Fuller v. M.G. Jewelry, 89-55710

Citation950 F.2d 1437
Decision Date11 December 1991
Docket NumberNo. 89-55710,89-55710
PartiesAnnise FULLER, Roshaun Fuller, Plaintiffs-Appellants, v. M.G. JEWELRY, Pravis Kashanian, Officer Liggett, Officer Parga, Officer Barham, City of Los Angeles, County of Los Angeles, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Edward M. Fox, Klass, Helman & Ross, Los Angeles, Cal., for plaintiffs-appellants.

Richard W. Helgeson, Deputy City Atty., Los Angeles, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before PREGERSON, REINHARDT and HALL, Circuit Judges.

PREGERSON, Circuit Judge:

Plaintiffs-Appellants Annise and Roshaun Fuller were arrested on suspicion of grand theft of a ring from M.G. Jewelry. Pursuant to their arrest, the Fullers were subjected to strip and visual body cavity searches, which revealed no evidence of any crime. No charges were ever filed against them.

As a result of the arrest and searches, the Fullers brought a civil rights action under 42 U.S.C. § 1983 against the County of Los Angeles, the City of Los Angeles, and three individual police officers. The district court granted summary judgment against the Fullers. The court concluded that probable cause existed to arrest and strip search the Fullers, and that, in any event, the officers were entitled to qualified immunity. The district court also denied the Fullers' motion for reconsideration.

The Fullers appeal both the grant of summary judgment and the denial of their motion for reconsideration. We affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

BACKGROUND

On February 21, 1987, Annise Fuller, her daughter Roshaun, and a companion named Helen Allen entered M.G. Jewelry Store to return an item for repair. According to Appellee Pravis Kashanian, the jewelry merchant, Annise asked to see a ring ("ring No. 1") from the display case, which she examined and passed to Roshaun and Allen. Allen then asked to see another ring (ring No. 2"), which she admired and passed to Annise. Kashanian reported that while Annise placed ring No. 2 on her finger, she held ring No. 1 in her hand. Allen eventually decided to put down a $20 deposit on ring No. 2 for lay-away.

The three women then left the store and continued shopping. According to the Fullers, they later returned to the area near the jewelry store to eat. Meanwhile, Kashanian noticed ring No. 1 was missing and determined to his satisfaction that no one else in the store had it. Believing the Fullers had stolen the ring, Kashanian contends he approached the women, who were then across the street from M.G. Jewelry, and asked Annise to return to the store. According to Kashanian, Annise became nervous and attempted to walk away, but he grabbed her wrist. A struggle ensued between Kashanian, Annise, and Roshaun. Annise maintains that Kashanian pushed her into a nearby restaurant (Kashanian reported that Annise ran into the restaurant herself), demanded that she open her purse, then grabbed her purse and ran out. Annise says she then went to the bathroom to wipe her face, which had been injured, while Roshaun ran after Kashanian.

A witness who was in the bathroom when Annise entered told police that Annise ran to the front of the line and asked everyone to leave because she had to throw up. The witness reported Annise appeared to be choking and gagging to make herself throw up. Although only one bathroom stall was operational and approximately ten women were in line, they refused to relinquish the stall to Annise. Annise left the bathroom momentarily, then returned and repeated her request. Her plea was ignored once again, but the witness reported that she seemed to get better and left.

Los Angeles Police Officers Liggett, Parga, and Barham arrived at the scene and interviewed Kashanian, who reported that After their arrest, Annise and Roshaun were transported to the Los Angeles Police Department ("LAPD") central station and subjected to a strip and visual body cavity search. Officer Barham took Annise into the bathroom, made her undress, searched her clothing, and then visually inspected Annise's vagina and rectum. Barham conducted a similar search of Roshaun. 1 Barham also searched the toilet after Roshaun had used it. Annise was then transported to the hospital for an x-ray. None of the searches revealed any drugs, weapons, or stolen items.

                the Fullers had stolen a ring valued at $800.   The officers also spoke with a store employee named Ms. Barberena, with the unnamed rest room witness, with Allen, and with the Fullers, who denied they took anything.   Officer Judy Barham conducted a pat down search of the three women.   She also searched their purses, and conducted a thorough search of the restaurant, including the trash cans, bathroom stalls, commodes, sinks and sink drains.   Although no ring was ever found, Annise and Roshaun were arrested and booked for grand theft
                

At the time the searches were conducted, the LAPD followed a policy that required strip and body cavity searches of all felony arrestees, regardless of the crime with which they were charged. 2

The Fullers were eventually transported to the Los Angeles County Sybil Brand Institute women's jail, where they were booked and subjected to a second strip search by Los Angeles County Sheriff's Department personnel. The Fullers remained incarcerated for twelve hours before they were released on bail. No charges were ever filed against them.

The Fullers brought this action under 42 U.S.C. § 1983 against the County of Los Angeles, the City of Los Angeles, and the three police officers based on their arrest and subsequent strip searches. They alleged, among other things, that the arrest and the searches conducted by LAPD officers and Sheriff's Department personnel violated their rights under the Fourth and Fourteenth Amendments. Before trial, the Fullers filed motions for summary judgment against the County, City, and police officers on the issue of liability. All of the defendants filed counter motions for summary judgment.

On March 8, 1989, the district court granted the summary judgment counter motion brought by both the City and the police officers (hereafter, "Appellees") and dismissed the action against those defendants on the merits. 3 The court concluded that the police officers "had reasonable cause to arrest plaintiffs for grand theft of the missing ring." The court also determined that the officers had "reasonable cause or suspicion to justify a full body cavity search incident to arrest and booking." The court found that even if no probable cause existed for the search, the officers were entitled to qualified immunity because it was not clearly established at the time of arrest that such a search would be unconstitutional.

Finally, the court concluded that under Monell v. Department of Social Services, 436 U.S. 658, 691, 98 S.Ct. 2018, 2036, 56 L.Ed.2d 611 (1978), the City of Los Angeles could not be held liable because the officers had not violated any of the Fullers' constitutional rights. The court determined that the City's policy regarding strip searches The Fullers then filed a motion for reconsideration. On June 8, 1989, the district court denied the motion, dismissed private party defendants M.G. Jewelry and Kashanian, and ordered certification pursuant to Fed.R.Civ.P. 54(b) to establish an appealable final judgment. On June 15, 1989, the Fullers appealed the granting of summary judgment in favor of the City and police officers and the denial of their motion for reconsideration.

of felony arrestees in other circumstances was irrelevant, because "the search here was not unconstitutional."

After the Fullers filed their notice of appeal, Appellees brought a motion to dismiss based on a variety of jurisdictional grounds. Appellees asserted that the district court's Rule 54(b) certification was invalid because the court failed to make any specific findings as to why there was "no just reason for delay." Appellees also argued that the Fullers' appeal was premature because the district court never entered judgment on its order on a separate document as required by Fed.R.Civ.P. 58. Finally, Appellees maintained that even if the parties could be deemed to have waived the separate document requirement, the Fullers' appeal of the summary judgment order was untimely under Federal Rules of Appellate Procedure 4(a). A motions panel of this court denied Appellees' motion and granted them leave to file a late appellees' brief.

STANDARD OF REVIEW

A district court's denial of a motion for reconsideration under Fed.R.Civ.P. 59(e) is construed as a denial of relief under Fed.R.Civ.P. 60(b). As such, it will not be reversed absent an abuse of discretion. Fiester v. Turner, 783 F.2d 1474, 1475-76 (9th Cir.1986).

We review the district court's grant of summary judgment in favor of the City and officers de novo. Kruso v. International Telephone & Telegraph Corp., 872 F.2d 1416, 1421 (9th Cir.1989). We must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact, and whether the district court correctly applied the relevant substantive law. Tzung v. State Farm Fire and Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir.1989); Judie v. Hamilton, 872 F.2d 919, 920 (9th Cir.1989).

DISCUSSION
I. Jurisdiction

While we give deference to motions panel decisions made in the course of the same appeal, we have an independent duty to decide whether we have jurisdiction. Schlegel v. Bebout, 841 F.2d 937, 941 (9th Cir.1988). In this case, we agree with the motions panel ruling.

The district court's Rule 54(b) certification order does not amount to a jurisdictional defect simply because the court did not include specific findings regarding the appropriateness of the certification. See Rutman Wine Co....

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