Opinion
Argued and Submitted December 9, 2005.
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Page 673.
James Andre Boles, Esq., Law Offices of James Andre Boles, Reno, NV, for Plaintiff-Appellant.
Kelly S. Werth, AGNV--Office of the Nevada Attorney General, Carson City, NV, for Defendants-Appellees.
Appeal from the United States District Court for the District of Nevada, David Warner Hagen, District Judge, Presiding. D.C. No. CV-01-00636-DWH.
Before: B. FLETCHER, HAWKINS, and BEA, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
Dr. Mark Mattoon ("Mattoon") appeals the district court's grant of summary judgment based on qualified immunity to former Nevada Workers' Compensation fraud investigator Geoffrey Keogh ("Keogh").
A plaintiff alleging judicial deception by obtaining a warrant through false information "can only survive summary judgment on a defense claim of qualified immunity if the plaintiff can both establish a substantial showing of a deliberate falsehood or reckless disregard [for truth] and establish that, without the dishonestly included or omitted information, the magistrate would not have issued the warrant." Hervey v. Estes, 65 F.3d 784, 789 (9th Cir.1995).
Although Keogh may have been unprofessional and negligent in conducting the investigation, Mattoon's claim does not meet the high standard of deliberate falsehood or reckless disregard for the truth. In particular, there are plausible explanations for many of the serious inconsistencies between the statements attributed to witnesses in Keogh's probable cause affidavit and the witnesses' later deposition testimony.
We note, with approval, Nevada's statement at argument that its enforcement agents now memorialize witness statements in writing or by audiotape.
Without a substantial showing of deliberate falsehood or reckless disregard for the truth, Keogh is entitled to qualified immunity, and the district court's summary judgment grant is AFFIRMED.