Glen Scotti v. City of Phoenix

dissenting in part:

I would affirm as to all defendants except Detective Freund. In my view, a reasonable jury could conclude that Freund knew she lacked probable cause to believe Scotti had aided and abetted a violation of Ariz.Rev.Stat. § 13-2923(A)(2) (2001) (amended 2012), yet nonetheless instituted charges as a means of retaliating against Scotti for exercising his First Amendment rights — namely, for publicly criticizing Freund on his web site.

Once we excise from Freund’s report the statements Freund falsely attributed to “Dr.” Gray, the existence of probable cause turns on statements Lewis allegedly made to Freund. The problem here is that during the course of discovery, Freund never deposed Lewis, so we don’t know whether Lewis in fact made the statements attributed to her. On the current record, a jury would have to take Freund’s word for it that Lewis actually made the statements recounted in Freund’s report. Because Scotti has already shown that Freund falsely represented the statements “Dr.” Gray supposedly made, I think a reasonable jury could harbor serious doubts about whether Freund truthfully represented the statements Lewis supposedly made as well.

If the…

MEMORANDUM *

Scotti appeals from the district court’s order granting summary judgment against him on his section 1983 malicious prosecution claim and his state-law negligence claims. He also appeals from the district court’s interlocutory rulings declining to take judicial notice and to apply judicial estoppel.

We have jurisdiction pursuant to 28 U.S.C. § 1291 . We review a summary judgment de novo, Colwell v. Bannister, 763 F.3d 1060, 1065 (9th Cir.2014), and we review the particular interlocutory rulings challenged here for an abuse of discretion. See Ritter v. Hughes Aircraft Co., 58 F.3d 454, 458 (9th Cir.1995) (judicial notice); United States v. Ibrahim, 522 F.3d 1003, 1009 (9th Cir.2008) (judicial estoppel). We affirm.

I.

We begin with Scotti’s malicious prosecution claim. We are concerned about some of Detective Freund’s actions and the overall poor quality of police work which produced misleading and, in some cases, outright false statements to Scotti’s prosecutors. For example, rather than independently obtain and analyze the family court order, Freund relied upon Kimberly Lewis’s statements about its contents, which led to misstatements about what constituted…

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT MAY 01 2015

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

GLEN R. SCOTTI, an individual, No. 13-15209

Plaintiff - Appellant, D.C. No. 2:09-cv-01264-TMB

v.

MEMORANDUM*

CITY OF PHOENIX, a political subdivision of the State of Arizona; JACK

HARRIS; MARY FREUND; CHRISTINA

GONZALEZ; DAVID SAMPSON;

SANDRA RENTERIA,

Defendants - Appellees.

Appeal from the United States District Court for the District of Arizona Timothy M. Burgess, District Judge, Presiding

Argued and Submitted March 13, 2015 San Francisco, California

Before: WALLACE, M. SMITH, and WATFORD, Circuit Judges.

Scotti appeals from the district court’s order granting summary judgment

against him on his section 1983 malicious prosecution claim and his state-law

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. negligence claims. He also appeals from the district court’s interlocutory rulings

declining to take judicial notice and to apply judicial estoppel.

We have jurisdiction pursuant…