                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                            FILED
                            FOR THE NINTH CIRCUIT
                                                                             JUN 16 2016
                                                                         MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS
STEVEN PECK; et al.,                             No. 14-15526

              Plaintiffs - Appellants,           D.C. No. 2:12-cv-01371-JAT

 v.
                                                 MEMORANDUM*
MARGARET HINCHEY, individually
and in her official capacity as a peace
officer with the Arizona Attorney
General’s Office; et al.,

              Defendants - Appellees.



STEVEN PECK; et al.,                             No. 14-15717

              Plaintiffs - Appellees,            D.C. No. 2:12-cv-01371-JAT

 v.

MARGARET HINCHEY, individually
and in her official capacity as a peace
officer with the Arizona Attorney
General’s Office,

              Defendant - Appellant.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                   Appeal from the United States District Court
                            for the District of Arizona
                James A. Teilborg, Senior District Judge, Presiding

                       Argued and Submitted March 16, 2016
                            San Francisco, California

Before: BYBEE and N.R. SMITH, Circuit Judges and KORMAN,** Senior District
Judge.

      Plaintiff-appellants are Phoenix Police Department (“PPD”) officers who

were subjected to a criminal investigation. After the charges against them were

dismissed, they filed suit against the internal investigator, Paula Veach, and the

state investigator, Margaret Hinchey, for various claims under 42 U.S.C. § 1983

and Arizona state law relating to fabrication of evidence and malicious

prosecution. The district court granted Hinchey’s motion to dismiss, and granted

Veach’s motion for summary judgment. On appeal, the plaintiffs argue that the

district court erred in: (1) finding that Hinchey was entitled to absolute immunity

with respect to four of plaintiffs’ claims; (2) dismissing the complaint against

Hinchey without leave to amend; and (3) granting summary judgment in favor of




       **
             The Honorable Edward R. Korman, Senior District Judge for the U.S.
District Court for the Eastern District of New York, sitting by designation.

                                          2
Veach.1 We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part and

reverse and remand in part.

      1. We review the decision on the motion to dismiss de novo. See Watson v.

Weeks, 436 F.3d 1152, 1157 (9th Cir. 2006). Under Rehberg v. Paulk, 132 S. Ct.

1497, 1505–07 (2012), grand jury witnesses have absolute immunity both for their

testimony and for “preparatory activity, such as a preliminary discussion in which

the witness relates the substance of his intended testimony.” Id. at 1507. After

acknowledging that Rehberg does not extend to non-testimonial, out-of-court

fabrication of evidence, the district court concluded that Counts I, II, III, and VI

were “inextricably tied” to Hinchey’s grand jury testimony and thus barred by

absolute immunity. We affirm the district court’s decision with respect to Count

VI, but reverse on Counts I, II, and III.

      The district court determined that Counts I, II, and III are “inextricably tied”

to Hinchey’s grand jury testimony, because Hinchey was part of a “conspirac[y] to

testify falsely.” See Lisker v. City of L.A., 780 F.3d 1237, 1241 (9th Cir. 2015). We

disagree. Construing the complaint in the light most favorable to the plaintiffs,

Counts I, II, and III are not based on allegations that Hinchey conspired to testify



      1
        Hinchey also filed a cross-appeal, Case Number 14-15717, which Hinchey
indicated in her brief she intended to withdraw. We therefore dismiss this appeal.
                                            3
falsely, but rather on Hinchey’s alleged non-testimonial, out-of-court fabrication of

evidence to support criminal charges. This alleged conduct is not protected by

absolute immunity. See Lisker, 780 F.3d at 1242 (denying absolute immunity and

finding that police investigative notes and reports were not “inextricably tied” to

testimony and “[fell] outside the protection of absolute immunity” because “police

investigative materials have evidentiary value wholly apart from assisting trial

testimony”).

      2. Because the plaintiffs sought leave to amend the Second Amended

Complaint after the May 31, 2013 deadline set by the district court’s modified

scheduling order, their ability to amend is governed by Fed. R. Civ. P. 16. We

review for abuse of discretion the district court’s denial of a motion to amend the

scheduling order. Johnson v. Mammoth Recreations, Inc., 975 F.2d 604, 607 (9th

Cir. 1992). The plaintiffs had three previous opportunities to amend their

complaint and did not demonstrate “good cause” to amend past the deadline. Id. at

608. The district court did not abuse its discretion, and we affirm the district

court’s decision on this issue. Accordingly, the district court need only consider

the allegations in the Second Amended Complaint on remand.

      3. We review de novo the district court’s grant of summary judgment in

favor of Veach. Szajer v. City of L.A., 632 F.3d 607, 610 (9th Cir. 2011).


                                           4
Plaintiffs allege two main claims against Veach: fabrication of evidence claims, see

Devereaux v. Abbey, 263 F.3d 1070, 1074–75 (9th Cir. 2001) (en banc) (“[T]here

is a clearly established constitutional due process right not to be subjected to

criminal charges on the basis of false evidence that was deliberately fabricated by

the government.”); and a malicious prosecution claim. Plaintiffs have a causation

problem with respect to both the Devereaux claims and the malicious prosecution

claim, as they cannot demonstrate that Veach’s conduct directly resulted in the

bringing of criminal charges against them.     Awabdy v. City of Adelanto, 368 F.3d

1062, 1067 (9th Cir. 2004) (to show malicious prosecution, plaintiffs must

demonstrate that state or local officials engaged in conduct that was “actively

instrumental in causing the initiation of legal proceedings”); Devereaux, 263 F.3d

at 1074–75 (plaintiffs must show that they were “subjected to criminal charges”

based on fabricated evidence). The purpose of Veach’s investigation was to

determine whether the plaintiffs had violated PPD policies, not whether criminal

charges could be brought. The Attorney General’s Office was aware that Veach’s

investigation was incomplete and that the spreadsheet contained errors. The

plaintiffs have not raised a genuine issue of material fact that Veach caused the

plaintiffs to be subjected to criminal charges. We therefore affirm the district

court’s grant of summary judgment in favor of Veach.


                                           5
     Appeals 14-15526 AFFIRMED IN PART, REVERSED AND

REMANDED IN PART. The parties shall bear their own costs.

     Appeals 14-15717 DISMISSED.




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