                                                                           FILED
                            NOT FOR PUBLICATION                             APR 17 2012

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




                            FOR THE NINTH CIRCUIT



CLAUDIO RADOCCHIA,                               No. 10-56332

              Plaintiff - Appellant,             D.C. No. 2:09-cv-01680-SJO-RC

  v.
                                                 MEMORANDUM *
CITY OF LOS ANGELES; et al.,

              Defendants - Appellees,

  and

SONIA POWELL; et al.,

              Defendants.



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

                     Argued and Submitted February 16, 2012
                              Pasadena, California

                                                                                  **
Before: PREGERSON and BEA, Circuit Judges, and PRATT, District Judge.


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

        **  The Honorable Robert W. Pratt, District Judge for the U.S. District
Court for Southern Iowa, sitting by designation.
      Plaintiff-Appellant Claudio Radocchia appeals the district court’s grant of

summary judgment for Defendant-Appellees City of Los Angeles in this 42 U.S.C.

§ 1983 action. The parties are familiar with the facts underlying the appeal and

thus we do not include them here.

      Officer Monica McPartland had objective probable cause to arrest

Radocchia, thus the arrest was not a violation of the Fourth or Fourteenth

Amendments. See Whren v. United States, 517 U.S. 806, 814 (1996); Edgerly v.

City & Cnty. of San Francisco, 599 F.3d 946, 954 (9th Cir. 2010). Because

probable cause to prosecute is also objective and is an absolute defense against a

malicious prosecution claim, Radocchia’s malicious prosecution claim likewise

fails. Lassiter v. City of Bremerton, 556 F.3d 1049, 1054–55 (9th Cir. 2009).

      There was no triable issue of fact that McPartland fabricated evidence, see

Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001), or that McPartland

violated Radocchia’s equal protection rights because he was male or Mexican-

American.

      Radocchia’s Fifth Amendment rights were not violated by McPartland’s

failure to give him Miranda warnings because there is no free-standing Miranda

right: for a Fifth Amendment violation to occur, an interrogation must be used in a

criminal proceeding. Chavez v. Martinez, 538 U.S. 760, 767 (2003). Radocchia’s


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interrogation was not used in a criminal proceeding because it did not form the

basis of a criminal charge. Stoot v. City of Everett, 582 F.3d 910, 925 (9th Cir.

2009). In addition, Radocchia was not in custody during his interrogation. United

States v. Coutchavlis, 260 F.3d 1149, 1157–58 (9th Cir. 2001); Stansbury v.

California, 511 U.S. 318, 322 (1994).

      McPartland is entitled to qualified immunity because reasonable police

officers could conclude there was probable cause for Radocchia’s arrest by

McPartland. Rosenbaum v. Washoe County, 663 F.3d 1071, 1078 (9th Cir. 2011).

      No Monell claim survives against the City of Los Angeles because no claim

survives against McPartland acting within the scope of her employment. City of

Los Angeles v. Heller, 475 U.S. 796, 799 (1986).

      Radocchia’s conspiracy claims similarly fail because, as described above, he

was not deprived of any constitutional rights.

      Radocchia’s state law claims are all time-barred for failure to file

administrative claims within 6 months of his arrest, see Cal. Gov. Code §§ 911.2,

945.4, save his claim for malicious prosecution, which is barred by the finding that

there was probable cause for his arrest, Lassiter, 556 F.3d at 1054–55.

      The district court’s grant of summary judgment as to all of the foregoing

claims is therefore AFFIRMED.


                                          3
      However, to the extent that Radocchia brings state law claims against

McPartland individually acting outside the scope of her employment, those claims

are not barred by the existence of probable cause, the plaintiff’s failure timely to

file administrative claims under Cal. Gov. Code § 911.2, see Hoff v. Vacaville

Unified Sch. Dist., 19 Cal. 4th 925, 932 (1998), nor the governmental immunity of

Cal. Gov. Code § 821.6, see Soliz v. Williams, 74 Cal. App. 4th 577, 582 (1999).

In particular, Defendant-Appellee’s counsel admitted at oral argument that

McPartland was not acting within the scope of her employment when she

recommended to Stacy Gonsalves that Radocchia lose his job as a baby-sitter.

Defendant-Appellee’s counsel made no such admission with respect to

Radocchia’s other state law claims alleged against McPartland individually, and

thus we do not comment on the merits of these claims. Therefore, the district

court’s grant of summary judgment with respect to all state law claims against

McPartland individually acting outside the scope of her employment is

REVERSED and REMANDED for further proceedings consistent with this

disposition.

      Each side to bear its own costs.

AFFIRMED IN PART, REVERSED AND REMANDED IN PART.




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