND

In late December 1990, Rick Wells complained to the Reno

Police Department that Hallman Chevrolet appropriated his $600

factory rebate, due on a new car purchase, by forging his

Signature on a rebate assignment form. Wells recounted his

dealings with Hallman Chevrolet to police in a written statement,

which follows in part:

On 10-14-90, I signed the Lease Agreement and

took possession of the van. I was told on

[10-13-90 or 10-14-90] or both of these dates that

rebates were not being offered. . . . Later, |

questioned [salesman] Ron Hall again as to

rebate offerings and was told that there were

none. I was told by Ron Hall and J.J. that I could

purchase the van for $500 over cost regardless of

the method of financing. I gave them a mercantile

check in the amount of $4,000 to be held until

11-11-90... . I was told by J.J. and Ron Hall

that leasing would save me $80 to $100 per

month .... On 11-2-90, I went . . . to my credit

union . . . [and] spoke with a loan officer who

quoted a much lower rate than the lease. .. . On

[ ] 11-6-90 . . . my loan application [was]

approved.

App. 5

I then contacted [Hallman] Chevrolet . . . and

notified [them] that I had decided to purchase the

vehicle for the $500 over invoice that we had

agreed to... . I received a call back from Dan

with a very hostile tone saying... . I had signed

a [lease] contract and would be held to it. When

I questioned him as to why I could not purchase

as per our original agreement at $500 over

invoice, he turned the phone over to Ron Hall

who said he was going to lose a bonus check if I

bought the vehicle and that I should "just bring

the rig back". I was also threatened with legal

action. Due to the hostile and abusive tone of our

conversation, I . . . [stopped] payment on the

down payment check . . . on 11-6-90. . . . On

11-9-90, I telephoned John Stenko [sic], one of

the owners who said he had sent me a certified

letter... . which he [read over the phone]. . . .

[H]e offered a price of $20,212, which I accepted

over the phone. . . . I then went to the [dealership]

to get a receipt and noticed rebate list memo

taped to the podium. . . . I decided first to get

verification direct from Chevrolet ....

Then on 12-23-90, I went to the dealership. Ron

Hall was in the lot and I asked him what had

happened to my $600 rebate. He said rebates

weren't being offered on my vehicle, at which

time I told him he was lying, that I had a letter

{dated 12-11-90 } from Chevrolet to prove it and

they had stolen my money.

. . . [General Sales Manager] Mr. Souza said I

had signed over the rebate and I told him I

wanted to see the paper. He got my file and

showed me... . I advised him that the signature

App. 6

was a forgery and that unless he wished to got to

court, I wanted my money. He refused to offer

the rebate and I advised both he and Ron Hall

that I was going to pursue this and that somebody

was going to jail.

On May 8, 1991, Wells underwent a polygraph examination at

the Reno Police Department and the examiner concluded that

Wells was speaking truthfully. On July 2, 1991, the county

handwriting analyst determined that the signature in question

"exhibits the characteristics of a’ simulated forgery.'" On July 19,

1991, police forwarded their report to the Washoe County

District Attorney's Office where it was assigned to Assistant

District Attorney Karl Hall ("A.D.A. Hall").

On November 27, 1991, District Attorney investigators ("D.A.

investigators") confronted owner Stanko. In response to the D.A.

investigators’ accusation that Hallman Chevrolet forged Wells'

signature on the rebate form, Stanko stated that Wells had

authorized the dealership to reproduce his signature. In support

of his claim, Stanko voluntarily produced two power of attoney

forms purportedly signed by Wells and a list of rebates ("Rebate

Recap Sheet") credited to the dealership. The D.A. investigators

submitted the power of attorney forms to the county handwriting

analyst who concluded that there was "no basis for identifying

[Wells ] as the writer." Investigators discovered that the forms,

even if signed by Wells, did not authorize the dealership to

reproduce his signature on other documents. Investigators

returned to the dealership to question Stanko regarding the

discrepancies, whereupon he angrily refused to cooperate.

D.A. investigators began to contact other customers listed on the

Rebate Recap Sheet, including Daniel and Donna Pease (the

"Peases"). The dealership received a $500 rebate from Chevrolet

for the Peases’ transaction, but the Peases apparently did not

receive credit for the rebate. Although Daniel Pease confirmed

App. 7

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that it was his signature on the rebate assignment form, neither

he nor his wife remembered salesman Hall mentioning a rebate.

At this point, D.A. investigators decided to seek a search warrant

because they believed they had probable cause to suspect

Hallman Chevrolet of criminal conduct. A.D.A. Hall drafted an

application for the search warrant which a magistrate issued on

January 23, 1992. Four days later, D.A. investigators executed

the warrant and seized 151 transaction files.

In the week following the execution of the warrant, one current

and two former Hallman Chevrolet employees voluntarily came

forward to confirm dealership policies encouraging salesmen to

engage in fraudulent and unfair business practices. They stated

that it was dealership policy not to tell customers about rebates

and to get them unknowingly to assign their rebates to the

dealership.

D.A. investigators began to examine the sales files obtained in

the first search. They contacted dozens more customers and

learned that, in many cases, the dealership retained

down-payments, trade-ins, and rebates without ever applying the

credit to customers’ leases to reduce their capitalized costs. They

also discovered that the dealership had charged customers for

extended warranties they specifically refused or never received.

From February until mid-March 1992, D.A. investigators

identified seventeen of the most clear and convincing instances

of fraud and conducted taped interviews with those customers.

Washoe prosecutors obtained a second search warrant which

they executed on March 27, 1992. With this warrant, they seized

1,700 transaction files. After reviewing the files and interviewing

dozens of customers, investigators again selected the transactions

containing the most convincing evidence of fraud and conducted

taped interviews with those 35 customers.

App. 8

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The D.A. investigators also continued to interview former

dealership employees. In April 1992, former employee William

Dallman stated that he had observed salesmen forging names on

rebate assignment documents and that it was common practice

to add the cost of an extended warranty to the purchase price

without informing the customer. He also described how the

dealership falsified customer credit applications in order to

obtain approval from banks for customer loans. Another former

employee, Bobby Atkerson, stated that he once overheard three

salesmen discussing the forgery of a customer's si gnature. When

the discussion ended, Atkerson entered the room and observed

a piece of paper with sixteen versions of customer Rick Wells'

signature. Additionally, he confirmed that salesmen added

warranties without customer consent and were instructed not to

mention rebates.

Based on this and other evidence, Assistant District Attorney

Donald Coppa ("A.D.A. Coppa") impaneled a Washoe County

grand jury on July 8, 1992. Before presenting the evidence,

A.D.A. Coppa told the grand jury that they were investigating

the "business practices" of Hallman Chevrolet and its employees.

In twenty sessions over the next year, the grand jury heard

personal sworn testimony from seventy-seven witnesses--nearly

all of whom had been interviewed prior to the proceedings--and

received over 3,200 pages of documents and transcripts. On July

2, 1993, the grand jury returned an eighty-one count indictment,

the largest in the history of the county, charging seventeen

Hallman Chevrolet employees with 409 felony offenses. Trial

was set for May 4, 1994. Just before trial, however, Deputy

District Attorney Gary Hatlestad ("D.D.A. Hatlestad")

voluntarily dismissed most of the charges because, according to

him, A.D.A. Coppa had made a fundamental pleading error in

the indictment by treating accessory suspects as principals. In a

lengthy decision, Nevada state court J udge Whitehead dismissed

the remaining charges with prejudice based on what he found to

be egregious prosecutorial misconduct.

App. 9

8

The Washoe prosecutors appealed the decision to the Nevada

Supreme Court, but the newly elected D.A. dismissed that appeal

before it was heard. Following the dismissal, Hallman Chevrolet

filed this civil rights action in the United States District Court for

the District of Nevada. The district court granted the Washoe

prosecutors’ motion for summary judgment and awarded them

fees for the defamation-plus litigation. Hallman Chevrolet now

appeals. We affirm the district court's grant of summary

judgment, but reverse its award of fees.

Il.

STANDARDS OF REVIEW

We review de novo the district court's grant of summary

judgment, see Hervey v. Estes, 65 F.3d 784, 788 (9th Cir. 1995),

and resolve all factual disputes in favor of Hallman Chevrolet,

see Knox v. Southwest Airlines, 124 F.3d 1103, 1107 (9th Cir.

1997). This Court also reviews de novo the district court's

decision to afford public officials qualified or absolute immunity.

See Hervey, 65 F.3d at 788. We review for abuse of discretion

the district court's award of attorneys’ fees to the Washoe

prosecutors. See Hensley v. Eckerhart, 461 U.S. 424, 437, 103 S.

Ct. 1933, 1941, 76 L. Ed. 2d 40 (1983); Oviatt v. Pearce, 954

F.2d 1470, 1481 (9th Cir. 1992).

Il.

DISCUSSION

A. Investigative Immunity

[1] Hallman Chevrolet first contends that the Washoe

prosecutors are not immune from suit for their investigative

activities. We disagree. A prosecutor may only shield his

investigative work with qualified immunity. See Buckley v.

App. 10

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Fitzsimmons, 509 U.S. 259, 273, 113 S. Ct. 2606, 2615, 125 L.

Ed. 2d 209 (1993). The qualified immunity question turns on the

"objective legal reasonableness" of the action. Lombardi v. City

of El Cajon, 117 F.3d 1117, 1125 n.5 (9th Cir. 1997) (citing

Anderson v. Creighton, 483 U.S. 635, 638-39, 107 S. Ct. 3034,

3038, 97 L. Ed. 2d 523 (1987)). It is not objectively reasonable

for a prosecutor deliberately or recklessly to misstate or omit

facts material to the existence of probable cause. See id. at 1126.

[2] Hallman Chevrolet asserts that the Washoe prosecutors

misrepresented material facts in affidavits supporting two search

warrant applications.’ Hallman Chevrolet claims that customer

Wells received credit for his rebate and that the Washoe

prosecutors misrepresented that fact. The record, however,

Suggests otherwise. More importantly, the Washoe prosecutors

_ were reasonable to believe otherwise. During his polygraph

examination, Wells made a swom statement, which the

polygraph analyst found to be truthful, that he never received his

rebate. Moreover, the county handwriting analyst determined

that Wells’ signature was a probable forgery. The Washoe

prosecutors were also aware that owner Stanko and several

Hallman Chevrolet employees had given different versions of the

events to Wells, the police and D.A. investigators. Furthermore,

despite numerous opportunities, Hallman Chevrolet failed to

produce any documentary evidence or reliable testimony refuting

Wells' version of the events. Hallman Chevrolet next argues that

the Washoe prosecutors deliberately misled the magistrate by

calling the signatures in question "confirmed" forgeries. We

disagree. These signatures clearly exhibit the signs of forgery.

According to the Washoe County handwriting expert, they

' An affiant, Reno Police Detective Robert McDonald,

was not a named defendant, but according to Hallman Chevrolet,

the affidavit itself was drafted by A.D.A. Hall. For purposes of

summary judgment, that assertion is assumed true.

App. 11

differed from Wells' known wniting style and there was "no basis

for identifying [Wells] as the wmiter."

[3] Hallman Chevrolet also asserts that the Washoe prosecutors

deliberately omitted material facts in their affidavits. To show

that an omission is material, "[t]he plaintiff must establish that

the remaining information in the affidavit is insufficient to

establish probable cause." Hervey, 65 F.3d at 789. The standard

for determining probable cause under Nevada law is whether

there is "slight, even marginal, evidence" to support the charge.

State v. Boueri, 672 P.2d 33, 36 (Nev. 1983).

[4] Although the Washoe prosecutors did omit facts from their

affidavits, none of these facts was material. For example,

Washoe prosecutors omitted the fact that the Department of

Motor Vehicles ("DMV") had made an inquiry and determined

that Hallman Chevrolet did not owe any rebate money to Wells.

This fact was, however, immaterial because the DMV

investigator made his determination without knowing of the

alleged forgery. The DMV investigator later acknowledged that

he would have reopened the Wells investigation had he known

of the forgery. In addition, Washoe prosecutors neglected to state

that Hallman Chevrolet voluntarily turned over Wells’ file and

that an investigation of twelve other customers revealed only that

one couple did not recall being told of their rebate. When viewed

in context, however, these facts do not suggest Hallman

Chevrolet's innocence. Despite Hallman Chevrolet's initial

cooperation, owner Stanko quickly refused voluntarily to

produce documents or otherwise assist authorities in the

investigation. Moreover, the same salesman who apparently

defrauded Wells was also involved in the other suspect

transaction.

[5] Washoe prosecutors did not disclose to the magistrate that

Wells had been convicted earlier of bank fraud involving a

vehicle loan and had a possible motive to allege fraud.

App. 12

These facts might bear on Wells' credibility. However, the

Washoe prosecutors corroborated Wells’ story by administering

a polygraph examination, submitting documents to a handwriting

specialist, and taking the sworn statement of another customer

who had a similar experience with the same salesman. Thus, a

neutral and detached magistrate would have found probable

cause even if the Washoe prosecutors had included these

unfavorable facts.

In sum, the Washoe prosecutors did not intentionally omit or

misrepresent any facts-that were material to the finding of

probable cause. Nor did they act otherwise to destroy their

investigative immunity.

B. Prosecutorial Immunity

Hallman Chevrolet next contends that the Washoe prosecutors

are not entitled to the protection of absolute immunity for their

activities after the initiation of grand jury proceedings because

they functioned as investigators rather than advocates. We reject

this contention.

[6] A prosecutor performing an advocate's role is an officer of

the court entitled to absolute immunity. See Buckley, 509 U.S. at

273, 113 S. Ct. at 2615, 125 L. Ed. 2d 209. A prosecutor's acts

in the course of his role as an advocate "include the professional

evaluation of the evidence assembled by the police and

appropriate preparation for its presentation at trial or before a

grand jury after a decision to seek an indictment has been made."

Id. The Supreme Court has recognized that "prosecutors are

absolutely immune from liability under § 1983 for their conduct

before grand juries. " Burns v. Reed, 500 U.S. 478, 490 n.6, 111

S. Ct. 1934, 1941 n.6, 114 L. Ed. 2d 547 (1991).

[7] The Washoe prosecutors functioned as advocates in the grand

jury proceedings. By the time the grand jury was impaneled, the

App. 13

Washoe prosecutors had completed a vast majority of the

investigation and, prior to the impanelment, virtually every

witness had been interviewed and every exhibit compiled. After

A.D.A. Coppa impaneled the grand jury, he sought an indictment

primarily by presenting to the grand jury the witnesses he had

already interviewed and the evidence he had previously gathered.

[8] Nonetheless, Hallman Chevrolet insists that the Washoe

prosecutors are not entitled to the protection of absolute

immunity because they lacked probable cause to impanel the

grand jury. Under federal law, "[a] prosecutor neither is, nor

should consider himself to be, an advocate before he has

probable cause to have anyone arrested." Buckley, 509 U.S. at

274, 113 S. Ct. at 2616, 125 L. Ed. 2d 209. The degree of

strength required to establish probable cause is determined by

state law. Berg v. Leason, 32 F.3d 422, 425 (9th Cir. 1994).

[9] The Nevada standard for determining probable cause is

whether there is "slight, even marginal, evidence " to support the

charge. Boueri, 672 P.2d at 36. "The state need only present

enough evidence to create a reasonable inference that the accused

committed the offense with which he or she is charged." Jd. ;

accord LaPena v. Sheriff, 541 P.2d 907 (Nev. 1975). In Boueri,

the defendant was accused of embezzling money from his

employer, Caesar's Palace, where he worked as vice-president in

charge of hosting affluent guests. 672 P.2d at 36. As part of his

duty to induce such persons to visit Caesar's, defendant would

arrange complimentary air fare in the name of guests through a

local travel agency. See id. According to Caesar's policy, when

defendant sought refunds from the travel agency for unused

tickets, checks were to be made out directly to Caesar's. See id.

Caesar's policy did not authorize defendant to receive cash

refunds for unused tickets. See id. At the grand jury hearing,

however, the travel agent stated that the agency usually issued

checks to the order of cash and delivered them to defendant. See

id. Yet, neither Caesar's nor its guests ever received the money.

App. 14

See id. The court's "logical inference” from these facts was

sufficient to establish probable cause that defendant had

embezzled the money. See id.

[10] In the present case, the Washoe prosecutors had probable

cause exceeding that recognized in Boueri. After a year-long

investigation, the Washoe prosecutors had compiled hundreds of

supporting documents and interviewed dozens of witnesses,

including former employees and customers. As a result of this

investigation, the Washoe prosecutors had ample and convincing

evidence that Hallman Chevrolet employees had forged

customers’ signatures, withheld rebates, retained customer

down-payments intended to reduce principal balances and made

material misrepresentations to customers.

Nonetheless, Hallman Chevrolet contends that probable cause

did not exist at the time the grand jury was impaneled. First, it

argues that D.D.A. Hatlestad admitted that "there was not even

‘slight or marginal evidence’ " to support any of the charges and

that admission is controlling. Second, it argues that the Nevada

state court ruling that Washoe prosecutors did not have probable

cause is controlling. We reject both arguments.

First, D.D.A. Hatlestad did not admit that the Washoe

prosecutors acted without "slight or marginal evidence." He

actually stated that "the counts were not, as pleaded,’ supported

by slight or marginal evidence . . . . [But] an arresting officer,

acting either with or without an arrest warrant, would have had

probable cause to believe that each of the named defendants had

committed crimes under Nevada law and could have arrested

them accordingly" (emphasis added). Contrary to Hallman

* According to the Washoe prosecutors, A.D.A. Coppa

made a fundamental pleading error in drafting the indictment

by failing to identify conduct which would cause an accessory

to be responsible as a principal.

App. 15

Chevrolet's position, D.D.A. Hatlestad's statement actually

affirms the existence of probable cause. Nonetheless, we are not

bound by his characterization of the facts.

Second, we are not precluded by the Nevada state court ruling on

the question of whether there was probable cause because the

Nevada state court did not reach this issue. It was neither

"actually litigated" nor "necessarily decided” in the state court.

Under Nevada law, collateral estoppel applies when an issue is

"actually litigated" and "necessarily determined" in a prior

proceeding, and the parties in the two proceedings are the same

or in privity. See Marine Midland Bank v. Monroe, 756 P.2d

1193, 1194 (Nev. 1988). Thus, we reject Hallman Chevrolet's

preclusion argument.

C. Alleged Unconstitutional County Policy

Hallman Chevrolet next clairns that A.D.A. Coppa's actions

served as a cognizable basis for the imposition of liability against

Washoe County because he exercised policy-making authority in

violation of Hallman Chevrolet's constitutional nghts.

[11] "[MJunicipal liability under § 1983 attaches where--and

only where--a deliberate choice to follow a course of action is

made from among various alternatives by the official or officials

responsible for establishing final policy with respect to the

subject matter in question." Pembauer v. City of Cincinnati, 475

U.S. 469, 483-84, 106 S. Ct. 1292, 1300, 89 L. Ed. 2d 452

(1985). "Congress did not intend municipalities to be held liable

unless action pursuant to official municipal policy of some

nature caused a constitutional tort." /d. at477, 106 S. Ct. at 1297,

89 L. Ed. 2d 452 (quoting Monell v. New York City Dep't of Soc.

Servs., 436 U.S. 658, 691, 98 S. Ct. 2018, 2036, 56 L. Ed. 2d 611

(1978)).

App. 16

[12] The Washoe prosecutors, including A.D.A. Coppa,

performed their duties in good faith--properly establishing

probable cause in seeking both search warrants, convening the

grand jury and making arrests. In light of the fact that the

Washoe prosecutors did not violate Hallman Chevrolet's

constitutional rights, we need not address the question of

whether A.D.A. Coppa was a policymaker for the purpose of

attributing his actions to Washoe County.

D. Attorneys' Fees for Defamation-plus Claim

[13] Hallman Chevrolet also claims that the district court erred

in awarding attorneys' fees to the Washoe prosecutors for the

so-called "defamation-plus"’ claim. We agree. District courts are

authorized to award attorneys' fees to a prevailing defendant in

civil rights cases only in those exceptional cases when the action

is unreasonable, frivolous, meritless, or without foundation, or

when the plaintiff continues to litigate after it clearly becomes

so. See Christiansburg Garment Co. v. EEOC, 434 U.S. 412,

422, 98S. Ct. 694, 701, 54 L. Ed. 2d 648 (1978) (interpreting the

Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. §

1988); see also Franceschi v. Schwartz, 57 F.3d 828, 832 (9th

Cir. 1995).

[14] In this case, Hallman Chevrolet's claim for defamation-plus

was not frivolous. There are two ways to state a cognizable §

1983 claim for defamation-plus: (1) allege that the injury to

* A § 1983 action requires that a claimant plead more

than mere injury to reputation. The injury to reputation must be

joined with an injury to a liberty or property interest protected

by the due process clause of the Fourteenth Amendment. See

Paul v. Davis, 424 U.S. 693, 703, 96 S. Ct. 1155, 1161, 47 L. Ed.

2d 405 (1976); see also Cooper v. Dupnik, 924 F.2d 1520, 1532

(9th Cir. 1991) (citation omitted). Hence, the label "defamation-

plus."

App. 17

reputation was inflicted in connection with a federally protected

right; or (2) allege that the injury to reputation caused the denial

of a federally protected right. See Cooper v. Dupnik, 924 F.2d

1520, 1532 (9th Cir. 1991). Hallman Chevrolet asserted a

defamation-plus claim under each of these methods.

1. Injury in connection with a federally protected right.

First, Hallman Chevrolet argued that the Washoe prosecutors

injured its reputation in connection with the deprivation of its

federally protected right to be free from unlawful searches,

seizures and arrests. Hallman Chevrolet adequately alleged all of

the elements of defamation-plus, including the allegation that the

Washoe prosecutors made defamatory comments in connection

with indictments and arrests for which there was no probable

cause. Even though the district court eventually granted

summary judgment on the issue of probable cause, it was

reasonable for Hallman Chevrolet to believe that the

defamation-plus claim had merit. The claim had survived an

earlier motion to dismiss which this Court recognizes as

evidence that the claim is not without merit. See Jensen v.

Stangel, 762 F.2d 815, 818 (9th Cir. 1985).

Moreover, the state court order implied that the facts would

support a defamation-plus claim against the Washoe prosecutors.

We draw attention to the state court order not to endorse its

holding, but instead to demonstrate the reasonableness of

Hallman Chevrolet's defamation-plus claim. According to the

state court, the Washoe prosecutors disregarded Nevada state law

throughout the grand jury process. In an excoriating judgment,

Nevada District Judge Jerry Whitehead stated:

The undersigned has never before witnessed a

criminal indictment in a serious case where the

procedures that have been established to insure

fairness were so disregarded and ignored. The

App. 18

Court is shocked that [Hallman Chevrolet has]

been subjected to criminal charges, public

vilification, and enormous economic loss based

upon a proceeding so flawed and unfair. Our

system was designed to avoid such abuses of

official power, but the system failed [Hallman

Chevrolet] in this case.

Nevada v. Bayus, Order, No. CR93-1259 at 4-5 (Nevada 2nd

Dist., April 26, 1994). The state court order clearly influenced

Hallman Chevrolet. In its opening brief, Hallman Chevrolet

quotes a section of the state court order titled "Prejudicial Pre-

Tnal Publicity By The District Attorney” which states that the

District Attorney made comments with the "clear intent” to

"improperly influence” the court and the jury. In light of the state

court order and the defamation-plus claim's survival of an earlier

motion to dismiss, it is reasonable to assume that Hallman

Chevrolet genuinely disputed the district court's conclusion and

continued to litigate because it felt compelled to preserve the

separate defamation-plus issue for appeal.

2. Injury causing denial of afederally protected right.

In its second claim for defamation-plus, Hallman Chevrolet

contended that the Washoe prosecutors’ defamatory statements

deprived it of business goodwill, a state property right that is

afforded constitutional protection. In holding this claim to be

frivolous, the district court stated that "nothing in [Hallman

Chevrolet's] papers" makes the showing that business goodwill

is a property right protected under Nevada state law and that a

“mere injury either to reputation or business goodwill is

insufficient to support a defamation-plus § 1983 claim, unless

these are shown under State law to be legally protected interests,

rather than merely the basis for tort claims." (emphasis added).

App. 19

[15] The district court, however, apparently overlooked the

relevant portion of Hallman Chevrolet's papers. In fact, Hallman

Chevrolet cited specific cases* for the principle that business

goodwill is a protected property right in Nevada. Despite the

complexity of the law in this area, Hallman Chevrolet made a

genuine attempt to assert its claim under the law of Nevada.

Moreover, Haliman Chevrolet relied almost entirely on the

earlier state court judgment which strongly suggested that the

Washoe prosecutors had violated Hallman Chevrolet's

constitutional rights. Under these circumstances, we hold that it

was error to find the defamation-plus claim unreasonable or

frivolous.

~ [16] For these reasons and in light of the well-established rule

that a defendant should only receive an award of attorneys’ fees

in extreme cases, we hold that the district court abused its

discretion in making such an award. Each party shall bear its, his

or her own costs on appeal.

AFFIRMED IN PART, REVERSED IN PART.

* In their papers opposing the motion for summary

judgment, Hallman Chevrolet cited Ford v. Ford, 782 P.2d 1304,

1308 (Nev. 1989) and Zales-Las Vegas v. Bulova Watch, 396

P.2d 683, 689 (Nev. 1989).

App. 20

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HERB HALLMAN CHEVROLET, INC.., a

Nevada corporation; JOHN STANKO,

Plaintiffs-Appellants,

No. 97-15275

Ve

D.C. No. CV-94-00333-DWH

DOROTHY NASH-HOLMES;

et al.,

Defendants-Appellees.

JERRY VAN DER HOEVEN; et al.

No. 97-15323

Plaintiffs-Appellants,

D.C. No. CV-95-00090-DWH

V.

DONALD COPPA, individually and in

his official capacity as Assistant

District Attorney for Washoe

County; et al.,

Defendants-Appellees.

JERRY VAN DER HOEVEN; et al.

No. 97-16960

Plaintiffs-Appellants,

D.C. No. CV-95-00090-DWH

V.

DONALD COPPA, individually and in

his official capacity as Assistant

App. 21

District Attorney for Washoe

County; DOROTHY NASH-HOLMES,

individually and in her official

capacity as District Attorney for

Washoe County; et al.,

Defendants-Appellees.

HERB HALLMAN CHEVROLET, INC., a

Nevada corporation; JOHN STANKO,

Plaintiffs-Appellants,

No. 97-16976

V.

D.C. No. CV-94-00333-DWH

DOROTHY NASH-HOLMES,; et al.,

Defendants-Appellees.

ORDER

Before: SNEED, TASHIMA, and SILVERMAN, Circuit

Judges

The panel has voted to deny appellants’ petition for

rehearing and for rehearing en banc.

The full court has been advised of the petition for

rehearing en banc and no active judge has requested a vote on

whether to rehear the matter en banc. Fed. R. App. P. 35.

Appellants’ petition for rehearing and for rehearing en banc is

denied.

App. 22

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

HERB HALLMAN CHEVROLET, INC., a

Nevada corporation; JOHN STANKO,

Plaintiffs-Appellants,

No. 97-15275

V.

D.C. No. CV-94-00333-DWH

DOROTHY NASH-HOLMES;

et al.,

Defendants-Appellees.

JERRY VAN DER HOEVEN; et al.,

No. 97-15323

Plaintiffs-Appellants,

D.C. No. CV-95-00090-DWH

V.

DONALD COPPA, individually and in

his official capacity as Assistant

Distnct Attoney for Washoe

County; et al.,

Defendants-Appellees.

JERRY VAN DER HOEVEN; et al.,

No. 97-16960

Plaintiffs-Appellants,

D.C. No. CV-95-00090-DWH

Vv.

DONALD COPPA, individually and in

his official capacity as Assistant

App. 23

District Attorney for Washoe

County; DOROTHY NASH-HOLMES,

individually and in her official

capacity as District Attorney for

Washoe County; et al.,

Defendants-Appellees.

HERB HALLMAN CHEVROLET, INC., a

Nevada corporation; JOHN STANKO,

Plaintiffs-Appellants,

No. 97-16976

V.

D.C. No. CV-94-00333-DWH

DOROTHY NASH-HOLMES; et al.,

Defendants-Appellees.

ORDER

Before: SNEED, TASHIMA, and SILVERMAN, Circuit

Judges

Appellees’ petition for rehearing is denied.

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

HERB HALLMAN CHEVROLET, CV-N-94-33-DWH

INC., a Nevada corporation, and

JOHN P. STANKO, an individual,

Plaintiffs,

Vs. ORDER

DOROTHY NASH HOLMES, et al..

Defendants.

/

By an amended complaint (#5), plaintiffs--a local

automobile dealership (“Champion”) and its owner (“Stanko”’)--

sue defendant--prosecutors and investigators from the Washoe

County District Attomey’s Office (“the D.A. defendants”’) and

Washoe County-—for various constitutional violations under 42

U.S.C. § 1983 and various state law torts arising out the criminal

investigation and prosecution of plaintiffs by defendants and the

Reno Police Department (“RPD”). Before the court are the

parties’ papers on the issue of absolute immunity (#s 67, 68, 73,

76, 78), on defendant Washoe County’s motion for summary

judgment (#s 51, 71, 74), and on the D.A. defendants’ motion for

summary judgment (#s 69, 75, 79). No oral argument was

requested, and, due to the extensive briefing, the court finds oral

argument unnecessary.

PLAINTIFFS’ CLAIMS

In summary, plaintiffs’ lengthy amended complaint

alleges the following, making scattershot allegations of

App. 25

constitutional violations throughout: the D.A. defendants, under

custom or policy of Washoe County, advised and assisted RPD

in illegally obtaining and executing invalid search warrants of

Champion in January and March of 1992; they illegally retained

property seized during those searches; they illegally had plaintiff

Stanko arrested; they illegally employed a grand jury to

investigate and indict plaintiffs without probable cause; and,

throughout the above events, they defamed plaintiffs to the

media and to plaintiffs’ customers.

The amended complaint sets forth eight “claims for

relief”: (1) deprivation of constitutional rights and conspiracy to

deprive plaintiffs of constitutional nghts in violation of 42

U.S.C. § 1983, seeking damages, fees, and costs; (2) failure to

train by Washoe County, resulting in the above violations; (3)

declaratory and injunctive relief to remedy the above violations,

(4) punitive damages based on the above violations; (5)

defamation; (6) conversion; (7) interference with contractual

relations; and (8) intentional infliction of emotional distress.

ANALYSIS

I. Absolute Immunity

As described more fully in the court’s order entered

March 1, 1996 (#65), the procedural posture of this case led the

court to order the parties to brief it on the issue of absolute

immunity. The D.A. defendants complied with that order (#67),

contending, in a nutshell, that the prosecutors are absolutely

immune from all of plaintiffs’ claims except for defamation and

failure to train, and that the investigators are absolutely immune

to the same extent from July 8, 1992--the date the grand jury was

impanelled—to the present. Washoe County joined that bref

(#68). Plaintiffs responded by moving for partial summary

judgment in their favor on the issue of absolute immunity (#73).

Alternatively, they requested additional discovery pursuant to

App. 26 '

Federal Rule of Civil Procedure 56(f) prior to the court’s ruling

on absolute immunity. Additionally, plaintiffs requested that the

court “rule on their Motion for Order Clarifying and Enforcing

Order of February 27, 1995 and for Order Compelling Discovery

(document number 36).” #73 at 2. Defendants then replied (#76,

supplemented by #78), which closed the briefing on this issue.

The court set forth the principles of absolute immunity as

applied to prosecutors and investigators in its order of March a

1996 (#65), and hereby incorporates that discussion into this

order. To that discussion, the court adds that, as the officials

seeking absolute immunity, the D.A. defendants bear “the burden

of showing that such immunity is justified for the function{s] in

question.” Burns v. Reed, 500 U.S. 478, 486 (1991). Upon

review of the parties’ respective papers, the court finds that the

D.A. defendants have not met their burden with respect to any

conduct before taking the case to the grand jury, and have met

their burden with respect to some, but not all, conduct thereafter.

The D.A. defendants are not entitled to absolute

immunity to the extent they participated in obtaining and

executing the search warrants in January and March of 1992.

They admit that defendant prosecutor Hall drafted the affidavits

signed by Officer MacDonald of the Reno Police Department in

support of the first search warrant, and that defendant prosecutor

Coppa drafted the affidavit in support of the second search

warrant. The D.A.’s office did not decide that it had probable

Cause to seek an indictment from a grand jury until months later.

As the Supreme Court noted in Buckley v. Fitzsimmons, 509 U.S.

259, 274 (1993), “A prosecutor neither is, nor should consider

himself to be, an advocate before he has probable cause to have

anyone arrested.”

Contrary to defendants’ arguments, Burns does not hold

that absolute immunity is available for a prosecutor’s role in

drafting affidavits in support of a search warrant. In Burns, the

App. 27

Supreme Court went out of its way to limit the scope of its

discussion to the prosecutor’s participation in a probable cause

hearing before the court. 500 U.S. 487-89. Moreover, it noted

that the hearing occurred after arrest, which made it “connected

with the initiation and conduct of a prosecution.” /d. at 492.

Under the functional approach to absolute immunity

required by Buckley, 509 U.S. at 2615, the D.A. defendants’

roles in obtaining and executing the search warrants were

analogous to providing legal advice to the police, which Burns

held does not qualify for absolute immunity. 500 U.S. at 493. In

Malley v. Briggs, 475 U.S. 335, 342-43 (1986), the Supreme

Court held that absolute immunity was not available for a police

officer’s application for a warrant. The same result obtains here

to the prosecutors’ role in helping police officers prepare

applications for warrants. See Kohl v. Casson, 5 F.3d 1141, 1146

(8th Cir. 1993) (prosecutor absolutely immune for appearing

with police officer before magistrate in hearing to obtain warrant,

but only qualifiedly immune for advising officer on preparing

affidavit).

On the other hand, the D.A. defendants have met their

burden of showing that absolute immunity is justified for their

actions following the initiation of proceedings before the grand

jury, which began July 8, 1992. Courts generally have found

prosecutors are absolutely immune from liability under § 1983

for their conduct before grand juries. Burns, 500 U.S. at 490 n.6.

Citing Buckley, plaintiffs argue that immunity is inappropriate

here, though, because defendant Coppa lacked probable cause

when he went before the grand jury and he used the grand jury

as an investigative tool.

Plaintiffs’ reliance on Buckley is misplaced. In Buckley,

the prosecutors “convened a special grand jury for the sole

purpose of investigating” a crime for which they had insufficient

evidence to support anyone’s arrest. 509 U.S. at 263-64.

App. 28

It was well after the alleged fabrication of false

evidence concerning the bootprint that a special

grand jury was impaneled. And when it finally

was convened its immediate purpose was to

conduct a more thorough investigation of the

crime--not to return and indictment against a

suspect whom there was already probable cause

to arrest. Buckley was not arrested, in fact, until

10 months after the grand jury had been

convened and had finally indicted him.

Id. at 275. In contrast, the D.A. defendants have succeeded in

showing they had probable cause when Coppa first went before

the grand jury, that thereafter his actions and the actions of the

other prosecutors and investigators largely consisted of preparing

evidence for presentation to the grand jury, and that the lengthy

period before which an indictment was returned mainly was due

to the volume of materials and number of charges and

defendants. Further, they are entitled to absolute immunity for

any subsequent conduct on their part resulting in plaintiff

Stanko’s arrest because such conduct was in preparation “for the

initiation of judicial proceedings” and occurred in the course of

their roles as advocates for the state. Buckley, 509 U.S. at 273.

In an attempt to contravene the above, plaintiffs’ request

relief under Rule 56(f), but their request is inadequate. Under

that rule,

Should it appear from the affidavits of a party

opposing [a motion for summary judgment] that

the party cannot for reasons stated present by

affidavit facts essential to justify the party’s

opposition, the court may refuse the application

for judgment or may order a continuance to

permit affidavits to be obtained or depositions to

be taken or discovery to be had or may make

App. 29

such other order as it just.

Fed. R. Civ. P. 56(f). The Ninth Circuit has summarized the

analysis of Rule 56(f) motions as follows:

The party opposing summary judgment bears the

burden of showing “what facts she hopes to

discover to raise a material issue of fact.” .. . The

party seeking additional discovery also bears the

burden of showing that the evidence sought

exists. Denial of a Rule 56(f) application is

proper where it is clear that the evidence sought

is almost certainly nonexistent or is the object of

pure speculation.

Terrell v. Brewer, 935 F.24 1015, 1018 (9th Cir. 1991) (citations

omitted).

Counsel’s affidavit claims, but does not support, that

certain “documentation produced shows an ongoing

investigation of new witnesses and new facts on or after July 8,

1992.” #73 Dickerson Aff. He therefore “believes that there is a

more than reasonable likelihood of generating, through

additional discovery into facts after July 8, 1992, information

which would be helpful on [the] issues of absolute and qualified

immunity.” Jd. These averments fail to satisfy the above

requirements. Moreover, the affidavits and exhibits submitted

with the D.A. defendants’ brief and reply brief strongly suggest

that “the evidence sought [by plaintiffs] is almost certainly

nonexistent or is the object of pure speculation.” Terrell, 935

F.2d at 1018. See also Schlesinger v. Central Intelligence

Agency, 591 F. Supp. 60, 64-65 (D.D.C. 1984) (Rule 56(f)

application denied where mere allegation of factual dispute

specifically rebutted by moving party’s affidavit), cited with

approval, Visa Int'l Serv. Ass'n v. Bankcard Holders of America,

784 F.2d 1472, 1476 (9th Cir. 1986). Additionally, inquiries

App. 30

plaintiffs wish to pursue with respect to conduct after July 8,

1992, as expressed in their brief, #73 at 39, largely involve

Coppa’s subjective beliefs about the case when he took it before

the grand jury; thus, they have little relevance to the absolute

immunity issue.

Accordingly, plaintiffs’ Rule 56(f) motion should be

denied, as should plaintiffs’ request that the court “rule on their

Motion for Order Clarifying and Enforcing Order of February

27, 1995 and for Order Compelling Discovery (document

number 36).” Plaintiffs’ motion for partial summary judgment on

the issue of absolute immunity should be granted in part and

denied in part. The D-A. defendants, both prosecutors and

investigators, are entitled to absolute immunity for their actions

following July 8, 1992, with the exception, as they concede, that

they are not entitled to absolute immunity for their allegedly

defamatory, out-of-court statements concerning plaintiffs. Also,

defendants have not adequately addressed plaintiffs’ claims that

defendants illegally retained property seized from plaintiffs, so

defendants have not shown they are entitled to absolute

immunity on those claims.

Il. Qualified Immunity

The D.A. defendants move for summary judgment (#69)

primarily on the grounds of qualified immunity. They contend

qualified immunity shields them from liability on plaintiffs’ §

1983 claims of individual and conspiratorial deprivations of

constitutional rights (plaintiffs’ first and fourth claims for relief).

However, they do not move for summary judgment on plaintiffs’

defamation claim. Plaintiffs oppose, objecting that discovery has

not yet been completed and objecting to certain exhibits offered

by defendants in support of their motion (#75).' Defendants reply

' The court does not rely on defendants’ exhibit #37, to

which plaintiffs object, #75 at 12, and the court overrules a

App. 31

in support of the motion (#79).

“When a public official asserts qualified immunity from

liability, the district court must determine whether, in light of

clearly established principles governing the conduct in question,

the official objectively could have believed that his conduct was

lawful.” Osolinski v. Kane, _ F.3d__, 1996 WL 450361, *2

(9th Cir. Aug. 12, 1996).

Conceming plaintiffs’ claims that the D.A. defendants

caused material misrepresentations and omissions to be made in

the affidavits for search warrants, the law was clearly established

that judicial deception may not be employed to obtain a warrant.

Franks v. Delaware, 438 U.S. 154, 155-56 (1978). However,

a plaintiff can only survive summary judgment

on a defense claim of qualified immunity if the

plaintiff can both establish a substantial showing

of a deliberate falsehood or reckless disregard

and establish that, without the dishonestly

included or omitted information, the magistrate

would not have issued the warrant.

Hervey v. Estes, 65 F.3d 784, 789 (9th Cir. 1995). Upon an

examination of both defendants’ and plaintiffs’ numerous

exhibits, including those offered by plaintiffs in their papers

addressing absolute immunity,” the court finds plaintiffs have

plaintiffs other objections to defendants’ exhibits, #75 at 10, 11,

because those objections are without merit.

? It bears nothing that defendants’ exhibit purporting to

be the affidavit in support of the first search warrant, #69 Ex. 19,

is missing several pages. However, the court has reviewed a

complete copy of the affidavit offered by plaintiffs_with their

brief on absolute immunity. #73 Ex. 18

App. 32

failed to raise a genuine issue of fact with respect to either of the

two prongs identified in Hervey.

Likewise, plaintiffs’ claim that the warrants were facially

invalid because they were “general” warrants is belied by the

warrants themselves.’ Unlike warrants which the Ninth Circuit

has found unconstitutionally overbroad, e.g., United States v.

Kow, 58 F.3d 423, 426-28 (9th Cir. 1995), these warrants

describe the type of items to be seized with sufficient

particularity, e.g., by limiting documents by time frame or by

names of certain Champion employees and specifying a limited

number of crimes for which evidence was sought. See #69 Ex.

20; #73 Ex. 22. Although the second warrant contained two

fairly broad categories of items to be seized, these were only two

of several more specific categories. In short, an “objectively

reasonable” officer could have relied on either warrant. Kow, 58

F.3d at 428.

As to the remaining claims of constitutional violations

before July 8, 1992, the D.A. defendants have demonstrated that

reasonable officials objectively could have believed their

conduct, to the extent plaintiffs have even shown any conduct by

these defendants, was lawful. Excluded from the foregoing, of

course, are plaintiffs’ claims of defamation plus and illegal

retention of seized property, which defendants do not address in

their motion.

III, Failure to Train and Municipal Liability

Defendants Holmes and Coppa move for summary

judgment (#69) on plaintiffs’ claim of § 1983 liability for failure

* Again, defendants submit an incomplete copy of the

second search warrant, #69 Ex. 34; however, the court has

reviewed a complete copy submitted with plaintiffs’ brief on

absolute immunity. #73 Ex. 22.

App. 33

to train. Defendant Washoe County moves for summary

judgment on plaintiffs’ claimrof municipal liability under § 1983

(#51). Plaintiffs oppose (#71), and Washoe County replies (#74).

Holmes and Coppa join Washoe County’s reply. #79 at 24.

Defendants are liable under § 1983 for failure to train

“only where the failure to train amounts to deliberate

indifference to the nights of persons with whom (the

subordinates] come into contact.” Ting v. United States, 927 F.2d

1504, 1512 (9th Cir. 1991) (quoting City of Canton v. Harris,

489 U.S.°378 (1989)). By affidavits offered with its motion,

Washoe County has established that all of the individuals had

adequate training. The alleged inadequacies complained of by

plaintiffs are insufficient to show that defendants “made a

‘deliberate’ or conscious’ choice not to train” subordinates in

areas they knew “would ‘likely . . . result in the violation of

constitutional rights.”” Ting, 927 F.2d at 1512 (quoting Harris).

Similarly, plaintiffs fail to support their claim that

Washoe County, through Holmes and Coppa, sanctioned or

ratified constitutional violations. Plaintiffs have not raised a

genuine issue under state law that Assistant District Attorney

Coppa was a final policymaking county official with respect to

grand jury practice. See Pembaur v. Cincinnati, 475 U.S. 469,

482-83 (1986). Nor have they raised a genuine issue that District

Attorney Holmes directly participated in any of the alleged

constitutional deprivations or that her alleged ratification of any

actions by subordinates caused those deprivations.

Thus, plaintiffs have failed to raise a genuine issue with

respect to failure to train and municipal liability. Again,

however, defendants have not addressed the defamation plus

claims and illegal retention of seized property claims. Plaintiffs

have alleged that defendants Holmes and Coppa were official

policymakers for Washoe County. #5 § XII. Hence, it is possible

that Washoe County may be liable for their acts of defamation.

App. 34

See Pembaur, 475 U.S. at 481. Because the parties have not

briefed this issue with respect to defamation plus and retention

of seized property, it would be inappropriate to summarily

adjudicate the issue.

IV. Conclusion

Regarding plaintiffs’ first and fourth claims for relief,

defendants have shown that they are entitled to absolute

immunity on plaintiffs’ § 1983 claims after July 8, 1992, and

entitled to qualified immunity on plaintiffs’ § 1983 claims before

that date, except for plaintiffs’ claims of defamation plus and

retention of siezed property. Defendants also have shown there

is NO genuine issue of material fact regarding plaintiffs’ second

claim for relief--for failure to train and municipal liability--

except, again, for the defamation plus and retention of seized

property claims. Defendants have asserted, and plaintiffs have

not controverted, that plaintiffs’ third claim for relief--seeking

injunctive and declaratory relief--is moot because all property

has been returned to plaintiffs and there is no ongoing criminal

proceeding. With regard to the state-law causes of action, the

court finds it inappropriate to make a summary adjudication of

those claims based on the very limited briefing by the parties.

Accordingly, IT IS HEREBY ORDERED that

defendant Washoe County’s motion for summary judgment

(#51) is GRANTED IN PART AND DENIED IN PART

consistent with the above order.

IT IS FURTHER ORDERED that the remaining

defendants’ motions for summary judgment (#s 67 & 69) are

GRANTED IN PART AND DENIED IN PART consistent with

the above order.

IT IS FURTHER ORDERED that plaintiffs’ motion for

partial summary judgment (#73) is GRANTED IN PART AND

DENIED IN PART consistent with the above order; plaintiffs’

Rule 56(f) request (#73) is DENIED; and plaintiffs’ request that

the court “rule on their Motion for Order Clarifying and

Enforcing Order of February 27, 1995 and for Order Compelling

Discovery (document number 36)” (#73) is DENIED.

DATED: This 26th day of August, 1996.

Ls/_

UNITED STATES DISTRICT JUDGE

App. 36

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

JERRY VAN DER HOEVEN, et al., CV-N-95-90-DWH

Plaintiffs,

vs. ORDER

DONALD COPPA, et al.,

Defendants

/

Before the court are the parties’ papers on the following

matters: the City defendants’ motion for entry of judgment (#36,

39, 41); the issue of absolute immunity (#s 42, 47, 51, 52);

Washoe County’s motion for summary judgment (#s 43, 44, 48);

and the D.A. defendants’ motion for summary judgment (#s

43A, 50, 53). No oral argument was requested, and, due to the

extensive briefing, the court finds oral argument unnecessary.

BACKGROUND

In an order entered February 26, 1996 (#33), the court

dismissed some of plaintiffs’ claims on statute of limitations

grounds. The court hereby incorporates the descnption of

plaintiffs’ factual allegations and claims from that order into this

one. In that order, the court held that any claims which accrued

before February 10, 1993, were barred. Specifically, plaintiffs’

claims of illegal search and seizure and defamatory press releases

connected with the searches in January and March of 1992 were

barred. Not necessarily barred from the face of the complaint

were claims of alleged defamation to business relations and

wrongful retention of property. Finally, not barred were federal

App. 37

claims of illegal arrest and prosecution and related defamation,

as well as state claims of malicious prosecution, abuse of

process, false arrest, and false imprisonment.

ANALYSIS

I. Absolute Immunity—D.A. Defendants

As described more fully in the court’s order entered

March 6, 1996 (#35), the procedural posture of this case led the

court to order the parties to brief it on the issue of absolute

immunity. The D.A. defendants complied with that order (#42),

contending, in a nutshell, that the prosecutors are absolutely

immune from all of plaintiffs’ claims except for defamation and

failure to train, and that the investigators are absolutely immune

to the same extent from July 8, 1992--the date the grand jury was

impanelled--to the present. Plaintiffs responded by moving for

partial summary judgment in their favor on the issue of absolute

immunity (#47). Alternatively, they requested additional

discovery pursuant to Federal Rule of Civil Procedure 56(f) prior

to the court’s ruling on absolute immunity. Additionally,

plaintiffs requested that the court “rule on their Motion for Order

Clarifying and Enforcing Order of February 27, 1995 and for

Order Compelling Discovery (document number 36).” #47 at 2.

This request refers to a motion (#36) in the related case CV-N-

94-33-DWH. Defendants then replied (#51, supplemented by

#52), which closed the briefing on this issue.

The court set forth the principles of absolute immunity as

applied to prosecutors and investigators in its order of March 6,

1996 (#35), and hereby incorporates that discussion into this

order. To that discussion, the court adds that, as the officials

seeking absolute immunity, the D.A. defendants bear “the burden

of showing that such immunity is justified for the function(s} in

question.” Burns v. Reed, 500 U.S. 478, 486 (1991). Upon

review of the parties’ respective papers, the court finds that the

App. 38

D.A. defendants have met their burden of showing that absolute

immunity is justified for their actions following the initiation of

proceedings before the grand jury, which began July 8, 1992.'

Courts generally have found prosecutors are absolutely

immune from liability under § 1983 for their conduct before

grand juries. Burns, 500 U.S., at 490 n.6. Citing Buckley,

plaintiffs argue that immunity is inappropriate here, though,

because defendant Coppa lacked probable cause when he went

before the grand jury and he used the grand jury as an

investigative tool.

Plaintiffs’ reliance on Buckley is misplaced. In Buckley,

the prosecutors “convened a special grand jury for the sole

purpose of investigating” a crime for which they had insufficient

evidence to support anyone’s arrest. 509 U.S. at 263-64.

It was well after the alleged fabrication of false

evidence concerning the bootprint that a special

grand jury was impaneled. And when it finally

was convened, its immediate purpose was to

conduct a more thorough investigation of the

crime--not to return an indictment against a

suspect whom there was already probable cause

to arest. Buckley was not arrested, in fact, until

10 months after the grand jury had been

convened and had finally indicted him.

Id. at 275. In contrast, the D.A. defendants have succeeded in

showing they had probable cause when Coppa first went before

the grand jury, that thereafter his actions and the actions of the

other prosecutors and investigators largely consisted of preparing

' As stated above, plaintiff's claims based on conduct

before that time have been ruled barred by the statute of

limitations.

App. 39

evidence for presentation to the grand jury, and that the lengthy

period before which an indictment was returned mainly was due

to the volume of materials and number of charges and

defendants. Further, they are entitled to absolute immunity for

any subsequent conduct on their part resulting in plaintiffs’

arrests because such conduct was in preparation “for the

initiation of judicial proceedings” and occurred in the course of

their roles as advocates for the state. Buckley, 509 U.S. at 273.

In an attempt to contravene the above, plaintiffs’ request

relief under Rule 56(f), but their request is inadequate. Under

that rule,

Should it appear from the affidavits of a party

opposing [a motion for summary judgment] that

the party cannot for reasons stated present by

affidavit facts essential to justify the party’s

Opposition, the court may refuse the application

for judgment or may order a continuance to

permit affidavits to be obtained or depositions to

be taken or discovery to be had or may make

such other order as is just.

Fed. R. Civ. P. 56(f). The Ninth Circuit has summarized the

analysis of Rule 56(f) motions as follows:

The party opposing summary judgment bears the

burden of showing “what facts she hopes to

discover to raise a material issue of fact.” . . . The

party seeking additional discovery also bears the

burden of showing that the evidence sought

exists. Denial of a Rule 56(f) application is

proper where it is clear that the evidence sought

is almost certainly nonexistent or is the object of

pure speculation.

App. 40

Terrell v. Brewer, 935 F.2d 1015, 1018 (9th Cir. 1991) (citations

omitted).

Counsel’s affidavit claims, but does not support, that

certain “documentation produced shows an ongoing

investigation of new witnesses and new facts on or after July 8,

1992.” #47 Dickerson Aff. He therefore “believes that there is a

more than reasonable likelihood of generating, through

additional discovery into facts after July 8, 1992, information

which would be helpful on [the] issues of absolute and qualified

immunity.” /d. These averments fail to satisfy the above

requirements. Moreover, the affidavits and exhibits submitted

with the D.A defendants’ brief and reply brief strongly suggest

that “the evidence sought [by plaintiffs] is almost certainly

nonexistent or is the object of pure speculation.” Terrell, 935

F.2d at 1018. See also Schlesinger v. Central Intelligence

Agency, 591 F. Supp. 60, 64-65 (D.D.C. 1984) (Rule 56(f)

application denied where mere allegation of factual dispute

specifically rebutted by moving party’s affidavit), cited with

approval, Visa Int'l Serv. Ass'n v. Bankcard Holders of America,

784 F.2d 1472, 1476 (9th Cir. 1986). Additionally, inquiries

plaintiffs wish to pursue with respect to conduct after July 8,

1992, as expressed in their brief, # 47 at 39, largely involve

Coppa’s subjective beliefs about the case when he took it before

the grand jury; thus, they have little relevance to the absolute

immunity issue.

Accordingly, plaintiffs’ Rule 56(f) motion should be

denied, as should plaintiffs’ request that the court “rule on their

Motion for Order Clarifying and Enforcing Order of February

27, 1995 and for Order Compelling Discovery (document

number 36).” Plaintiffs’ motion for partial summary judgment on

the issue of absolute immunity should be granted in part and

denied in part. The D.A. defendants, both prosecutors and

investigators, are entitled to absolute immunity for their actions

following July 8, 1992, with the exception, as they concede, that

App. 41

they are not entitled to absolute immunity for their defamatory,

out-of-court statements concerning plaintiffs. Also, defendants

have not adequately addressed plaintiffs’ claims that defendants

illegally retained property seized from plaintiffs, so defendants

have not shown they are entitled to absolute immunity on those

claims.

Il. Qualified Immunity—D.A. Defendants

The D.A. defendants move for summary judgment

(#43A) primarily on the grounds of qualified immunity. They

contend qualified immunity shields them from liability on

plaintiffs’ § 1983 claims of individual and conspiratorial

deprivations of constitutional rights (plaintiffs’ first and third

claims for relief). Due to the above disposition of the absolute

immunity issue, it is unnecessary for the court to consider

qualified immunity for the claims that survived the statute of

limitations dismissal. Again, however, defendants’ do not

address plaintiffs’ claims of defamation plus and illegal retention

of seized property, so they have not shown an entitlement to

immunity on those claims.

Ill. Failure to Train and Municipal Liability

Defendants Holmes and Coppa move for summary

judgment (#43A) on plaintiffs’ claim of § 1983 liability for

failure to train. Defendant Washoe County moves for summary

judgment on plaintiffs’ claim of municipal liability under § 1983

(#43). Plaintiffs oppose (#44), and Washoe County replies (#48).

Holmes and Coppa join Washoe County’s reply. #53 at 8.

Defendants are liable under § 1983 for failure to train

“only where the failure to train amounts to deliberate

indifference to the nights of persons with whom (the

subordinates] come into contact.” Ting v. United States, 927 F.2d

1504, 1512 (9th Cir. 1991) (quoting City of Canton v. Harris,

_—

App. 42

489 U.S. 378 (1989)). By affidavits offered with its motion,

Washoe County has established that all of the individuals had

adequate training. The alleged inadequacies complained of by

plaintiffs are insufficient to show that defendants “made a

‘deliberate’ or conscious’ choice not to train” subordinates in

areas they knew “would ‘likely. . . . result in the violation of

constitutional rights.’” Ting, 927 F.2d at 1512 (quoting Harris).

Similarly, plaintiffs fail to support their claim that

Washoe County, through Holmes and Coppa, sanctioned or

ratified constitutional violations. Plaintiffs have not raised a

genuine issue under state law that Assistant District Attorney

Coppa was a final policymaking county official with respect to

grand jury practice. See Pembaur v. Cincinnati, 475 U.S. 469,

482-83 (1986). Nor have they raised a genuine issue that District

Attorney Holmes directly participated in any of the alleged

constitutional deprivations or that her alleged ratification of any

actions by subordinates caused those deprivations.

Thus, plaintiffs have failed to raise a genuine issue with

respect to failure to train and municipal liability. Again,

however, defendants have not addressed the defamation plus

claims or the claim that defendants illegally retained seized

property. Plaintiffs have alleged that defendants Holmes and

Coppa were official policymakers for Washoe County. #1 4 X.

Hence, it is possible that Washoe County may be liable for their

acts of defamation. See Pembaur, 475 U.S. at 481. Because the

parties have not briefed this issue with respect to defamation plus

or retention of seized property, it would be inappropriate to

summanily adjudicate the issue.

[V. City Defendants’ Motion for Entry of Judgment

The City defendants move for entry of judgment in their

favor pursuant to Federal Rule of Civil Procedure 54(b) (#36).

They contend the court’s order entered February 26, 1996,

App. 43

effectively disposed of all of plaintiffs’ claims against them and

that “‘all parties would benefit from the formal entry of judgment

_. . #36 at 3. Plaintiffs oppose, contending that theories of joint

activity and conspiracy, as well as the possibility that future

discovery “may uncover facts supporting additional claims for

relief against the City defendants . . . ,” #39 at 4, make entry of

judgment inappropriate. The City defendants’ reply (#48) closes

the briefing on the motion.

For reasons other than those offered by plaintiffs, the

court agrees that it would be inappropriate to direct the entry of

final judgment in favor of the City defendants. Under rule 54(b),

[wJhen more than one claim for relief is

presented in any action, . . . or when multiple

parties are involved, the court may direct entry of

a final judgment as to one or more but fewer than

all of the claims or parties only upon an express

determination that there is no just reason for

delay ....

Fed. R. Civ. P. 54(b). A decision is final and therefore appealable

“if it ‘ends the litigation on the merits and leaves nothing for the

court to do but execute the judgment”” as to that party or claim.

Arizona State Carpenters Pension Trust Fund v. Miller, 938 F.2d

1038, 1039 (9th Cir. 1991) (citation omitted). The court’s

dismissal of certain claims based on the statute of limitations did

not necessarily end the litigation as to the City defendants. By

the order entered February 26, 1996, the court did not adjudicate

plaintiffs’ possible § 1983 claims that accrued after February 10,

1993, against these or any defendants. Moreover, although the

court noted that plaintiffs state-law claims “lie, if at all, against

only the D.A. defendants and perhaps the County,” #33 at 8, that

statement was not a holding dismissing those claims against the

City defendants because the statute of limitations was the only

issue properly before the court. In short, the City defendants have

App. 44

not challenged any claims not barred by the statute of

limitations; hence, they are not entitled to judgment on such

claims.

Further, the complexity and confusing nature of

plaintiffs’ complaint counsels against a Rule 54(b) order. Rule

54(b) certification is proper “if it will aid expeditious decision of

the case” and “prevent piecemeal appeals.” Core-Vent Corp. v.

Nobel Indus. AB, 11 F.3d 1482, 1484 (9th Cir. 1993) (citation

omitted). Here, the claims against the City defendants are not

easily severable from the claims against the other defendants,

and, at this stage of the litigation, the possibility of piecemeal

appeals appears great.

Accordingly, the motion for entry of judgment will be

denied.

V. Conclusion

Regarding plaintiffs’ first and third claims for relief, the

D.A. defendants have shown that they are entitled to absolute

immunity on plaintiffs’ § 1983 claims after July 8, 1992, except

for plaintiffs’ claims of defamation plus and retention of seized

property. Defendants also have shown there is no genuine issue

of material fact regarding plaintiffs’ second claim for relief--for

failure to train and municipal liability--except, again, for the

defamation plus and retention of seized property claims. With

regard to the state-law causes of action, the court finds it

inappropriate to make a summary adjudication of those claims

based on the very limited briefing by the parties. Finally, the City

defendants have not shown they are entitled to entry of judgment

under Rule 54(b).

Accordinaly, IT IS HEREBY ORDERED | that

defendant Washwe County’s motion for summary judgment

(#43) is GRANTED IN PART AND DENIED IN PART

App. 45

consistent with the above order.

IT IS FURTHER ORDERED that the D.A. defendants’

motions for summary judgment (#s 43 & 43A) are GRANTED

IN PART AND DENIED IN PART consistent with the above

order.

IT IS FURTHER ORDERED that plaintiffs’ motion for

partial summary judgment (#47) is GRANTED IN PART AND

DENIED IN PART consistent with the above order; plaintiffs’

Rule 56(f) request (#47) is DENIED; and plaintiffs’ request that

the court “rule on their Motion for Order Clarifying and

Enforcing Order of February 27, 1995 and for Order Compelling

Discovery (document number 36)” (#47) is DENIED.

IT IS FURTHER ORDERED that the City defendants’

motion for entry of judgment (#36) is DENIED..,

DATED: This 26th day of August, 1996.

/s/

UNITED STATES DISTRICT JUDGE

App. 46