                                                                           FILED
                           NOT FOR PUBLICATION                              JUL 16 2014

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


JOHN HERNANDEZ and LESLIE                        No. 12-16622
SCALES,
                                                 D.C. No. 3:11-cv-02397-SI
              Plaintiffs - Appellants,

  v.                                             MEMORANDUM*

KEVIN BROIN, individually and in his
official capacity as Sheriff / Coroner of the
County of Mendocino and COUNTY OF
MENDOCINO,

              Defendants - Appellees.


                   Appeal from the United States District Court
                      for the Northern District of California
                   Susan Illston, Senior District Judge, Presiding

                              Submitted July 9, 2014**
                              San Francisco, California

Before: FERNANDEZ, N.R. SMITH, and CHRISTEN, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Plaintiffs allege that Kevin Broin, the Mendocino County sheriff/coroner,

denied them access to the courts by covering up the cause of their son’s death. The

district court granted Broin’s motion for summary judgment, concluding plaintiffs

did not show a genuine issue of fact as to whether Broin hid key facts, engaged in a

cover-up, or otherwise denied plaintiffs access to the courts. We have jurisdiction

under 28 U.S.C. § 1291 and affirm.1

      A district court’s order granting summary judgment is reviewed de novo to

“determine whether, viewing the evidence in the light most favorable to the

nonmoving party, there are any genuine issues of material fact and whether the

district court correctly applied the relevant substantive law.” Cameron v. Craig,

713 F.3d 1012, 1018 (9th Cir. 2013) (quoting Lopez v. Smith, 203 F.3d 1122, 1131

(9th Cir. 2000) (en banc)).

      “The Supreme Court held long ago that the right of access to the courts is a

fundamental right protected by the Constitution.” Delew v. Wagner, 143 F.3d

1219, 1222 (9th Cir. 1998) (citing Chambers v. Baltimore & Ohio R.R. Co., 207

U.S. 142, 148 (1907)). To prevail on their claim, plaintiffs had to “demonstrate

that the [alleged] cover-up violated their right of access to the courts by rendering



      1
             The parties are familiar with the facts of the case, so we do not recite
them here.

                                           2
‘any available state court remedy ineffective.’” Id. at 1223 (quoting Swekel v. City

of River Rouge, 119 F.3d 1259, 1264 (6th Cir. 1997)).

      Plaintiffs did not raise a genuine issue of fact about whether Broin’s actions

or inaction denied them access to the courts. Plaintiffs suspected their son had

been poisoned shortly after he died. They collected water and vomit samples and

knew about Remco’s operations in the local area within a month after the death.

Even if Broin failed to obtain and test samples for toxins, his handling of the

investigation did not prevent plaintiffs from obtaining and testing their own

samples.

      Plaintiffs’ allegation that Broin destroyed evidence in order to further a

cover-up is unsupported. The record established the tissue specimens were kept

for a year and destroyed by order of a deputy coroner during a routine purge. The

water samples appear to have been destroyed in a similar manner. Even if Broin

should have prevented their destruction, plaintiffs had their own water samples and

had an opportunity to do their own testing. Plaintiffs were not prevented from

filing their tort claim while the sheriff’s department conducted its investigation.

They received the preliminary autopsy report about a week after their son’s death.

Plaintiffs did not raise a genuine issue of fact about whether they relied on the

sheriff’s investigation, as evidenced by their refusal to entrust Broin with a vomit


                                           3
sample. We agree with the district court that the evidence showed plaintiffs

formed a theory regarding the cause of their son’s death early on. Plaintiffs did not

raise a genuine issue of fact about whether Broin prevented them from filing a

timely tort claim.

      AFFIRMED.




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