Opinion
No. 05-56613. D.C. No. CV-97-00413-JAH.
This panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
April 25, 2007.
Appeal from the United States District Court for the Southern District of California John A. Houston, District Judge, Presiding.
Before: FARRIS, BOOCHEVER, and LEAVY, Circuit Judges.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Richard P. Loritz, II (Loritz) appeals pro se the district court's judgment in his 42 U.S.C. § 1983 action. We have jurisdiction pursuant to 28 U.S.C. § 1291. The parties are familiar with the prior proceedings. We affirm the judgment of the district court.
A. Fourteenth Amendment Claim
Loritz contends that the district court should have ruled as a matter of law that defendants were liable on his interrogation claim, determining as a matter of law that the police interrogation "shocked the conscience." Loritz contends that the court should have sent only the issue of damages on this claim to the jury. Loritz' argument is without merit. At the close of Loritz' case in chief, defendants Sheriff Detectives Hanson, Caloca, and Ryzdynski moved for judgment as a matter of law under Fed.R.Civ.P. 50(a) on the interrogation claim. The court denied the motion, noting that Loritz "testified that he was threatened with the infliction of physical harm if he did not make a statement," thereby determining that Loritz had succeeded in raising a contested issue whether the defendants' behavior so shocked the conscience as to establish a Fourteenth Amendment violation. See Cooper v. Dupnik, 963 F.2d 1220, 1248-50 (9th Cir. 1992) (explaining that interrogation that "shocks the conscience" can be actionable under § 1983). The jury, however, weighed conflicting evidence and rejected Loritz' interrogation claim. Loritz' claim therefore ends with the jury's unfavorable decision.
Loritz next contends that the district court erred in excluding the latter portion of the transcript of the interrogation. We disagree. Nothing in that portion of the transcript suggests coercion or threat of harm that would raise a triable issue for the jury on Loritz' interrogation claim. See Onossian v. Block, 175 F.3d 1169, 1172 (9th Cir. 1999) ("[I]t is clear that no reasonable trier of fact could find that defendants' actions shock the conscience.").
B. Fourth Amendment Claims
Loritz contends that the district court erred in granting defendant Sheriff Detective Eric Larson's motion for judgment as a matter of law under Fed.R.Civ.P. 50(a) on Loritz' Fourth Amendment claim. Larson entered Loritz' house without a warrant and took photographs throughout the house. Loritz argues that the search was illegal because Larson searched areas that were not necessary to respond to the emergency. We reject this argument.
Exigent circumstances justify a warrantless entry and search when police officers, acting in good faith, reasonably believe from the totality of circumstances that evidence will immediately be destroyed.See United States v. Ojeda, 276 F.3d 486, 488 (9th Cir. 2002). Photographs of the interior of the house were taken shortly after the shooting while people were still walking around in the house and the house was not fully secured. Larson testified that he did not open or search anything other than take a roll of film. The film was never developed or used. Under these undisputed facts, the district court did not err in dismissing Loritz' Fourth Amendment claim against Larson.Id.
Loritz also contends that the district court erred in granting defendant Tapper's motion for judgment as a matter of law under Fed.R.Civ.P. 50(a) on Loritz' Fourth Amendment claim. Tapper drew Loritz' blood without Loritz' consent. The district court determined that Tapper was not a peace officer and therefore the applicable statute of limitations had expired. This factual determination is not clearly erroneous, and we affirm on that basis. Furthermore, the seriousness of Loritz' offense and the possibility of disintegrating evidence justified the non-consensual extraction of blood from Loritz under the facts of this case.
Loritz also contends that the district court erred in determining he was collaterally estopped from litigating whether his Fourth Amendment rights were violated when the sheriffs searched his residence and seized several items. The district court did not err. This issue was litigated and decided by the state courts and cannot be relitigated in Loritz' § 1983 proceeding. Ayers v. City of Richmond, 895 F.2d 1267, 1271-72 (9th Cir. 1990). Additionally, the discrepancies in the sheriffs' testimonies do not raise a plausible suggestion that anyone lied under oath.
C. Jury Instructions
Loritz contends that the district court erred in failing to give his requested instruction on the denial of his access to the telephone. The rejection of the instruction was not an abuse of discretion. Contrary to Loritz' reading, People v. Locke, 152 Cal. App. 3d 1130 (Cal.Ct.App. 1984), has not established a substantive right to be advised of the right to make a phone call. The jury heard conflicting evidence whether a sign was posted as required in California. The jury was adequately instructed and ultimately found against Loritz.
Loritz also contends that the district court erred in failing to give his requested instruction on his interrogation claim. The rejection of the instruction was not an abuse of discretion. The court's instruction concerning the Fifth Amendment was not misleading or incomplete. See Chavez v. Martinez, 538 U.S. 760, 770-75 (2003) (discussing when the privilege against self-incrimination can be asserted).
Loritz also contends that the given instruction on his interrogation claim misstated the law by stating that an officer may continue to talk to a suspect after the suspect has invoked his right to remain silent. The given instruction was not misleading. The Supreme Court has rejected a literal interpretation of Miranda, stating that the exercise of the right to remain silent does not automatically preclude all further questioning.See Michigan v. Mosley, 423 U.S. 96, 104-07 (1975); United States v. Hsu, 852 F.2d 407, 410 (9th Cir. 1988).
D. Municipal Liability
Loritz contends that the district court erred in granting the motion for judgment as a matter of law under Fed.R.Civ.P. 50(a) for Loritz' claims against the County of San Diego and Sheriff Kolander on the basis that these defendants were state actors when investigating this shooting crime. We need not reach the merits of this legal argument in order to affirm the district court's decision. Liability of the municipal defendants under § 1983 is contingent on a violation of constitutional rights, and if there has been no violation of an individual's constitutional rights, then the claims against the municipal defendants must be dismissed. See Scott v. Henrich, 39 F.3d 912, 916 (9th Cir. 1994). Nor is this a case where collective municipal inaction or failure in training has given rise to an established constitutional deprivation.See Fairley v. Luman, 281 F.3d 913, 917 (9th Cir. 2002).
In summary, the jury found no liability on the part of Sheriff Detectives Hanson, Caloca, and Ryzdynski, and we affirm the judgment. We have affirmed the judgment as matter of law on the claims against the remaining defendants. Finally, Loritz has failed to establish a constitutional deprivation that was a consequence of a municipal policy.
AFFIRMED.