Sean Rodney Orth v. Dennis Balaam

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SEAN RODNEY ORTH,
Plaintiff - Appellant,
v.
DENNIS BALAAM; JOSEPH LEVER;
REED THOMAS; DENISE GENIO;
MARY BOXX; WASHOE COUNTY
SHERIFF’S DEPARTMENT; KENNETH
HAMMON; DAVE KELLER; TAMMY
M. RIGGS; DAVID CLIFTON,
Defendants - Appellees.
No. 11-16182
D.C. No. 3:06-cv-00481-LRH-
RAM
MEMORANDUM*
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Submitted March 19, 2013**
Before: HUG, FARRIS, and LEAVY, Circuit Judges.
FILED
JUN 17 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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1 Because the parties are familiar with the facts underlying this appeal, we
do not recount the facts here.
2
Plaintiff Sean Orth appeals pro se the district court’s unfavorable decision in
his § 1983 action arising out of his arrest and pretrial detention on a retake warrant
issued by the Second Judicial District Court (“SJDC”) of Washoe County, Nevada.
We have jurisdiction under 28 U.S.C. § 1291, and we affirm.1
The district court’s dismissal on statute of limitations or absolute immunity
grounds is reviewed de novo. Torres v. City of Santa Ana, 108 F.3d 224, 226 (9th
Cir. 1997); Buckwalter v. Nevada Bd. of Medical Examiners 678 F.3d 737, 739
(9th Cir. 2012). Allegations in the complaint are taken as true and all reasonable
inferences are drawn in the plaintiff’s favor. See Buckwalter, 678 F.3d at 739.
“We review de novo a district court’s ruling on cross-motions for summary
judgment, including rulings based on qualified immunity.” Ford v. City of Yakima,
706 F.3d 1188, 1192 (9th Cir. 2013). Summary judgment is appropriate if, when
the evidence is viewed in the light most favorable to the non-moving party, there
are no genuine issues of material fact and the moving party is entitled to judgment
as a matter of law. McSherry v. City of Long Beach, 584 F.3d 1129, 1135 (9th Cir.
2009). The denial of leave to amend is reviewed for an abuse of discretion.
Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992).

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3
The district court properly dismissed Counts 1, 2, 4, and 5 as time-barred,
because Orth failed to bring his false arrest claims within two years of their accrual
on July 1, 2005. See Wallace v. Kato, 549 U.S. 384, 389-90 (2007) (holding that a
claim for false arrest accrues once an individual is held pursuant to legal process).
Orth’s malicious prosecution claims were properly dismissed because they were
based on conduct arising before legal process had issued. See id. at 390.
Count 6 was properly dismissed because prosecutors are entitled to absolute
immunity for their actions in procuring a warrant, so long as they do not act as
attesting witnesses. See Kalina v. Fletcher, 522 U.S. 118, 129 (1997); Burns v.
Reed, 500 U.S. 478, 492 (1991). The fact that the SJDC did not have jurisdiction
to issue the retake warrant does not strip the prosecutors of their absolute
immunity. See Imbler v. Pachtman, 424 U.S. 409, 427 (1976).
The district court properly granted summary judgment to defendants on
Count 3. The registered occupant of the motel room in which Orth was a guest
consented to the search, and the evidence shows the consent was voluntary. See
United States v. Watson, 423 U.S. 411, 424-25 (1976). To the extent that Orth
claims that the occupant was unlawfully seized, he does not have standing to bring
that claim. See Moreland v. Las Vegas Metro. Police Dept., 159 F.3d 365, 369

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4
(9th Cir. 1998) (“the general rule is that only the person whose Fourth Amendment
rights were violated can sue to vindicate those rights”).
Officer Thomas was entitled to summary judgment on Orth’s claims in
Count 7. Orth’s Fourth Amendment claim fails because even if Officer Thomas
had omitted information concerning the retake warrant, probable cause existed for
the warrant, thus giving the SJDC a separate and independent basis for issuing it.
See Smith v. Almada, 640 F.3d 931, 937-38 (9th Cir. 2011). Moreover, because
probable cause existed, Orth’s malicious prosecution claim fails. See Lassiter v.
City of Bremerton, 556 F.3d 1049, 1054-55 (9th Cir. 2009) (“probable cause is an
absolute defense to malicious prosecution.”). Lastly, Orth’s Fourteenth
Amendment claim fails because there is no evidence that Officer Thomas had any
involvement in the delay in bringing Orth before a magistrate after his arrest on the
retake warrant. See Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).
The district court properly granted summary judgment to Sheriff Balaam on
Count 8, alleging violations of the Fourth and Fourteenth Amendments. Regarding
Orth’s due process claim, there is no evidence that Sheriff Balaam participated in
the delay in Orth’s appearance before the magistrate; nor is there evidence that he
promulgated a policy causing that delay. See id.; Hansen v. Black, 885 F.2d 642,
646 (9th Cir. 1989). As to Orth’s Fourth Amendment claim, Sheriff Balaam is

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entitled to qualified immunity because it was reasonable for him to have held Orth
based on a warrant that was valid on its face. See Barlow v. Ground, 943 F.2d
1132, 1139-40 (9th Cir. 1991).
The defendants were entitled to summary judgment on Count 9, alleging that
Reno Police Officers and members of the Washoe County Sheriff’s Department
conspired to deprive Orth of his constitutional rights, because there is no evidence
that the defendants had an agreement to deprive Orth of his rights. See Franklin v.
Fox, 312 F.3d 423, 441 (9th Cir. 2002) (to prevail on a conspiracy claim, a plaintiff
must show an agreement to violate constitutional rights).
The district court properly granted summary judgment to defendants on
Count 10, alleging that the conditions of Orth’s pretrial detention constituted
punishment without due process. Orth’s placement in Behavioral Review, a form
of administrative segregation, was reasonably related to the detention facility’s
legitimate objective of maintaining safety and security; it therefore did not amount
to punishment. See Bell v. Wolfish, 441 U.S. 520, 540 (1979) (“[r]estraints that are
reasonably related to the institution’s interest in maintaining jail security do not,
without more, constitute unconstitutional punishment, even if they are
discomforting”). To the extent that Orth argues that he was entitled to a hearing
before his placement in Behavioral Review, his claim fails because he was not

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deprived of a liberty interest. See Serrano v. Francis, 345 F.3d 1071, 1078 (9th
Cir. 2003).
Finally, the district court did not abuse its discretion in denying Orth leave to
file a third amended complaint. Once the court has set a scheduling order under
Federal Rule of Civil Procedure 16, that order limits the time in which a party may
amend its pleading and may be modified only for good cause. Fed. R. Civ. Pro.
16(b). Orth failed to show good cause for his belated motion to amend his
complaint. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th
Cir. 1992).
Orth’s remaining contentions lack merit.
AFFIRMED.

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