BACKGROUND

O.L. met her alleged assailant online and went on a date with him. She

claimed that he raped her later that night, and she reported it to the EMPD. O.L.

showed Officer Martha Tate messages on her cell phone between herself and the

alleged assailant. In those messages, O.L. casually discussed the sexual activity that

occurred the night of the alleged rape and agreed to meet him again for a future

sexual encounter. Based on these messages, Officer Tate questioned O.L. about

alcohol use, consent, and her motive for reporting the alleged crime.

O.L.’s case was later transferred to LASD. Detective Liliana Jara interviewed

her. O.L. showed Detective Jara the same messages on her cell phone. Detective

Jara also saw a message in which O.L. told the alleged assailant that she “could make

him lose his job” after she discovered that he had remained active on the online

dating website where they met. The detective, too, questioned O.L. about her motive

for reporting the alleged crime and ultimately told O.L. that her case suffered from

2 many problems.

At the end of the interview, O.L. agreed to provide her cell phone to LASD to

download messages. O.L. provided Detective Jara with her cell phone password and

signed a form giving LASD consent to search the phone for “any and all data” related

to the case. Before returning the phone to her, LASD’s task force downloaded the

phone’s data onto a USB drive to allow the investigating officer to review the data.

O.L. then retrieved her cell phone from LASD custody.

After the Los Angeles District Attorney declined to file charges against the

alleged assailant, O.L. filed a pro se complaint. The district court denied O.L.’s

request to proceed under a pseudonym, and O.L. filed an amended complaint

replacing “Jane Doe” with her supposed initials. The district court dismissed the

equal protection and Monell claims, and then granted summary judgment for

defendants on the Fourth Amendment claim.

DISCUSSION

1. Fourth Amendment Claim: O.L. argues that Detective Jara unlawfully

searched her phone and that LASD’s copying of data from her phone amounted to

an illegal seizure.

First, O.L. has not shown that Detective Jara violated her Fourth Amendment

right against unreasonable searches. O.L.’s only evidence that her phone was

searched is a screenshot image of a single message on her phone from a friend that

3 was translated from Chinese into English in her WeChat App. She claims that the

message was translated while the phone was in LASD’s custody, but the screenshot

she provided does not show when the translation happened. O.L. cannot create a

factual dispute by speculating that Detective Jara searched the phone and translated

the message. See Loomis v. Cornish, 836 F.3d 991, 997 (9th Cir. 2016) (“[M]ere

allegation and speculation do not create a factual dispute for purposes of summary

judgment.” (alternation in original) (citation omitted)).

In any event, O.L. consented to the search. She admits to signing a form when

she voluntarily gave her cell phone and its password to Detective Jara. O.L.’s

signature is on a form called “Entry and Search Waiver,” which is dated that same

day. The form gave LASD “full and unconditional authority,” and “unrestricted

access” to search O.L.’s cell phone. O.L. maintains that she did not sign this form,

but she has abandoned the argument that her signature was forged by failing to

challenge the district court’s finding on appeal. The only plausible inference is that

O.L. signed the search waiver form when she gave her cell phone to Detective Jara.

See Scott v. Harris, 550 U.S. 372, 380 (2007) (“When opposing parties tell two

different stories, one of which is blatantly contradicted by the record, so that no

reasonable jury could believe it, a court should not adopt that version of the facts for

purposes of ruling on a motion for summary judgment.”).

Second, qualified immunity bars her unlawful seizure claim because it is not

4 clearly established that copying electronic data for review after voluntarily agreeing

to a search amounts to a Fourth Amendment violation. See Sharp v. County of

Orange, 871 F.3d 901, 911 (9th Cir. 2017) (requiring “prior case law that articulates

a constitutional rule specific enough to alert [the officer] in this case that [her]

particular conduct was unlawful” (emphases omitted)). In Arizona v. Hicks, the

Supreme Court held that the police copying down the serial numbers on stereo

equipment “did not constitute a seizure” because “it did not meaningfully interfere

with respondent’s possessory interest in either the serial numbers or the equipment.”

480 U.S. 321, 324 (1987) (internal quotation marks omitted). While the nature of

cell phone data is different than serial numbers on a stereo, it is unsettled as to how

far the “possessory interest” principle extends.

O.L.’s reliance on United States v. Comprehensive Drug Testing, Inc. (CDT)

is misplaced. See 621 F.3d 1162 (9th Cir. 2010) (en banc) (per curiam), overruled

in part on other grounds as recognized by Demaree v. Pederson, 887 F.3d 870, 876

(9th Cir. 2018) (per curiam). In that case, the court authorized the federal

government to seize “considerably more data than that for which it had probable

cause,” subject to certain procedural safeguards. Id. at 1168–69. The government,

however, ignored the required protocols, seized large amounts of data, and later

justified its retention of the seized data under the “plain view” doctrine. Id. at 1169–

72. On appeal, we cautioned against the government retaining unresponsive data

5 based on the plain view doctrine. Id. at 1169–71, 1174. We, however, recognized

that “over-seizing is an inherent part of the electronic search process.” Id. at 1177;

see also United States v. Flores, 802 F.3d 1028, 1044–45 (9th Cir. 2015). CDT does

not put it beyond debate that law enforcement making a temporary local copy of cell

phone data while consensually possessing the phone constitutes an unlawful seizure.

2. Equal Protection Claim: To state an equal protection claim under § 1983,

O.L. must plausibly allege facts showing that “the defendants acted with an intent or

purpose to discriminate against [her] based upon membership in a protected class.”

Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th Cir. 2001) (internal quotation

marks omitted). She does not allege facts showing that the officers treated her

investigation differently than other criminal investigations. For example, she alleges

that Officer Tate asked O.L.: “What made her think she was a victim of rape.” The

Second Amended Complaint then simply concludes that “[v]ictims of other type[s]

of crimes would not be asked the same question.” “Threadbare recitals of the

elements of a cause of action, supported by mere conclusory statements,” however,

“do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

3. Monell claims: O.L. failed to state cognizable Monell claims against the

City of El Monte and the County of Los Angeles. To establish municipal liability,

O.L. must allege: “(1) she was deprived of a constitutional right; (2) [EMPD and

LASD] had a policy; (3) the policy amounted to a deliberate indifference to her

6 constitutional right; and (4) the policy was the moving force behind the

constitutional violation.” Mabe v. San Bernardino County, Dept. of Pub. Soc. Servs.,

237 F.3d 1101, 1110–11 (9th Cir. 2001) (internal quotation marks omitted).

O.L.’s Monell claim for violation of equal protection fails because she did not

show any underlying constitutional violation. See Lockett v. County of Los Angeles,

977 F.3d 737, 741 (9th Cir. 2020). Moreover, O.L.’s conclusory allegations focus

only on the handling of her case, and she has not articulated any “persistent and

widespread” customs that “constitute a permanent and well settled city policy.”

Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996) (internal quotation marks

omitted).

4. Leave to amend: The district court did not abuse its discretion in denying

O.L. leave to amend her complaint for the third time. O.L. had already amended her

complaint, and, before ruling on the motion to dismiss, the judge stopped the

proceedings multiple times to allow O.L. time to think about additional allegations

to cure her complaint. But O.L. responded with redundant allegations and

conclusory statements.

5. Redaction: The district court did not abuse its discretion in denying O.L.’s

motion to seal an exhibit filed with the court. See Pintos v. Pac. Creditors Ass’n,

7 605 F.3d 665, 679 (9th Cir. 2010).1 O.L. contends that sealing or redacting a portion

of the record is “necessary to preserve [her] anonymity,” but the district court

determined that the portion of the record at issue did not “itself identify [O.L.] by

name.” O.L. has not challenged this finding on appeal or shown that this finding

was “illogical, implausible, or without support in inferences that may be drawn from

the record.” United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en

banc). O.L. has not met her burden of showing a “compelling reason” for sealing

the document. Kamakana v. City & County of Honolulu, 447 F.3d 1172, 1178 (9th

Cir. 2006). We thus affirm the district court’s denial of the request to seal.2

AFFIRMED.

1 O.L. has filed similar cases in other courts involving different individuals and municipalities. Decl. of Erin R. Dunkerly at 13–14, O.L. v. City of El Monte, et al., No. 21-55246 (9th Cir. Aug. 9, 2021), ECF No. 5; see, e.g., Doe v. City of Concord, No. 22-15384 (9th Cir. docketed March 15, 2022); Doe v. U.S Dist. Ct. for the Cent. Dist. of Cal., No. 22-70056 (9th Cir. denied April 19, 2022). In those other cases, as here, she proceeds either as Jane Doe or by initials (which may or may not be her own). While O.L. makes it difficult to track her cases because she uses initials or pseudonyms, we caution that “[f]lagrant abuse of the judicial process cannot be tolerated because it enables one person to preempt the use of judicial time that properly could be used to consider the meritorious claims of other litigants.” De Long v. Hennessey, 912 F.2d 1144, 1148 (9th Cir. 1990). 2 O.L. requests that this same document be redacted or sealed in the record on appeal. Because O.L. has not met her burden of showing a “compelling reason” to seal the document, we decline to order this document sealed in the record before this court.

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