                                                                       FILED
                    UNITED STATES COURT OF APPEALS                      DEC 01 2009

                                                                    MOLLY C. DWYER, CLERK
                            FOR THE NINTH CIRCUIT                    U.S . CO UR T OF AP PE A LS




JUAN BARELA,                                   No. 07-35585

             Plaintiff - Appellant,            D.C. No. CV-06-05431-JKA
                                               Western District of Washington,
  v.                                           Tacoma

CITY OF WOODLAND, (Mayor) for
Municipal Liability Collectively;              ORDER
WOODLAND POLICE CHIEF, In official
Capacity Collectively for Supervisory
Negligence; JEANNE C. CANEPA In
Official and Individual Capacity for False
Arrest; SUSAN I. BAUER, Prosecutor, In
Official and Individual Capacity for
Obstruction of Justice; THOMAS A.
LADOUCEUR, In Official and Individual
Capacity for Obstruction of Justice; ANNE
M. CRUSER, In Official and Individual
Capacity Neglect to Duty,,

             Defendants - Appellees.



Before: HAWKINS, McKEOWN and BYBEE, Circuit Judges.




       The Petition for Rehearing is DENIED in accord with the Amended

Memorandum Disposition filed simultaneously with this order. No further

Petitions for Rehearing will be entertained.
                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 01 2009

                                                                       MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S . CO UR T OF AP PE A LS




                            FOR THE NINTH CIRCUIT



JUAN BARELA,                                     No. 07-35585

             Plaintiff - Appellant,              D.C. No. CV-06-05431-JKA

  v.                                             AMENDED
                                                 MEMORANDUM *
CITY OF WOODLAND, (Mayor) for
Municipal Liability Collectively;
WOODLAND POLICE CHIEF, In official
Capacity Collectively for Supervisory
Negligence; JEANNE C. CANEPA In
Official and Individual Capacity for False
Arrest; SUSAN I. BAUER, Prosecutor, In
Official and Individual Capacity for
Obstruction of Justice; THOMAS A.
LADOUCEUR, In Official and Individual
Capacity for Obstruction of Justice; ANNE
M. CRUSER, In Official and Individual
Capacity Neglect to Duty,,

             Defendants - Appellees.



                   Appeal from the United States District Court
                       for the Western District of Washington
                   J. Kelley Arnold, Magistrate Judge, Presiding

                      Argued and Submitted August 31, 2009


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                  Seattle, Washington

Before: HAWKINS, McKEOWN and BYBEE, Circuit Judges.




      Juan Barela appeals from the district court's grant of summary judgment

dismissing his claims against all defendants.1 We affirm with respect to the City of

Woodland, the Woodland Police Chief, Susan Baur,2 Thomas Ladouceur, and

Anne Cruser. We reverse with respect to Officer Jeanne Canepa.

      Barela alleges that his First and Fourth Amendment rights were violated as a

result of the City of Woodland's policy of deliberate indifference toward

constitutional rights--a policy that manifests itself during the training and

supervision of City employees. Although a municipal government is not generally

liable for the constitutional torts of its employees or agents, liability can attach

under 42 U.S.C. y 1983 when a constitutional violation is caused by the execution


      1
        The pleadings are inconsistent as to whether Lynn Barela is also a party to
the appeal. To the extent that she is a party, her claims are dismissed for lacµ of
standing. Nothing in the complaint, or in the record considered on summary
judgment, supports a claim that she suffered a non-derivative, actionable harm.
See Powers v. Ohio, 499 U.S. 400, 410 (1991) ('In the ordinary course, a litigant
must assert his or her own legal rights and interests, and cannot rest a claim to
relief on the legal rights or interests of third parties.').
      2
        We note that although Susan Baur's name is spelled 'Bauer' in most of the
briefs and pleadings, we adopt the spelling of her name used in the briefs filed
specifically on her behalf.

                                            2
of a government custom or policy. Monell v. Dep't of Soc. Servs., 436 U.S. 658,

694 (1978). In this case, however, Barela has not offered sufficient evidence--or

indeed any evidence at all--that there was such a policy in place. Nor does Barela

have sufficient evidence for his claim that the City of Woodland chief of police

negligently failed to adequately train, instruct, or supervise his officers. The

district court's dismissal of Barela's claims against both the City and its police

chief was proper.

      Barela does not dispute his lacµ of evidence with respect to these claims. He

argues instead that the district court improperly dismissed his claims against the

municipal defendants without first ruling on his motion to compel discovery--a

motion that, if granted, might have yielded the evidence required. In fact, the

district court considered Barelaùs motion to compel discovery along with the

supporting materials, but denied the motion as moot following the summary

judgment. Because the district court did not directly address the merits of Barelaùs

motion, we review de novo. Clarµ v. Capital Credit & Collection Services, 460

F.3d 1162, 1178 (9th Cir. 2006). Even if we assume that Barela intended the

motion to compel discovery as a Rule 56(f) motion, the bare allegations with

respect to both the Monell claim and the negligence claim against the chief of

police were cursory at best and unsupported by any evidence. They are not


                                           3
sufficient to warrant a remand for further discovery. To satisfy the requirements of

Rule 56(f), Barelaùs motion to compel--which was filed 10 days after the

scheduled completion of discovery--must maµe clear what information was sought

and how it would preclude summary judgment. Garrett v. County of San

Francisco, 818 F.2d 1515, 1518-19 (9th Cir. 1987). Barela states merely that the

information is 'essential to establish conspiracy, pattern conduct damages, and

collusion.' He did not 'show how additional discovery would preclude summary

judgment [against the municipal defendants] and why [he could not] immediately

provide 'specific facts' demonstrating a genuine issue of material fact.' Macµey v.

Pioneer Natùl Banµ, 867 F.2d 520, 524 (9th Cir. 1989). The district courtùs implicit

denial of the motion on the merits is affirmed.

      Barela has also failed to state valid claims against prosecutors Baur and

Ladouceur, or against defense attorney Cruser. Both prosecutors were acting

within the scope of their duties and are therefore 'not amenable to suit under

y 1983.' Kalina v. Fletcher, 522 U.S. 118, 124 (1997). Similarly, Cruser was

acting in her capacity as public defender and was not a state actor for purposes of

the statute. See Miranda v. Clarµ County, Nevada, 319 F.3d 465, 466 (9th Cir.

2003) (en banc).




                                          4
      We reverse the district court's dismissal of Barela's y 1983 claim against

Officer Canepa. Under the Washington Privacy Act, it is not illegal to tape record

a police officer when the officer does not have an expectation of privacy. See State

v. Flora, 845 P.2d 1355, 1357-58 (Wash. Ct. App. 1992). See also Johnson v.

Hawe, 388 F.3d 676, 683-85 (9th Cir. 2004). Even though the privacy act is not a

basis for an arrest in this case, which Canepa µnew or should have µnown, there is

a dispute as to whether Barela's legal use of the tape recorder obstructed Canepaùs

investigation under Woodland Municipal Code 9.08.010 (obstructing a law

enforcement officer). There is also a disputed issue of fact as to whether Barela

physically blocµed the entrance to the examination room, thus impeding Canepa

from interviewing Barelaùs granddaughters and obstructing a law enforcement

officer. For this reason, we reverse the district court's grant of qualified immunity

to Canepa, and remand for further proceedings.3

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED. Each
party shall bear its own costs on appeal.




      3
       Barela's motion to supplement the record with a transcript of the tape
recording is denied. The tape recording itself is sufficiently clear; Barela's
proposed supplement would add nothing material to the record.

                                          5
