FILED

NOT FOR PUBLICATION

MAY 18 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROBERT FRANK, Colonel, No. 16-16531

Plaintiff-Appellant, D.C. No. 2:12-cv-01988-JAD-NJK and

TIM STEBBINS, MEMORANDUM*

Plaintiff,

v.

CITY OF HENDERSON and JEFFREY FARLEY, Sergeant,

Defendants-Appellees.

Appeal from the United States District Court for the District of Nevada Jennifer A. Dorsey, District Judge, Presiding

Argued and Submitted February 14, 2018 San Francisco, California

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Before: BEA and N.R. SMITH, Circuit Judges, and LASNIK,** District Judge.

Robert Frank appeals the district court’s grant of summary judgment of

dismissal of the complaint in favor of the City of Henderson and Sergeant Jeffrey

Farley on Frank’s claims for malicious prosecution under 42 U.S.C. § 1983,

against Farley; and malicious prosecution under Nevada State law, against the City

of Henderson and Farley. We have jurisdiction under 28 U.S.C. § 1291, and we

affirm.

1. The district court did not err by granting summary judgment on the basis

that the undisputed facts show that Farley had probable cause to submit the warrant

affidavits. Probable cause existed to arrest Frank for violation of Nevada Revised

Statutes § 207.280 (false reporting of crimes). Frank’s police report was based on

the Homeowners Association (“HOA”) Board’s adoption of a resolution providing

that excess membership dues from 2007 would be rolled over to offset 2008

membership dues, without prior community approval. The police report contained

false allegations. First, Frank alleged that the Board received a tax research

memorandum which determined that “IRS Ruling [70-604] was improperly applied

because [the Board] did not either refund the excess assessments or apply it to

** The Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation. 2 reducing the next year’s membership assessments.” Quite to the contrary, the tax

research memorandum actually concluded that “the Association is acting within the

intent and substance of Revenue Ruling 70-604 by having the Board of Directors

make the annual election.” Second, Frank alleged that the tax research

memorandum “recommended both the members AND the Directors approve the

election method for returning excess/surplus assessment income to the

members/unit owners.” However, the tax research memorandum concluded that

the HOA Board had the legal authority to elect to reimburse the excess dues

without approval from the HOA members. Third, Frank alleged that the Board had

not attempted to refund the 2007 excess dues to the HOA members through a dues

holiday. During his investigation, however, Farley determined that Frank knew of,

voted on, and received a $100 dues holiday related to the 2007 excess HOA

membership income. Accordingly, Farley had probable cause to believe that Frank

knowingly misrepresented facts in the allegations Frank made in his police report,

to the effect that the HOA Board had acted improperly and in violation of the law.

At the time Farley submitted the warrant affidavits, therefore, he had probable

cause to arrest Frank for violation of Nevada Revised Statutes § 207.280. This is

an absolute defense to a claim for malicious prosecution. See Lassiter v. City of

Bremerton, 556 F.3d 1049, 1054-55 (9th Cir. 2009).

3 2. The district court did not err by granting summary judgment on the basis

that Frank failed to adduce evidence from which a reasonable fact-finder could

conclude that Farley wrongfully interfered with the independent judgment of either

the City Attorney’s Office or the special prosecutor. The City Attorney’s Office

and special prosecutor each independently reviewed Frank’s case and determined

that probable cause existed to find a violation of Nevada Revised Statutes §

207.280. Accordingly, Farley is not liable for damages suffered by Frank after the

City Attorney’s Office filed charges, because Frank has not demonstrated that

Farley presented evidence he knew was false in the affidavit for warrant or

influenced the prosecutor. See Blankenhorn v. City of Orange, 485 F.3d 463, 482

(9th Cir. 2007). Specifically, Farley’s warrant affidavit included exculpatory

evidence concerning Frank’s investigative efforts, as well as information about

Frank’s wife which was relevant to whether Frank deliberately and knowingly

made false statements to prompt an investigation of the Board members. Finally, a

Sun City resident presented “exculpatory evidence” to Farley after he submitted his

affidavit for warrant and criminal proceedings had commenced, which makes this

“exculpatory evidence” irrelevant to the determination of probable cause at the

time Farley submitted the affidavit.

4 3. We decline to reach Frank’s arguments that Farley is not entitled to

qualified immunity and that the district court erred by dismissing Frank’s claim

under Monell v. Department of Social Services, 436 U.S. 658 (1978). See U.S. Sec.

& Exch. Comm’n v. Jensen, 835 F.3d 1100, 1113 n.6 (9th Cir. 2016) (the “cardinal

principle of judicial restraint” is “if it is not necessary to decide more, it is

necessary not to decide more” (internal quotation marks omitted)).

AFFIRMED.

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