NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT JUN 19 2015

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

ASSOCIATION FOR LOS ANGELES No. 13-55751 DEPUTY SHERIFFS, in Its Representational Capacity, on Behalf of its D.C. No. 2:08-cv-00238-RGK- Members; et al., FFM

Plaintiffs - Appellants,

MEMORANDUM*

v.

COUNTY OF LOS ANGELES, a Municipal Corporation; et al.,

Defendants - Appellees.

ASSOCIATION FOR LOS ANGELES No. 13-55864 DEPUTY SHERIFFS, in Its Representational Capacity, on Behalf of its D.C. No.2:08-cv-00238-RGK- Members; et al., FFM

Plaintiffs - Appellees,

v.

COUNTY OF LOS ANGELES, a Municipal Corporation; et al.,

Defendants - Appellants.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. Appeal from the United States District Court for the Central District of California R. Gary Klausner, District Judge, Presiding

Argued and Submitted May 8, 2015 Pasadena, California

Before: NOONAN, WARDLAW, and MURGUIA, Circuit Judges.

The Association for Los Angeles Deputy Sheriffs and the County of Los

Angeles bring cross-appeals of the district court’s grants of summary judgment in a

case concerning the requirements of due process when law enforcement officers

are charged with felonies and suspended without pay. We have jurisdiction under

28 U.S.C. § 1291, and we affirm.

This is the second appeal of this case. A detailed factual recitation is found

in Association for Los Angeles Deputy Sheriffs v. County of Los Angeles (ALADS),

648 F.3d 986, 989-91 (9th Cir. 2011).

On remand, the district court granted summary judgment against plaintiffs

Debs and O’Donoghue. “We review de novo the district court’s grant of summary

judgment.” Oswalt v. Resolute Indus., Inc., 642 F.3d 856, 859 (9th Cir. 2011).

Debs and O’Donoghue argue that the ten-day evidentiary hearings they received

following their suspensions were inadequate because the County applied a blanket

policy of upholding all suspensions based on felony charges. Even if the County

2 followed such a policy, no due process violation resulted because Debs and

O’Donoghue were free to challenge the Commission’s orders in state court. See

Cal. Civ. Proc. Code §§ 1094.5(a), 1094.6(e); Hudson v. Palmer, 468 U.S. 517,

533 (1984) (holding that a deprivation of property does not violate due process if

“adequate state post-deprivation remedies are available”).

The district court determined that because it granted summary judgment

against Debs and O’Donoghue, they were not prevailing parties and not entitled to

attorney’s fees. “We review a district court’s decision to deny attorney’s fees for

an abuse of discretion” and “review a district court’s determination regarding

‘prevailing party’ status de novo.” La Asociacion de Trabajadores de Lake Forest

v. City of Lake Forest, 624 F.3d 1083, 1089 (9th Cir. 2010). “[T]o qualify as a

prevailing party, a civil rights plaintiff must obtain at least some relief on the

merits of his claim. The plaintiff must obtain an enforceable judgment against the

defendant . . . or comparable relief through a consent decree or settlement.

Whatever relief the plaintiff secures must directly benefit him at the time of the

judgment or settlement.” Farrar v. Hobby, 506 U.S. 103, 111 (1992) (citations

omitted). Debs and O’Donoghue did not obtain an enforceable judgment or any

comparable relief against the County that would render them prevailing parties.

3 Therefore, we affirm the district court’s denial of attorney’s fees to Debs and

O’Donoghue.

The district court granted summary judgment in favor of plaintiffs

Wilkinson and Sherr, who did not receive any type of post-suspension hearings.

We previously concluded that Wilkinson and Sherr did not receive “sufficient post-

suspension process to satisfy constitutional requirements” and that the County had

a “constitutional obligation to provide some form of post-suspension hearings.”

ALADS, 648 F.3d at 993. We therefore affirm the district court’s grant of summary

judgment.

The district court granted attorney’s fees to Wilkinson and Sherr but

awarded them only nominal damages, finding that the deputies “failed to offer

adequate proof of actual injury.” The district court did not err in its determinations

that the loss of back pay was not causally related to the due process claim on which

Wilkinson and Sherr prevailed, that they offered no evidence of medical expenses

incurred, and that they offered insufficient evidence of physical and emotional

injury as a result of the denial of due process. We therefore affirm the district

court’s award of nominal damages.

The district court denied the plaintiffs’ motion to amend their complaint to

add three other deputies who received suspensions resulting from unrelated

4 incidents, finding that the claims of the three proposed plaintiffs were barred by the

statute of limitations. “ We review the denial of a motion to amend for abuse of

discretion.” Hall v. City of Los Angeles, 697 F.3d 1059, 1072 (9th Cir. 2012).

Neither the relation back doctrine nor the equitable tolling doctrine serve to make

timely the claims of the proposed plaintiffs. See Bartalo v. Super. Ct., 124 Cal.

Rptr. 370, 374–75 (Cal. Ct. App. 1975) (holding that the claims of a “new and

additional party” do not relate back to a timely filed complaint unless the new party

was substituted for an original party erroneously joined); Collier v. City of

Pasadena, 191 Cal. Rptr. 681, 685 (Cal. Ct. App. 1983) (holding that a party is not

entitled to equitable tolling unless that party acted reasonably and in good faith to

assert his claims during the limitations period). We affirm the district court’s denial

of the motion to amend the complaint.

AFFIRMED.

5

FILED

Association for Los Angeles County Deputy Sheriffs v. County of Los Angeles, No. 13-55751 JUN 19 2015

MOLLY C. DWYER, CLERK

WARDLAW, Circuit Judge, concurring: U.S. COURT OF APPEALS

I agree with the disposition, but disagree that Deputies Debs and

O’Donoghue were afforded adequate post-deprivation process based on the

availability of state court review.

In Association for Los Angeles County Deputy Sheriffs v. County of Los

Angeles (ALADS I), 648 F.3d 986 (9th Cir. 2011), we recognized that Debs and

O’Donoghue could have pursued petitions for mandamus in Los Angeles Superior

Court but chose instead to pursue procedural due process claims in federal court.

Id. at 991 n.4. Knowing that the state courts were available, see id. at 991 n.4, 992

n.5, we nevertheless reversed the dismissal of the deputies’ procedural due process

claim, see id. at 993-97 (analyzing the constitutionality of the procedures and

giving no weight to—and, indeed, entirely failing to mention—the availability of

state court review). In short, ALADS I is inconsistent with the holding here that the

availability of state court proceedings could salvage an otherwise inadequate post-

suspension process.

I agree, however, that Debs and O’Donoghue were afforded adequate

process based on the applicable substantive standard for suspension without pay

Page 1 of 3 that was established by the County. Property interests, and the substantive

standards for depriving individuals of those interests, are established by state and

local law, not federal courts reviewing procedural due process claims. See Gilbert

v. Homar, 520 U.S. 924, 933 (1997); Cleveland Bd. of Educ. v. Loudermill, 470

U.S. 532, 538-39 (1985). Here, the substantive standard is found in Los Angeles

County Civil Service Rules 18.01(A) and 18.031, which provide that the pendency

of a felony charge against a deputy may be grounds for suspension. The deputies

concede that the County’s process was adequate to reliably determine whether

felony charges were in fact pending against the deputies. That the deputies may

not have received a meaningful opportunity to dispute the underlying merits of the

pending felony charges is immaterial because the applicable substantive standard

permits suspension regardless of whether the charges are meritorious. Applying

the Mathews v. Eldridge balancing test, 424 U.S. 319, 335 (1976), and in light of

the operative substantive standard, the County’s process was adequate. See

Gilbert, 520 U.S. at 933 (recognizing that little process is needed when there is

“nothing to consider at the hearing except the independently verifiable fact of

whether an employee had indeed been formally charged with a felony”).

This conclusion was not foreclosed by ALADS I. There, we stated that “[w]e

need not and do not decide whether, in all cases, a post-suspension hearing that

Page 2 of 3 looks no deeper than whether felony charges were filed against an employee would

or would not pass constitutional muster.” 648 F.3d at 994 (emphasis added). We

explicitly left it to the district court to conduct a Mathews v. Eldridge balancing

test “in the first instance.” Id. at 995. The district court did so, and its conclusion

is what we are called upon to review in this appeal.

To be sure, in ALADS I, we rejected the dissent’s claim “that the felony

charges were sufficient cause to justify the suspensions of Debs and O’Donoghue”

based on “the Supreme Court’s decision in Gilbert and Los Angeles County Civil

Service Rule 18.031,” but our disagreement with the dissent was limited to “this

stage of proceedings.” Id. We are now at a new stage of proceedings, so to the

extent that ALADS found inadequate a process inquiring no further than whether

felony charges were filed, ALADS is no longer binding by its own terms. Further,

while ALADS discussed Civil Service Rule 18.031, it did not mention Rule

18.01(A), which bolsters the conclusion that the pendency of a felony charge was

sufficient, as a substantive matter, to justify the deputies’ suspensions.

Page 3 of 3