Thurston Myers v. Thomas Brooks

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 22, 2021
• Docket: 19-35869
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 22 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

THURSTON MYERS, No. 19-35869

Plaintiff-Appellant, D.C. No. 2:18-cv-01043-RAJ

v. MEMORANDUM* THOMAS J. BROOKS, Sergeant; et al.,

Defendants-Appellees,

and

JANE DOES, Brooks, Mason, Williams, Jensen,1-34; et al.,

Defendants.

Appeal from the United States District Court for the Western District of Washington Richard A. Jones, District Judge, Presiding

Submitted April 20, 2021**

Before: THOMAS, Chief Judge, TASHIMA and SILVERMAN, Circuit Judges.

* 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). Thurston Myers appeals pro se from the district court’s summary judgment

in his 42 U.S.C. § 1983 action alleging constitutional violations arising from a

search of his residence, seizure of property, and his arrest. We have jurisdiction

under 28 U.S.C. § 1291. We review de novo. Long v. City & County of Honolulu,

511 F.3d 901, 905 (9th Cir. 2007). We affirm.

The district court properly granted summary judgment for defendants

Brooks and Mason on Myers’s unlawful search, seizure, and false arrest claims

because Myers failed to raise a genuine dispute of material fact as to whether the

search of his property or his arrest lacked probable cause. See Cameron v. Craig

713 F.3d 1012, 1018 (9th Cir. 2013) (probable cause standard for search); Beier v.

City of Lewiston, 354 F.3d 1058, 1064 (9th Cir. 2004) (probable cause standard for

arrest); see also Yousefian v. City of Glendale, 779 F.3d 1010, 1014 (9th Cir. 2015)

(the absence of probable cause is an essential element of a § 1983 false arrest

claim).

The district court properly granted summary judgment on Myers’s municipal

liability claim under Monell v. Department of Social Services, 436 U.S. 658

(1978), because Myers failed to raise a triable dispute as to whether any policy or

custom of the City of Lynwood caused him to suffer constitutional injuries. See

Monell, 436 U.S. at 690 n.55, 694-95 (municipal liability under § 1983 requires

execution of policy or custom that inflicts plaintiff’s constitutional injury).

2 19-35869 To the extent Myers alleged a due process claim, the district court properly

granted summary judgment because Myers failed to raise a triable dispute as to

whether he lacked notice of the seizure of his property or an opportunity to be

heard prior to forfeiture. See Wash. Rev. Code § 69.50.505(3), (5) (setting forth

procedures for notice of seizure and intended forfeiture of seized property and

reasonable opportunity to be heard upon written notice of a claim of ownership or

right to possession); SEC v. McCarthy, 322 F.3d 650, 659 (9th Cir. 2003) (due

process requires notice and an opportunity to be heard).

The district court did not abuse its discretion by striking the testimony of

Myers’s expert witness because Myers failed to comply with the requirements of

Federal Rule of Civil Procedure 26(a). See Fed. R. Civ. P. 26(a)(2) (requirements

for disclosure of expert testimony), 37(c)(1) (a party’s failure to provide

information or identify a witness as required by Rule 26(a), unless substantially

justified or harmless, prohibits that party’s use of the information or witness to

supply evidence; United States v. Morales, 108 F.3d 1031, 1035 (9th Cir. 1997)

(en banc) (setting forth standard of review).

We do not consider matters not specifically and distinctly raised and argued

in the opening brief, or arguments and allegations raised for the first time on

appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

AFFIRMED.

3 19-35869