                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 22 2009

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



PAULETTE WESTON, a single person,                No. 09-35243

             Plaintiff - Appellant,              D.C. No. 2:08-cv-00469-RSM

  v.
                                                 MEMORANDUM *
BERNARD JOSEPH HARRIGAN, a
single person; CARLOS D. BENAVIDEZ;
KINDA R. BENAVIDEZ, husband and
wife and their marital community;
WASHINGTON STATE LIQUOR
CONTROL BOARD, a Division of the
State of Washington,

             Defendants - Appellees.



                   Appeal from the United States District Court
                      for the Western District of Washington
                   Ricardo S. Martinez, District Judge, Presiding

                          Submitted December 11, 2009 **
                               Seattle, Washington

Before: BEEZER, GOULD and TALLMAN, Circuit Judges


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
      Plaintiff-Appellant Paulette Weston (“Weston”) appeals the district court’s

grant of summary judgment to Defendants-Appellees Bernard Harrigan and Carlos

Benevidez (collectively “Officers”) and the Washington State Liquor Control

Board. The parties are familiar with the facts and procedural history of this case so

they are not repeated here.

      We have jurisdiction under 28 U.S.C. § 1291 and affirm.

      The district court did not abuse its discretion in excluding Paul Weston’s

testimony because it would not have helped determine a fact in issue. See Head v.

Glacier Northwest Inc., 413 F.3d 1053, 1062–63 (9th Cir. 2005) (upholding district

court’s evidentiary determination because the testimony at issue would not have

assisted in determining a fact in issue). The use of an altered license was not a

“fact in issue” because the record is devoid of any evidence that the underage

operative produced an altered license when asked for her identification.

      The Liquor Control Board Officers are entitled to qualified immunity.

Under Saucier v. Katz, 533 U.S. 194, 200–02 (2001) and Pearson v. Callahan, 129

S. Ct. 808 (2009), we exercise our discretion to first determine whether a public

official violated the complaining party’s constitutional rights. We do not reach the

second step because we find that there are no genuine issues of material fact and

the Officers’ conduct did not violate Weston’s constitutional right to due process.


                                          2
      The Officers did not violate Weston’s procedural due process rights. There

is no evidence in the record that the Officers affirmatively participated in Weston’s

termination or knew or reasonably should have known that their actions would

cause Weston’s employer to terminate her before providing an opportunity to be

heard. See Johnson v. Duffy, 588 F.2d 740, 743–44 (9th Cir. 1978) (finding that a

public official can deprive an individual of a protected property interest by either

affirmatively participating in the deprivation or “setting in motion a series of acts

by others which the actor knows or reasonably should know would cause others to

inflict the constitutional injury”). The facts of this case do not establish the type of

public official involvement presented in Merritt v. Mackey, 827 F.2d 1368, 1372

(9th Cir. 1987) (finding a violation of procedural due process when the government

had “coercive dealings” with the plaintiff’s employer).

      The Officers also did not violate Weston’s constitutional rights to

substantive due process. Official conduct violates a party’s substantive due

process rights when the conduct “shocks the conscience.” County of Sacramento v.

Lewis, 523 U.S. 833, 846–47 (1998). There are two standards of culpability for

determining if conduct shocks the conscience: deliberate indifference and purpose

to harm. Porter v. Osborn, 546 F.3d 1131, 1137 (9th Cir. 2008). Weston argues

that the lower standard of culpability, deliberate indifference, applies in this case.


                                            3
We need not decide the appropriate standard, however, because we hold that even

under the lower standard, summary judgment is appropriate.

      We reject Weston’s attempt to create a genuine issue of material fact by

alleging that there were two liquor purchases. A court does not have to accept as

true allegations that are contradicted by the record and which no reasonable jury

would believe. Scott v. Harris, 550 U.S. 372, 380 (2007). Weston’s “two-buy

theory” is inconsistent with the evidence in the record—Weston could not produce

an electronic record of the alleged second buy although it is undisputed that such a

record is made for every transaction. The district court properly rejected the two-

buy theory. We next examine the Officers’ conduct during the liquor compliance

check to determine if they acted with deliberate indifference to Weston’s

constitutional rights. See Redman v. County of San Diego, 942 F.2d 1435, 1446

(9th Cir. 1991).

      There is no evidence to support Weston’s allegations that Harrigan or

Benavidez purposely selected Weston’s store because they knew she would be

terminated if she sold liquor to a minor. Weston admitted that Harrigan reassured

her that she would not be fired and Harrigan stated that the store was selected for

the liquor compliance check based on the length of time since the previous check

or a failed previous check. There is no evidence to support the argument that


                                          4
Harrigan’s or Benavidez’s behavior while Weston was conducting the sale to the

underage operative was deliberately indifferent to Weston’s constitutional rights.

Even if the Officers were acting in a distracting manner, it was reasonable for them

to do so. The possibility that a person may engage in distracting behavior while a

minor is purchasing liquor does not stretch the imagination. The Officers were not

acting with deliberate indifference to Weston’s constitutional rights; they were

simulating a possible real-life situation to evade the liquor laws.

      The uncontroverted evidence establishes as a matter of law that the Officers’

conduct does not constitute deliberate indifference to Weston’s constitutional

rights; nor does it evidence a purpose to harm. The Officers did not engage in

conduct that “shocks the conscience” and Weston was not deprived of her

substantive due process rights. Qualified immunity was properly invoked.

      AFFIRMED.




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