                                                                           FILED
                           NOT FOR PUBLICATION
                                                                            FEB 17 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


BRETT JOHNSON,                                   No. 13-17617

              Plaintiff - Appellant,             D.C. No. 5:12-cv-03691-LHK

 v.
                                                 MEMORANDUM*
SAN BENITO COUNTY; et al.,

              Defendants - Appellees.


                    Appeal from the United States District Court
                      for the Northern District of California
                      Lucy H. Koh, District Judge, Presiding

                           Submitted February 10, 2016**
                             San Francisco, California

Before: SILVERMAN, FISHER, and TALLMAN, Circuit Judges.

      Brett Johnson appeals the district court’s grant of summary judgment in

favor of San Benito County and two San Benito County Sheriff’s Department

Officers, Undersheriff Patrick Turturici and Sergeant Tony Lamonica (collectively,


        *
             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).
                                          -2-
“Officer Defendants”), on all of Johnson’s causes of action brought pursuant to 42

U.S.C. § 1983. We have jurisdiction over the appeal under 28 U.S.C. § 1291.

Reviewing the district court’s grant of summary judgment and its qualified

immunity determinations de novo, Furnace v. Sullivan, 705 F.3d 1021, 1026 (9th

Cir. 2013), we affirm.

      The district court granted summary judgment for the Officer Defendants

under the first of the two prongs of the qualified immunity analysis, concluding

that the facts, taken in the light most favorable to Johnson, do not show that the

Officer Defendants’ conduct violated any of Johnson’s constitutional rights. See

Sandoval v. Las Vegas Metro. Police Dep’t, 756 F.3d 1154, 1160 (9th Cir. 2014)

(quoting Saucier v. Katz, 533 U.S. 194, 201 (2001)).

      Johnson argues that the district court erred in concluding that probable cause

existed to support Lamonica’s determination that the child abuse allegations were

“substantiated.” He contends the district court failed to draw all reasonable

inferences in his favor when it concluded that a reasonable officer could have

determined there was a substantiated claim of child abuse based on the undisputed

facts. In particular, he argues that his privilege to discipline his son precludes

summary judgement because it raises a dispute of material fact.
                                          -3-
      Johnson’s argument incorrectly conflates the summary judgment and

qualified immunity standards. The question before the district court was not

whether there was a dispute of fact as to whether the privilege may have applied,

but merely whether a reasonable officer could have found probable cause to

believe Johnson had committed child abuse. Even assuming without deciding that

Johnson is correct in arguing the absence of disciplinary intent is an element of

Cal. Penal Code § 273d, the district court did not err in concluding Lamonica had

probable cause to find the allegations substantiated. Here, the undisputed facts

show that Johnson and his son engaged in a physical altercation and that his son

was injured as a result. These facts are sufficient to support a finding of probable

cause, which requires “[n]either certainty, nor proof beyond a reasonable doubt,”

but only “reasonably trustworthy information sufficient to warrant a prudent

person in believing that the accused had committed or was committing an offense.”

United States v. Harvey, 3 F.3d 1294, 1296 (9th Cir. 1993) (quoting United States

v. Del Vizo, 918 F.2d 821, 825 (9th Cir. 1990)).

      The district attorney’s independent decision to prosecute poses an additional

impediment to Johnson’s claims. Johnson points to no evidence that calls into

question the veracity of the district attorney’s testimony that she received and

reviewed both the initial incident report prepared by the responding deputy, Marc
                                           -4-
Williams, and Lamonica’s supplemental incident report. Williams’s report

documents the statement he obtained from Johnson, including Johnson’s

description of his son as defiant and Johnson’s explanation of his conduct as an

effort to discipline his son. Johnson identifies no factual dispute that undermines

the district attorney’s testimony that her charging decision was made without

reference to any of the allegedly tampered evidence. The district court therefore

did not err in concluding that Johnson identified no conduct by the Officer

Defendants that deprived Johnson of his Fourth Amendment rights. Cf. Beck v.

City of Upland, 527 F.3d 853, 864 (9th Cir. 2008) (explaining that “the plaintiff

must prove the absence of probable cause to rebut the presumption of independent

prosecutorial judgment, when a prosecutor’s actions are interposed between the

actions of investigating officials and the arrest”).

      Johnson also challenges several aspects of the district court’s grant of

summary judgment in favor of the Officer Defendants on his Fourteenth

Amendment claims that allege substantive due process violations, including his

claims that the Officer Defendants violated his rights by causing his inclusion on

California’s Child Abuse Central Index (CACI) or his employer’s Brady list. To

establish a substantive due process claim, a plaintiff must show both a government

deprivation of life, liberty, or property, and conscience-shocking conduct by the
                                          -5-
government. Brittain v. Hansen, 451 F.3d 982, 991 (9th Cir. 2006). The

undisputed facts show nothing more than that, in response to a call from Johnson’s

ex-wife, Turturici asked Lamonica to review the case. Lamonica reviewed

Williams’s initial written reports, conducted additional interviews to confirm the

accuracy of the witnesses’ reporting, and reported his own findings. As discussed

above, Lamonica’s subsequent decision to indicate that the abuse allegations were

“substantiated” was supported by probable cause. In short, because the Officer

Defendants acted reasonably, the district court did not err in concluding that

Johnson’s contentions are insufficient to create a genuine issue of material fact as

to whether there was a substantive due process violation. See id. at 998 (“[A]s

long as [an officer]’s actions were objectively reasonable, his subjective intent is

irrelevant.”).

       Johnson also challenges the district court’s grant of summary judgment in

favor of the Officer Defendants on his Fourteenth Amendment tampered-evidence

claim, arguing that the district court failed to recognize that he came forward with

evidence, albeit disputed, that Lamonica altered the audio tape of Williams’s initial

interview of Johnson, and did so with a purpose to harm. Even assuming the

alleged evidence tampering occurred, there is no evidence suggesting that the

district attorney listened to the audio recording at any point before filing the
                                          -6-
criminal complaint charging Johnson. The district court therefore correctly

concluded that the Officer Defendants are entitled to summary judgment because

the record is devoid of evidence of a causal nexus between the alleged tampering

and any tangible harms purportedly suffered by Johnson. Cf. McSherry v. City of

Long Beach, 584 F.3d 1129, 1136–47 (9th Cir. 2009).

      Johnson further contends that the district court erred in granting summary

judgment for the Officer Defendants on his First Amendment claim that their

conduct inhibited his future ability to petition the family court for modifications to

the family’s custody arrangements. However, there is no evidence that the Officer

Defendants undertook the challenged conduct for the purpose of chilling Johnson’s

First Amendment rights. Ford v. City of Yakima, 706 F.3d 1188, 1193 (9th Cir.

2013). Nor is there any evidence that Johnson’s access to the court was impaired

in any way.

      Finally, the district court properly concluded that no Monell liability can lie

absent a finding of a constitutional violation by the Officer Defendants. See

Quintanilla v. City of Downey, 84 F.3d 353, 355 (9th Cir. 1996).

      AFFIRMED.
