                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS
                                                                              FILED
                             FOR THE NINTH CIRCUIT
                                                                               MAR 17 2017
                                                                           MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS
DEEPAK VOHRA,                                      No.   13-55837

              Plaintiff-Appellant,                 D.C. No.
                                                   8:11-cv-01267-DSF-RZ
 v.

CITY OF PLACENTIA; et al.,                         MEMORANDUM*

              Defendants-Appellees.


                    Appeal from the United States District Court
                       for the Central District of California
                     Dale S. Fischer, District Judge, Presiding

                        Argued and Submitted March 8, 2017
                               Pasadena, California

Before: REINHARDT, TASHIMA, and NGUYEN, Circuit Judges.

      1. In this Section 1983 action, Deepak Vohra (“Vohra”) is barred by Heck v.

Humphrey, 512 U.S. 477, 486–87 (1994), from challenging Lieutenant Pascarella’s

(“Pascarella”) initial traffic stop for driving without a front license plate. Vohra

was convicted of an infraction of Cal. Vehicle Code § 5200(a) (display of license



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
plates) after he entered a guilty plea. That conviction bars him from challenging the

traffic stop for lack of reasonable suspicion.

      2. Summary judgment was improper on Vohra’s Section 1983 claim for

false arrest. There is a genuine factual dispute as to whether Pascarella lacked

probable cause to arrest Vohra for evading a police officer. Vohra was arrested and

detained for evading an officer in violation of California Vehicle Code § 2800.1(a).

Misdemeanor evasion requires intentional flight from a police officer in the

presence of “four distinct elements”: “(1) a red light, (2) a siren, (3) a distinctively

marked vehicle, and (4) a peace officer in a distinctive uniform.” People v.

Hudson, 136 P.3d 168, 171 (Cal. 2006), as modified (Aug. 23, 2006) (citation

omitted).

      There is a genuine dispute of material fact as to when Pascarella first

activated his siren. Pascarella claims he activated it near the intersection of

Orangethorpe and Miller. According to Vohra, there were no flashing lights or

siren until he was approaching the intersection of Orangethorpe and Rose. The

district court erred in disregarding Vohra’s declaration as a sham: nothing in

Vohra’s deposition “flatly contradicts,” or is unambiguously inconsistent with, his

declaration. See Van Asdale v. Int’l Game Tech., 577 F.3d 989, 999 (9th Cir. 2009).




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In light of the genuine dispute about when Pascarella first activated his siren,

summary judgment was improper.

      3. Pascarella is not entitled to qualified immunity on Vohra’s false arrest

claim. “Qualified immunity shields government officials from civil damages

liability unless the official violated a statutory or constitutional right that was

clearly established at the time of the challenged conduct.” Taylor v. Barkes, 135 S.

Ct. 2042, 2044 (2015).

      First, viewing the facts in the light most favorable to Vohra, they show that

the officer violated a constitutional right by arresting Vohra without probable cause

to believe he had committed the crime of evading an officer. Second, they show

that Pascarella violated a clearly established right: it was unreasonable for him to

believe he had probable cause to arrest Vohra for evasion. Pascarella offers no

argument that he is entitled to qualified immunity under Vohra’s account of the

facts, which maintains that he pulled over as soon as the light turned green at the

intersection of Orangethorpe and Rose, where Pascarella first activated his siren.

This conduct unquestionably could not be considered by any reasonable or

competent officer to constitute “willfully flee[ing] or otherwise attempt[ing] to

elude a pursuing peace officer’s motor vehicle.” California Vehicle Code §

2800.1(a).


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      4. Pascarella is not entitled to summary judgment on Vohra’s First

Amendment retaliation claim. A First Amendment retaliation claim has two

elements. First, the plaintiff must “demonstrate that the officers’ conduct would

chill a person of ordinary firmness from future First Amendment activity.” Ford v.

City of Yakima, 706 F.3d 1188, 1193 (9th Cir. 2013). Second, he must “prove that

the officers’ desire to chill his speech was a but-for cause of their allegedly

unlawful conduct.” Id.

      As to the first element, a rational jury could conclude that Vohra was

arrested without probable cause, which is sufficient to establish the first element of

retaliation. See Beck v. City of Upland, 527 F.3d 853, 869 (9th Cir. 2008). With

respect to the second element, it is undisputed that Vohra wrote several letters to

Chief Anderson, lodging various complaints. Pascarella maintains that he never

had contact with Vohra before the night of the arrest and that he was unaware at

that time of Vohra’s letters and complaints. Vohra, however, has consistently

maintained that after he was stopped and arrested, he asked Pascarella why he was

arrested, and that Pascarella responded, “So you can write another letter to the

chief of police.” SER 38, 199, 359. In light of the genuine factual dispute about

what was said when Vohra was stopped and whether probable cause existed to




                                           4
arrest him, we reverse the grant of summary judgment to Pascarella on the

retaliation claim

      4. Pascarella is not entitled to qualified immunity on Vohra’s First

Amendment retaliation claim. “While the issue of causation ultimately should be

determined by a trier of fact, [Vohra] has provided sufficient evidence for a jury to

find that [Pascarella’s] retaliatory motive was a but-for cause” of his arrest without

probable cause, “thus satisfying the causation element of a First Amendment

retaliation claim for the purposes of qualified immunity.” Ford, 706 F.3d at 1194.

The second prong (clearly established law) of the qualified immunity analysis is

also satisfied. In October 2010, the law of this circuit gave Pascarella “fair notice”

that it would be unlawful to arrest Vohra in retaliation for his complaints: “Police

officers have been on notice at least since 1990 that it is unlawful to use their

authority to retaliate against individuals for their protected speech.” Id. at 1195.

      5. Defendants are entitled to summary judgment on Vohra’s equal protection

claim, which amounts to a claim of racially-motivated selective enforcement. To

survive summary judgment on this claim, Vohra must introduce some evidence

“that similarly situated defendants . . . could have been prosecuted, but were not.”

Lacey v. Maricopa Cty., 693 F.3d 896, 920 (9th Cir. 2012) (quoting United States

v. Armstrong, 517 U.S. 456, 469 (1996)). Vohra has failed to provide any evidence


                                           5
that Pascarella or the Department failed to investigate or prosecute similarly

situated individuals. Summary judgment on the equal protection claim is affirmed.

      6. The district court did not err in dismissing Chief Anderson. Under Section

1983, a supervisor may be liable based on either “(1) his or her personal

involvement in the constitutional deprivation or (2) a sufficient causal connection

between the supervisor’s wrongful conduct and the constitutional violation.”

Mackinney v. Nielsen, 69 F.3d 1002, 1008 (9th Cir. 1995). Vohra has failed to

allege any personal involvement by Chief Anderson or that Chief Anderson

himself, rather than the Department, acquiesced in constitutional violations or

failed to adequately supervise officers. Chief Anderson’s mere knowledge of

Vohra’s past complaints is insufficient to establish supervisory liability.

Mackinney, 69 F.3d at 1008. Dismissal of Chief Anderson is affirmed.

      7. The district court did not err in granting summary judgment to the City of

Placentia (“the City”). “[A] plaintiff seeking to impose liability on a municipality

under § 1983 must identify a municipal policy or custom that caused the plaintiff’s

injury.” Velazquez v. City of Long Beach, 793 F.3d 1010, 1027 (9th Cir. 2015)

(citation and quotation marks omitted). Vohra has failed, however, to present

sufficient evidence of such a policy or custom upon which the City’s liability




                                           6
might be based.1 We affirm summary judgment for the City.

      8. For the reasons given above, we: (1) reverse the grant of summary

judgment and remand for further proceedings on Vohra’s false arrest and First

Amendment retaliation claims against Pascarella; (2) affirm the grant of summary

judgment of his equal protection claim; (3) affirm the dismissal of Chief

Anderson; (4) affirm the grant of summary judgment to the City and remand for

proceedings consistent with this memorandum disposition.

      Costs on appeal are awarded to appellant.




      1
       The district court did not abuse its discretion in denying Vohra’s motion to
compel as to any of his discovery requests.



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