Pamela Mnyandu v. County of Los Angeles

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 23, 2019
• Docket: 18-55846
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 23 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

PAMELA TINKY MNYANDU, No. 18-55846

Plaintiff-Appellant, D.C. No. 2:14-cv-06485-DSF-FFM

v. MEMORANDUM* COUNTY OF LOS ANGELES; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Central District of California Dale S. Fischer, District Judge, Presiding

Submitted April 17, 2019**

Before: McKEOWN, BYBEE, and OWENS, Circuit Judges.

Pamela Tinky Mnyandu appeals pro se from the district court’s summary

judgment in her 42 U.S.C. § 1983 action alleging malicious prosecution. We have

jurisdiction under 28 U.S.C. § 1291. We review de novo, Conlon v. United States,

474 F.3d 616, 621 (9th Cir. 2007), and we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). The district court properly granted summary judgment on Mnyandu’s claims

against defendants Sedgwick Claims Management Services, Inc., Lunsway, and

Rose because Mnyandu failed to raise a genuine dispute of material fact as to

whether these defendants instigated Mnyandu’s criminal prosecution with malice.

See id. at 621, 624 (unanswered requests for admission, or untimely and deficient

responses to the same, are deemed admitted under Fed. R. Civ. P. 36(a)(3) and may

be relied on as the basis for granting summary judgment); Pelletier v. Fed. Home

Loan Bank of S.F., 968 F.2d 865, 872 (9th Cir. 1992) (to survive summary

judgment, nonmoving party “ordinarily must furnish affidavits containing

admissible evidence tending to show the existence of a genuine dispute of material

fact”); see also Lacey v. Maricopa County, 693 F.3d 896, 919 (9th Cir. 2012) (en

banc) (elements of malicious prosecution claim under § 1983); Roberts v. McAfee,

Inc., 660 F.3d 1156, 1163 (9th Cir. 2011) (elements of malicious prosecution claim

under California law). Contrary to Mnyandu’s contention, she was not excused

from her obligation to respond to defendants’ requests for admission because the

district court had authorized the parties to conduct discovery. See Fed. R. Civ.

P. 26(d) (prohibiting discovery prior to a Rule 26(f) conference except “when

authorized . . . by court order”).

2 18-55846 The district court did not abuse its discretion in dismissing Mnyandu’s

claims against defendants Colannino and Racowaschi under Federal Rules of Civil

Procedure 37(b)(2) and 41(b) because Mnyandu willfully failed to produce

documents in compliance with the district court’s discovery orders despite

receiving an extension of time and being warned that noncompliance could result

in dismissal. See Omstead v. Dell, Inc., 594 F.3d 1081, 1084 (9th Cir. 2010)

(standard of review and factors for determining whether to dismiss under Rule

41(b)); Conn. Gen. Life Ins. Co. v. New Images of Beverly Hills, 482 F.3d 1091,

1096-97 (9th Cir. 2007) (standard of review and factors for evaluating terminating

sanctions under Rule 37(b)(2)).

The district court did not abuse its discretion in denying Mnyandu’s motion

for default judgment as a sanction because defendants did not violate any

discovery orders or other court order. See Stars’ Desert Inn Hotel & Country

Club, Inc. v. Hwang, 105 F.3d 521, 524 (9th Cir. 1997) (standard of review).

The district court did not abuse its discretion in denying Mnyandu’s request

for disqualification of Magistrate Judge Mumm because Mnyandu failed to

establish any ground for recusal. See United States v. Sibla, 624 F.2d 864, 868-69

(9th Cir. 1980) (standard of review and circumstances requiring recusal under 28

3 18-55846 U.S.C. § 455).

We reject as without merit Mnyandu’s contention that the magistrate judge

acted without jurisdiction because the magistrate judge had jurisdiction to rule on

all non-dispositive, pretrial matters. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(a).

AFFIRMED.

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