                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                           FILED
                             FOR THE NINTH CIRCUIT                             JUN 17 2013

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

SEAN RODNEY ORTH,                                No. 11-16182

               Plaintiff - Appellant,            D.C. No. 3:06-cv-00481-LRH-
                                                 RAM
  v.

DENNIS BALAAM; JOSEPH LEVER;                     MEMORANDUM*
REED THOMAS; DENISE GENIO;
MARY BOXX; WASHOE COUNTY
SHERIFF’S DEPARTMENT; KENNETH
HAMMON; DAVE KELLER; TAMMY
M. RIGGS; DAVID CLIFTON,

               Defendants - Appellees.


                    Appeal from the United States District Court
                             for the District of Nevada
                     Larry R. Hicks, District Judge, Presiding

                             Submitted March 19, 2013**

Before:        HUG, FARRIS, and LEAVY, 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).
      Plaintiff Sean Orth appeals pro se the district court’s unfavorable decision in

his § 1983 action arising out of his arrest and pretrial detention on a retake warrant

issued by the Second Judicial District Court (“SJDC”) of Washoe County, Nevada.

We have jurisdiction under 28 U.S.C. § 1291, and we affirm.1

      The district court’s dismissal on statute of limitations or absolute immunity

grounds is reviewed de novo. Torres v. City of Santa Ana, 108 F.3d 224, 226 (9th

Cir. 1997); Buckwalter v. Nevada Bd. of Medical Examiners 678 F.3d 737, 739

(9th Cir. 2012). Allegations in the complaint are taken as true and all reasonable

inferences are drawn in the plaintiff’s favor. See Buckwalter, 678 F.3d at 739.

      “We review de novo a district court’s ruling on cross-motions for summary

judgment, including rulings based on qualified immunity.” Ford v. City of Yakima,

706 F.3d 1188, 1192 (9th Cir. 2013). Summary judgment is appropriate if, when

the evidence is viewed in the light most favorable to the non-moving party, there

are no genuine issues of material fact and the moving party is entitled to judgment

as a matter of law. McSherry v. City of Long Beach, 584 F.3d 1129, 1135 (9th Cir.

2009). The denial of leave to amend is reviewed for an abuse of discretion.

Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th Cir. 1992).



      1
         Because the parties are familiar with the facts underlying this appeal, we
do not recount the facts here.

                                          2
      The district court properly dismissed Counts 1, 2, 4, and 5 as time-barred,

because Orth failed to bring his false arrest claims within two years of their accrual

on July 1, 2005. See Wallace v. Kato, 549 U.S. 384, 389-90 (2007) (holding that a

claim for false arrest accrues once an individual is held pursuant to legal process).

Orth’s malicious prosecution claims were properly dismissed because they were

based on conduct arising before legal process had issued. See id. at 390.

      Count 6 was properly dismissed because prosecutors are entitled to absolute

immunity for their actions in procuring a warrant, so long as they do not act as

attesting witnesses. See Kalina v. Fletcher, 522 U.S. 118, 129 (1997); Burns v.

Reed, 500 U.S. 478, 492 (1991). The fact that the SJDC did not have jurisdiction

to issue the retake warrant does not strip the prosecutors of their absolute

immunity. See Imbler v. Pachtman, 424 U.S. 409, 427 (1976).

      The district court properly granted summary judgment to defendants on

Count 3. The registered occupant of the motel room in which Orth was a guest

consented to the search, and the evidence shows the consent was voluntary. See

United States v. Watson, 423 U.S. 411, 424-25 (1976). To the extent that Orth

claims that the occupant was unlawfully seized, he does not have standing to bring

that claim. See Moreland v. Las Vegas Metro. Police Dept., 159 F.3d 365, 369




                                          3
(9th Cir. 1998) (“the general rule is that only the person whose Fourth Amendment

rights were violated can sue to vindicate those rights”).

      Officer Thomas was entitled to summary judgment on Orth’s claims in

Count 7. Orth’s Fourth Amendment claim fails because even if Officer Thomas

had omitted information concerning the retake warrant, probable cause existed for

the warrant, thus giving the SJDC a separate and independent basis for issuing it.

See Smith v. Almada, 640 F.3d 931, 937-38 (9th Cir. 2011). Moreover, because

probable cause existed, Orth’s malicious prosecution claim fails. See Lassiter v.

City of Bremerton, 556 F.3d 1049, 1054-55 (9th Cir. 2009) (“probable cause is an

absolute defense to malicious prosecution.”). Lastly, Orth’s Fourteenth

Amendment claim fails because there is no evidence that Officer Thomas had any

involvement in the delay in bringing Orth before a magistrate after his arrest on the

retake warrant. See Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).

      The district court properly granted summary judgment to Sheriff Balaam on

Count 8, alleging violations of the Fourth and Fourteenth Amendments. Regarding

Orth’s due process claim, there is no evidence that Sheriff Balaam participated in

the delay in Orth’s appearance before the magistrate; nor is there evidence that he

promulgated a policy causing that delay. See id.; Hansen v. Black, 885 F.2d 642,

646 (9th Cir. 1989). As to Orth’s Fourth Amendment claim, Sheriff Balaam is


                                          4
entitled to qualified immunity because it was reasonable for him to have held Orth

based on a warrant that was valid on its face. See Barlow v. Ground, 943 F.2d

1132, 1139-40 (9th Cir. 1991).

      The defendants were entitled to summary judgment on Count 9, alleging that

Reno Police Officers and members of the Washoe County Sheriff’s Department

conspired to deprive Orth of his constitutional rights, because there is no evidence

that the defendants had an agreement to deprive Orth of his rights. See Franklin v.

Fox, 312 F.3d 423, 441 (9th Cir. 2002) (to prevail on a conspiracy claim, a plaintiff

must show an agreement to violate constitutional rights).

      The district court properly granted summary judgment to defendants on

Count 10, alleging that the conditions of Orth’s pretrial detention constituted

punishment without due process. Orth’s placement in Behavioral Review, a form

of administrative segregation, was reasonably related to the detention facility’s

legitimate objective of maintaining safety and security; it therefore did not amount

to punishment. See Bell v. Wolfish, 441 U.S. 520, 540 (1979) (“[r]estraints that are

reasonably related to the institution’s interest in maintaining jail security do not,

without more, constitute unconstitutional punishment, even if they are

discomforting”). To the extent that Orth argues that he was entitled to a hearing

before his placement in Behavioral Review, his claim fails because he was not


                                           5
deprived of a liberty interest. See Serrano v. Francis, 345 F.3d 1071, 1078 (9th

Cir. 2003).

      Finally, the district court did not abuse its discretion in denying Orth leave to

file a third amended complaint. Once the court has set a scheduling order under

Federal Rule of Civil Procedure 16, that order limits the time in which a party may

amend its pleading and may be modified only for good cause. Fed. R. Civ. Pro.

16(b). Orth failed to show good cause for his belated motion to amend his

complaint. See Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 609 (9th

Cir. 1992).

      Orth’s remaining contentions lack merit.

      AFFIRMED.




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