Robert Luke v. City of Tacoma

• Court: Court of Appeals for the Ninth Circuit
• Decided: June 16, 2022
• Docket: 21-35440
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION JUN 16 2022 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT H. LUKE, No. 21-35440

Plaintiff-Appellant, D.C. No. 3:18-cv-05245-BHS

v. MEMORANDUM* CITY OF TACOMA; et al.,

Defendants-Appellees,

and

FRANK KRAUSE,

Defendant.

Appeal from the United States District Court for the Western District of Washington Benjamin H. Settle, District Judge, Presiding

Submitted June 8, 2022** Seattle, Washington

* 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). Before: GILMAN,*** IKUTA, and MILLER, Circuit Judges.

Robert Luke appeals the district court’s grant of summary judgment on his

claims under 42 U.S.C. § 1983 and Washington state law in favor of individual

defendants Sean Gustason, Mike Ake, and Donald Ramsdell, and municipal

defendants City of Tacoma and City of Tacoma Police Department (TPD). We

have jurisdiction under 28 U.S.C. § 1291.

The district court did not err in holding that no reasonable juror could find in

favor of Luke on his claim for malicious-prosecution under § 1983. First, an

essential element of the malicious prosecution tort under Washington law is the

absence of probable cause, see Lassiter v. City of Bremerton, 556 F.3d 1049, 1054

(9th Cir. 2009) (citing Clark v. Baines, 150 Wash.2d 905, 911 (2004)), and no

reasonable juror could find in Luke’s favor on that element because the evidence

uncovered in Detective Schieferdecker’s investigation is “sufficient to warrant a

prudent person to believe,” Yousefian v. City of Glendale, 779 F.3d 1010, 1014

(9th Cir. 2015) (citation omitted), that Luke obtained control of TPD property

exceeding $750 in value by means of deception and with the intent to deprive the

TPD of that property, see Wash. Rev. Code §§ 9A.56.020(b), 9A.56.040(1)(a).

*** The Honorable Ronald Lee Gilman, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. 2 Second, Prosecutor Peters’s decision to press charges raises a presumption of

prosecutorial independence that insulates the individual defendants from liability,

see Smiddy v. Varney, 803 F.2d 1469, 1471 (9th Cir. 1986), and no reasonable

juror could find that any of the individual defendants submitted false information

to Peters, pressured Peters to act contrary to his independent judgment, concealed

exculpatory evidence, or otherwise engaged in wrongful or bad faith conduct

sufficient to rebut the presumption of prosecutorial independence,1 see Awabdy v.

City of Adelanto, 368 F.3d 1062, 1067 (9th Cir. 2004). We reject Luke’s argument

that the district court ignored circumstantial evidence and expert testimony

establishing that the individual defendants knew or should have known of defects

in Detective Schieferdecker’s investigation, because the circumstantial evidence

that Luke alleges is either not supported by the record or does not create a genuine

dispute of material fact as to whether Luke has overcome the presumption of

prosecutorial independence.

The district court did not err in holding that no reasonable juror could find in

favor of Luke on his claim for municipal liability because such liability is

1 Because of the absence of evidence upon which a reasonable juror could find that the individual defendants engaged in wrongful or bad faith conduct, we also reject Luke’s argument that the individual defendants acted with deliberate indifference and are therefore liable for their own “culpable action or inaction,” Starr v. Baca, 652 F.3d 1202, 1207 (9th Cir. 2011). 3 “contingent on a violation of constitutional rights,” Scott v. Henrich, 39 F.3d 912,

916 (9th Cir. 1994), and no reasonable juror could find a violation of Luke’s

constitutional rights.

Finally, the district court did not err in holding that no reasonable juror could

find in favor of Luke on his claims under Washington state law. First, Ake’s

alleged communication to Fiola and Cooper is a “communication to a single person

or a small group [that] does not qualify” as publicity for the purposes of a false-

light claim. Fisher v. State ex rel. Dep’t of Health, 125 Wash. App. 869, 879

(2005) (citing Restatement (Second) of Torts § 652D (1977)). Second, because the

undisputed evidence established that Luke’s termination was based on the fact that

Luke was charged with a felony, and that Luke’s conduct reflected “an integrity

issue” and posed “issues of liability, safety (working long hours) and the

appearance of wrong doing,” no reasonable juror could find that Ake’s

conversation with Fiola—which occurred well before the criminal investigation

into Luke’s conduct began—was the proximate cause of Luke’s termination, a

necessary element of Luke’s claim for tortious interference with a business

4 expectation.2 See Mut. of Enumclaw Ins. Co. v. Gregg Roofing, Inc., 178 Wash.

App. 702, 714 (2013). Moreover, no reasonable juror could find that Ake’s

communication with Fiola was “improper,” and Luke does not identify a “statute,

regulation, recognized rule of common law, or an established standard of trade or

profession” that Ake violated when he discussed Luke’s employment status at the

TPD with Fiola,3 Moore v. Com. Aircraft Interiors, LLC, 168 Wash. App. 502, 510

(2012).

AFFIRMED.

2 We need not address Luke’s argument that Detective Schieferdecker also tortiously interfered with his contract with the Port because Detective Schieferdecker is not a defendant in the case. 3 In his opening brief, Luke did not challenge the district court’s grant of summary judgment in favor of the defendants on his claim for negligent infliction of emotional distress, nor did he challenge the district court’s dismissal of his claim for a hostile work environment under Wash. Rev. Code § 49.60. Luke has therefore forfeited any such challenges. See Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999). 5