Steven Peck v. Margaret Hinchey

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 7, 2019
• Docket: 17-16397
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 7 2019 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

STEVEN PECK; et al., No. 17-16397

Plaintiffs-Appellants, D.C. No. 2:12-cv-01371-JAT

v. MEMORANDUM* MARGARET HINCHEY, individually and in her official capacity as a peace officer with the Arizona Attorney General's Office,

Defendant-Appellee.

Appeal from the United States District Court for the District of Arizona James A. Teilborg, District Judge, Presiding

Submitted March 4, 2019** Phoenix, Arizona

Before: CLIFTON, IKUTA, and FRIEDLAND, Circuit Judges.

Plaintiffs-Appellants Steven Peck, Benjamin Sywarungsymun, Aaron Lentz,

and Shannon Lentz (“Plaintiffs”) brought a 42 U.S.C. § 1983 action against

Defendant-Appellee Attorney General Special Agent Margaret Hinchey. In that

* 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). action, Plaintiffs alleged that Hinchey violated their due process rights and

maliciously caused their prosecution by fabricating evidence in several reports to

the Arizona Attorney General to show that they worked fewer hours in an off-duty

job than they had reported working, constituting theft. The district court granted

summary judgment to Hinchey on both the deliberate fabrication and malicious

prosecution claims on the basis of qualified immunity.1 We review de novo the

district court’s grant of summary judgment. See Longoria v. Pinal Cty., 873 F.3d

699, 703-04 (9th Cir. 2017).

We affirm the grant of summary judgment on the deliberate fabrication

claims. Viewing the evidence in the light most favorable to the non-moving party,

see Cortez v. Skol, 776 F.3d 1046, 1050 (9th Cir. 2015), Plaintiffs have failed to

raise a genuine issue of material fact that Hinchey deliberately made a false

statement or fabricated evidence, as opposed to making reasonable mistakes in

methodology or in interpreting data. See Spencer v. Peters, 857 F.3d 789, 798-99

(9th Cir. 2017). Nor have Plaintiffs raised a genuine issue of material fact that

Hinchey knew or should have known that Plaintiffs were innocent or that Hinchey

used investigative techniques that were so coercive and abusive that she knew or

should have known that those techniques would yield false information. See

1 We had previously determined that Hinchey was not entitled to absolute immunity in an earlier appeal. See Peck v. Hinchey, 655 F. App’x 534, 536 (9th Cir. 2016).

2 Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (en banc). And because

Plaintiffs’ argument on appeal that Hinchey acted with malice is entirely dependent

on the premise that Hinchey deliberately fabricated evidence, we affirm on the

malicious prosecution claim as well.

AFFIRMED.2

2 We grant Plaintiffs’ motion for leave to file an annotated version of their controverting statement of facts and bookmarked PDF copy of the excerpts of record. We also remind Plaintiffs, however, that “it is not our task, or that of the district court, to scour the record in search of a genuine issue of material fact. We rely on the nonmoving party to identify with reasonable particularity the evidence that precludes summary judgment.” Keenan v. Allan, 91 F.3d 1275, 1279 (9th Cir. 1996) (quotations and brackets omitted). Factual citations in parties’ briefs should identify that evidence. Many citations in Plaintiffs’ briefs do not. In many instances, an individual citation directs the court to several different parts of the record, the vast majority of which provide little or no support for the cited proposition. In that respect, these briefs “obfuscate[] rather than promote[] an understanding of the facts.” See id. That is not of assistance to this court and does not support an argument that there are genuine issues of fact.