                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 22 2010

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




                            FOR THE NINTH CIRCUIT



RICHARD MADDOX; et al.,                          No. 09-15321

              Plaintiffs - Appellants,           D.C. No. 2:06-cv-00072-GEB-
                                                 EFB
  v.

COUNTY OF SACRAMENTO; et al.,                    MEMORANDUM *

              Defendants - Appellees.



                    Appeal from the United States District Court
                       for the Eastern District of California
                    Garland E. Burrell, District Judge, Presiding

                        Argued and Submitted June 14, 2010
                             San Francisco, California

Before: RYMER and FISHER, Circuit Judges, and PALLMEYER, District
Judge.**

       Tien Hong Vo, Thong Vo, Ngau Thi Nguyen, Sonia Luong (collectively, the

Vos), Richard Maddox, and Karen Alexandrou appeal the district court’s grant of

summary judgment for the County of Sacramento and several employees of the

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The Honorable Rebecca R. Pallmeyer, United States District Judge for
the Northern District of Illinois, sitting by designation.
County’s District Attorney’s (DA) office. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm.

      Maddox and Alexandrou lack standing for their employment claims because

their injuries are not “fairly traceable” to the actions of any named defendant. See

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992). While Maddox and

Alexandrou were reassigned in order to facilitate a better working relationship with

the DA’s office, none of the named defendants had authority over employment

decisions within the Code Enforcement Division. See Pritikin v. Dep’t. of Energy,

254 F.3d 791, 798 (9th Cir. 2001) (holding that plaintiffs did not have standing

because they did not sue the “party with the clear ability to act”).

      Contrary to the Vos’ submission, the district court did not determine that

they were barred from bringing their California Fair Employment and Housing Act

(FEHA) claim because they did not first file a government tort claim pursuant to

California Government Code § 945.4. Rather, the court dismissed the California

Unruh Civil Rights Act claims, California Civil Code § 53 claims, and twelve state

tort claims for failure to file a government tort claim – but not the FEHA claim.

      Nor did the district court determine that the prosecutors were entitled to

absolute immunity with regard to the investigation of the Vos’ property, as the Vos

contend; the court resolved those claims on other grounds. To the degree the Vos


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argue that absolute immunity does not extend to Natalia Luna’s decision to initiate

criminal proceedings against the Vos, we disagree. The initiation of a prosecution

is a decision that is “intimately associated with the judicial phase of the criminal

process,” and Luna is absolutely immune from liability arising out of that decision.

Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976).

       The Vos’ generalized objections to inspecting the property on October 27 do

not raise a genuine issue of material fact in light of specific declarations by Captain

Cooper, Lieutenant To, and Inspector Weikel that Nguyen consented to inspection

of the property. See Fed. R. Civ. P. 56(e)(2) (“[A]n opposing party may not rely

merely on allegations or denials . . . ; rather, its response must . . . set out specific

facts showing a genuine issue for trial.”); 389 Orange St. Partners v. Arnold, 179

F.3d 656, 664 (9th Cir. 1999) (holding that “vague claims” cannot generate a

factual dispute “adequate to defeat summary judgment”). Neither does the fact that

Alexandrou did not see Cooper and To speaking with Nguyen and Thong show

that they did not actually talk.

       The Vos proffered no evidence that they were treated differently from

similarly situated property owners. Maddox’s conclusory opinion is insufficient to

create a triable issue on whether the District Attorney’s office targeted group

homes used by mentally disabled persons. Accordingly, they cannot make out an


                                            -3-
equal protection claim for selective prosecution. See United States v. Lee, 786

F.2d 951, 957 (9th Cir. 1986) (“To establish impermissible selective prosecution, a

defendant must show that others similarly situated have not been prosecuted and

that prosecution is based on an impermissible motive.”).

      Finally, the Vos claim summary judgment was inappropriate because they

lacked the opportunity to complete discovery. However, the point is not preserved

as they failed to object to the magistrate judge’s order denying their motion to

compel discovery. See Fed. R. Civ. P. 72(a) (“A party may not assign as error a

defect in the order not timely objected to.”); Simpson v. Lear Astronics Corp., 77

F.3d 1170, 1173-74 (9th Cir. 1996). Nor did they move for a continuance under

Federal Rule of Civil Procedure 56(f), or suggest in their opposition to summary

judgment that more discovery was necessary. In these circumstances we see no

abuse of discretion. Cf. Cal. Union Ins. Co. v. Am. Diversified Sav. Bank, 914 F.2d

1271, 1278 (9th Cir. 1990) (“The district court does not abuse its discretion by

denying further discovery if the movant has failed diligently to pursue discovery in

the past, or if the movant fails to show how the information sought would preclude

summary judgment.” (internal citations omitted)).

      AFFIRMED.




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