                                                                             FILED
                            NOT FOR PUBLICATION
                                                                             SEP 06 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


DONALD G. ROBERTSON and                          No.    15-35561
COLLEEN F. ROBERTSON,
                                                 D.C. No. 2:14-cv-00117-RMP
              Plaintiffs-Appellants,

 v.                                              MEMORANDUM*

FERRY COUNTY, a municipal
corporation; et al.,

              Defendants-Appellees.


                   Appeal from the United States District Court
                     for the Eastern District of Washington
                Rosanna Malouf Peterson, District Judge, Presiding

                            Submitted August 28, 2017**
                               Seattle, Washington

Before: HAWKINS and McKEOWN, Circuit Judges, and ROTHSTEIN,***
District Judge.



      *
        This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
      **
         The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
      ***
         The Honorable Barbara Jacobs Rothstein, United States District Judge for
the Western District of Washington, sitting by designation.
      Donald and Colleen Robertson (“the Robertsons”) appeal the adverse summary

judgment grant in their 42 U.S.C. § 1983 and state law action. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm.

1.    The Robertsons have not made a “substantial showing” that Deputy Talon

Venturo “deliberately or recklessly made false statements or omissions” in the warrant

application to search their residence. Ewing v. City of Stockton, 588 F.3d 1218, 1223

(9th Cir. 2009) (citation omitted). Accordingly, there was no error in granting

summary judgment to Deputy Venturo.

      Additionally, to the extent the Robertsons argue the search warrant did not

satisfy the Fourth Amendment’s particularity requirement, Deputy Venturo is entitled

to qualified immunity. See KRL v. Estate of Moore, 512 F.3d 1184, 1189 (9th Cir.

2008).

2.    The Robertsons’ request, made for the first time on appeal, to amend their

pleadings to add Deputy John Lofts as a defendant in the case has been waived

because the Robertsons did not seek leave to amend before the district court. See

Alaska v. United States, 201 F.3d 1154, 1163-64 (9th Cir. 2000). Moreover, the

Robertsons have not shown “good cause” under Federal Rule of Civil Procedure 16

for their failure to comply with the district court’s scheduling order deadlines.




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Accordingly, there was no error in granting summary judgment on the Robertsons’

claim that Deputy Lofts assaulted Colleen Robertson.

3.    The Robertsons have not adduced sufficient evidence creating triable issues of

fact as to Sheriff Pete Warner’s supervisorial liability or Ferry County and the Ferry

County Sheriff’s Department’s municipal liability. See Blankenhorn v. City of

Orange, 485 F.3d 463, 485 (9th Cir. 2007) (discussing supervisorial liability); Monell

v. Dep’t of Soc. Servs. of N.Y., 436 U.S. 658 (1978) (discussing municipal liability).

Accordingly, there was no error in granting summary judgment to these defendants.

4.    The Robertsons’ claim that searching their residence was improper because

Washington state authorized their use of medicinal marijuana fails. At the time

sheriff’s deputies searched their residence, Washington law only provided an

affirmative defense to charges of violations of state law relating to marijuana. State

v. Reis, 351 P.3d 127, 131 (Wash. 2015). Such an affirmative defense “does not

undermine probable cause for a search warrant.” Id. at 136. Accordingly, there was

no error in granting summary judgment on this claim.

      AFFIRMED.




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