Samuel MARULLO v. CITY OF HERMOSA BEACH, et al Case No. CV 06-4507 PA (FFMx) United States District Court, C.D. California Filed September 06, 2007 Counsel Thomas E. Beck, The Beck Law Firm, Los Alamitos, CA, for Samuel Marullo. Christopher D. Whyte, Best Best and Krieger LLP, Irvine, CA, Raymond Szu, S. Frank Harrell, Lynberg & Watkins, Orange, CA, Brianne J. Skopinich, The Doctors Company, Los Angeles, CA, Gregory E. Stone, Stone Dean LLP, Venessa F. Martinez, Stone Rosenblatt Cha APLC, Woodland Hills, CA, for City of Hermosa Beach, et al. Anderson, Percy, United States District Judge Proceedings: IN CHAMBERS *1 Before the Court are Motions for Summary Judgment filed by defendants Donovan Sellan (“Sellan”) (Docket No. 60) and defendants Steven Saylor (“Saylor”), Don Jones (“Jones”), Jaime Ramirez (“Ramirez”), and Steve Endom (“Endom”) (Docket No. 53).1/ Pursuant to Rule 78 of the Federal Rules of Civil Procedure and Local Rule 7-15, the Court finds that these matters are appropriate for decision without oral argument. The hearing calendared for August 20, 2007, is vacated, and the matters taken off calendar. I. Background This is an action brought pursuant to 42 U.S.C. § 1983 by plaintiff Samuel Marullo (“Plaintiff”). Plaintiff, a police officer employed by the Los Angeles Police Department, alleges that he was arrested by Hermosa Beach Police Department officers Jones and Saylor around 2:00 a.m. on July 31, 2004. Plaintiff had gone to a bar in the area sometime after 11:00 p m. on July 30, 2004 with a friend. While there, Plaintiff claims to have consumed two and a half alcoholic beverages before leaving the bar sometime between 1:30 and 2:00 a.m. on July 31, 2004. After stopping for pizza, Plaintiff and his friend waited at a taxi stand with twenty to thirty other people. As Plaintiff was about to enter a taxi, a drunk man, later identified as Richard Hamad (“Hamad”) stumbled into Plaintiff and attempted to get into the taxi ahead of Plaintiff. When this happened, Plaintiff said, “Hey, Bud, hold on. Hold on. There’s a line. We’re all waiting in line.” Hamad, said that he did not “see a fucking line.” Plaintiff responded in a raised voice that there “was a fucking line and I’m going to get in the cab right now.” Plaintiff and Hamad continued their exchange and pointed fingers at each other. Hearing raised voices, Jones and Saylor approached and one of the officers shined a flashlight at Plaintiff and Hamad. Plaintiff claims that as the officers approached, he told them that he was an off-duty LAPD officer, had a gun in his waistband, and tried to explain that “this is just an argument over a cab.” According to Plaintiff, Jones responded by saying that he did not “give a fuck who you are. Get the fuck out of here.” Plaintiff then said: “You don’t need to talk to me like that. I’m trying to explain what’s going on. Obviously you’ve never been to a police funeral. Had you been to one, you’d understand the importance of respecting another police officer.” Jones again told Plaintiff to leave the area. Plaintiff claims that at that point, some of the other people waiting in the taxi line began saying things like “That’s fucked up. He didn’t do anything wrong.” Plaintiff then said, “See, they even think you’re an embarrassment. Go back to Wal-Mart security.” Saylor and Jones then arrested Plaintiff. Saylor discovered Plaintiff’s service weapon during a pat down search. Plaintiff did not have his LAPD identification or a permit to carry a concealed weapon with him when he was arrested. Plaintiff was then transported to the Hermosa Beach police station. *2 After arriving at the police station at approximately 2:20 a.m., Plaintiff encountered Ramirez, the watch commander. According to Plaintiff, the first thing Ramirez said was: “You had to tell my guys they work at Wal-Mart security.” Plaintiff was booked on two misdemeanor charges for public intoxication in violation of California Penal Code section 647(f) and disturbing the peace by fighting in violation of California Penal Code section 415. Plaintiff, asserting that he was not intoxicated enough to be in violation of section 647(f), claims that he repeatedly requested that Ramirez test his blood alcohol level to prove that he was not drunk. Ramirez never subjected Plaintiff to a blood alcohol test. Plaintiff eventually called LAPD sergeant Ellis Imiazumi, the watch commander at his station, and informed him that he had been arrested. Sellan, another Hermosa Beach police officer, was present during part of that phone call. Plaintiff was charged on August 15, 2004 in a two-count misdemeanor complaint for disorderly conduct in violation of section 647(f) and disturbing the peace in violation of section 415(1). During a pretrial appearance at the Torrance Courthouse on October 22, 2004, Plaintiff spoke with Endom, a detective with the Hermosa Beach Police Department assigned to Plaintiff’s case. Plaintiff recorded his conversation with Endom using the recording feature on his cell phone. According to Plaintiff, Endom told Plaintiff that he should apologize to Jones and Saylor. Plaintiff asserted that Jones and Saylor owed the apology to him. Endom allegedly responded by threatening to ruin Plaintiff’s career. Plaintiff then complained to the city attorney assigned to the case about Endom’s unprofessional conduct. When the city attorney said that he did not believe Plaintiff, Plaintiff told him that he had recorded the conversation. The city attorney informed Endom of the recording and Endom took Plaintiff to a private room, attempted to erase the tape, berated, swore at, and threatened Plaintiff. Endom then released Plaintiff.2/ In February 2005, at Endom’s request, Sellan prepared a supplemental report detailing the phone conversation he overheard on July 31, 2004 between Plaintiff and Sgt. Imaizumi. According to Sellan’s report, he heard Plaintiff speak to someone Plaintiff referred to as “Sarge” and say something to the effect of “I fucked up” or “stepped on my dick” and that he would have done the same things as the arresting officers. Sellan testified to these facts when the criminal case against Plaintiff proceeded to trial in June 2005. Plaintiff contended at trial that Sellan’s testimony and supplemental police report, as well as the police reports and testimony of Jones and Saylor, contained knowingly false information. Although Plaintiff admited that the smell of alcohol was on his breath, he claimed that he was not as drunk as Jones, Saylor, and Sellan said that he was. Specifically, Plaintiff contended that Saylor, Jones, and Sellan fabricated evidence that he staggered, had bloodshot eyes, slurred his speech, and admitting that he had “fucked up” or would have done the same things as the arresting officers. *3 Plaintiff was found not guilty on both counts. He then commenced this action on July 19, 2006. Plaintiff originally asserted claims for false arrest, excessive force, malicious prosecution, violations of his due process rights, and conspiracy to violate civil rights against Hermosa Beach Police Chief Michael Lavin, Hermosa Beach Interim Police Chief David Barr, Saylor, Jones, Sellan, Ramirez, Endom, and Kelly Sullivan. Plaintiff also alleged a claim against the City of Hermosa Beach for unlawful customs and practices, pursuant to Monell v. New York City Dept. of Social Svcs., 436 U.S. 658, 690, 98 S. Ct. 2018, 2036, 56 L. Ed 2d 611 (1978). Plaintiff has dismissed his claims against Lavin, Barr, and Sullivan. Plaintiff has also dismissed some of his claims against the remaining defendants. Still pending are claims for: (1) false arrest against Saylor, Jones, Ramirez, and Endom; (2) malicious prosecution against Saylor, Jones, and Sellan; (3) due process violations against Ramirez; and (4) conspiracy to violate civil rights against Saylor, Jones, and Sellan. The Court bifurcated and stayed Plaintiff’s Monell claim against the City of Hermosa Beach. II. Analysis Plaintiff has brought his claims against defendants pursuant to 42 U.S.C. § 1983. Section 1983 creates a cause of action against any person who, acting under color of state law, abridges rights created by the Constitution and laws of the United States. Section 1983 does not itself create substantive rights but instead provides “a method for vindicating federal rights elsewhere conferred.” Baker v. McCollan, 443 U.S. 137, 144 n.3, 99 S. Ct. 2689, 2694, 61 L. Ed. 2d 433 (1979). To state a § 1983 claim, a plaintiff must show: (1) that defendants violated the plaintiff’s federal rights; and (2) that defendants acted under color of state law. See West v. Atkins, 487 U.S. 42, 48, 108 S. Ct. 2250, 2254-55, 101 L. Ed. 2d 40 (1988). The threshold question in the qualified immunity analysis is whether the officer violated the plaintiff’s constitutional rights. Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156, 150 L. Ed. 2d 272 (2001). If the answer to that threshold question is yes, the officer may still be entitled to qualified immunity if: 1) the law governing the official’s conduct was not clearly established; or 2) a reasonable officer could have believed the conduct was lawful. Mena v. City of Simi Valley, 226 F.3d 1031, 1036 (9th Cir. 2000) (citing Act Up! Portland v. Bagley, 988 F.2d 868, 871 (9th Cir. 1993) ). The officer is entitled to immunity even if he may have actually violated the Constitution. See Saucier, 533 U.S. at 205, 121 S. Ct. at 2158; see also Romero v. Kitsap County, 931 F.2d 624, 627 (9th Cir. 1991). “In essence, at the first step, the inquiry is whether the facts alleged constitute a violation of the plaintiff’s rights. If they do, then, at the second step, the question is whether the defendant could nonetheless have reasonably but erroneously believed that his or her conduct did not violate the plaintiff’s rights.” Devereaux v. Abbey, 263 F.3d 1070, 1074 (9th Cir. 2001); see also Brosseau v. Haugen, 543 U.S. 194, 198-99, 125 S. Ct. 596, 599, 160 L. Ed. 2d 583 (2004) (“Qualified immunity shields an officer from suit when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted. Because the focus is on whether the officer had fair notice that her conduct was unlawful, reasonableness is judged against the backdrop of the law at the time of the conduct. If the law at that time did not clearly establish that the officer’s conduct would violate the Constitution, the officer should not be subject to liability or, indeed, even the burdens of litigation.”) (citing Saucier, 533 U.S. at 206, 121 S. Ct. at 2158). A. False Arrest Plaintiff contends that Saylor and Jones lacked probable cause to arrest him. Plaintiff further asserts that Ramirez is liable for false arrest because he failed to intervene to stop an illegal arrest. Finally, Plaintiff alleges that Endom’s detention of him on October 22, 2004 at the Torrance Courthouse violated his Fourth Amendment rights because Endom lacked probable cause. *4 The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” “[A] warrantless arrest by a law officer is reasonable under the Fourth Amendment where there is probable cause to believe that a criminal offense has been or is being committed.” Devenpeck v. Alford, 543 U.S. 146, 152, 125 S. Ct. 588, 593, 160 L. Ed. 2d 537 (2004); Blankenhorn v. City of Orange, 485 F.3d 463, 471 (9th Cir. 2007) (“The test for whether probable cause exists is whether ‘at the moment of arrest the facts and circumstances within the knowledge of the arresting officers and of which they had reasonably trustworthy information were sufficient to warrant a prudent [person] in believing that the petitioner had committed or was committing an offense.’ ”) (quoting United States v. Jensen, 425 F.3d 698, 704 (9th Cir. 2005) ); Hart v. Parks, 450 F.3d 1059, 1065-66 (9th Cir. 2006). “Whether probable cause exists depends upon the reasonable conclusion to be drawn from the facts known to the arresting officer at the time of the arrest.” Devenpeck, 543 U.S. at 152, 125 S. Ct. at 593, 160 L. Ed. 2d 537. As long as the facts known to the officer establish probable cause for an arrest, the officer cannot be liable for false arrest even if the officer arrests the suspect for a crime for which the officer lacks probable cause. Id. at 153, 125 S. Ct. at 593-94, 160 L. Ed. 2d 537 (“Our cases make dear that an arresting officer’s state of mind (except for the facts that he knows) is irrelevant to the existence of probable cause. That is to say, his subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause. As we have repeatedly explained, ‘ “the fact that the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.’ ”) (quoting Whren v. United States, 517 U.S. 806, 813, 116 S. Ct. 1769, 1774, 135 L. Ed. 2d 89 (1996) ); Id. at 154-55, 125 S. Ct. at 594, 160 L. Ed. 2d 537 (“Subjective intent of the arresting officer, however it is determined (and of course subjective intent is always determined by objective means), is simply no basis for invalidating an arrest. Those are lawfully arrested whom the facts known to the arresting officers give probable cause to arrest”). 1. Saylor, Jones, and Ramirez Saylor and Jones arrested Plaintiff for violations of California Penal Code sections 647(f) and 415. Section 647(f) provides that a person is guilty of disorderly conduct, a misdemeanor, if the person: [I]s found in any public place under the influence of intoxicating liquor... in a condition that he or she is unable to exercise care for his or her own safety or the safety of others, or by reason of his or her being under the influence of intoxicating liquor... interferes with or obstructs or prevents the free use of any street, sidewalk, or other public way. Cal. Penal Code § 647(f). Plaintiff claims that although the smell of alcohol was on his breath at the time of his arrest at around 2:00 a.m. on July 31, 2004, he was not so intoxicated that he was “unable to exercise care for his ... own safety or the safety of others.” In so arguing, Plaintiff ignores the second way in which one can violate section 647(f). Indeed, based solely on his own admissions, Saylor and Jones observed Plaintiff, who had alcohol on his breath, engaging in an argument at the taxi stand with Mr. Hamad. That disturbance “interfer[ed] with or obstruct[ed] or prevent[ed] the free use of any street, sidewalk, or other public way.” Having smelled the alcohol on his breath, and having witnessed Plaintiff’s argument with Mr. Hamad, Saylor and Jones had probable cause to believe that Plaintiff had committed the offense of disorderly conduct. *5 Saylor and Jones similarly had probable cause to arrest Plaintiff for disturbing the peace in violation of California Penal Code section 415. Section 415 establishes that it is a misdemeanor for: (1) Any person who unlawfully fights in a public place or challenges another person in a public place to fight. (2) Any person who maliciously and willfully disturbs another person by loud and unreasonable noise. (3) Any person who uses offensive words in a public place which are inherently likely to provoke an immediate violent reaction. Cal. Penal Code § 415. According to Plaintiff’s own admissions, he and Hamad were arguing, exchanged profanities, and were pointing fingers at each other. Witnessing this disturbance, Saylor and Jones had probable cause to arrest Plaintiff for violating sections 415(1) and (3). Although he was not arrested for it, Saylor and Jones also had probable cause to arrest Plaintiff for California Penal Code section 12025, which makes it a crime to carry a concealed firearm. According to Plaintiff, as soon as he saw Saylor and Jones approaching, he informed them that he had a gun in his waistband. However, Plaintiff did not have his LAPD identification with him at the time. Therefore, at the time of his arrest, there was no ready proof that he was in fact authorized to carry a concealed weapon. Plaintiff has cited to no authority indicating that Saylor and Jones lacked probable cause for an arrest in those circumstances. To hold otherwise would invite others to falsely claim that they are authorized to carry concealed weapons. Ramirez was not present when Plaintiff was arrested. “In order for a person acting under color of state law to be liable under section 1983there must be a showing of personal participation in the alleged rights deprivation: there is no respondeat superior liability under section 1983.” Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002) (citing Monell, 436 U S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611). Because Ramirez did not personally participate in the arrest, Plaintiff instead contends that Ramirez, as the watch commander, is liable for false arrest because he failed to intervene and stop Saylor and Jones’ unlawful arrest. “Supervisory liability is imposed against a supervisory official in his individual capacity for his ‘own culpable action or inaction in the training, supervision, or control of his subordinates,’ for his ‘acquiesce[nce] in the constitutional deprivations of which [the] complaint is made,’ or for conduct that showed a “ ‘reckless or callous indifference to the rights of others.’ ” Larez v. City of Los Angeles, 946 F.2d 630, 646 (9th Cir. 1991) (quoting Clay v. Conlee, 815 F.2d 1164, 1170 (8th Cir. 1987), Meade v. Grubbs, 841 F.2d 1512, 1528 (10th Cir. 1988), and Bordanaro v. McLeod, 871 F.2d 1151, 1163 (1st Cir. 1989)); see also Graves v. City of Coeur d’Alene, 339 F.3d 828, 848 (9th Cir. 2003). Because Saylor and Jones had probable cause to arrest Plaintiff, Ramirez had no duty to intervene. See Graves, 339 F.3d at 848 (“Because we have determined that Dixon is not liable because of qualified immunity, it would be surprising if Surplus could be held liable as a supervisor.”). *6 The undisputed facts establish that Saylor and Jones had probable cause to arrest Plaintiff. As a result, Plaintiff’s false arrest claim against them, and Ramirez, must fail. Summary judgment is therefore appropriate on Plaintiff’s § 1983 false arrest claims against Saylor, Jones, and Ramirez. Alternatively, even assuming that Saylor, Jones, and Ramirez violated Plaintiff’s Fourth and Fourteenth Amendment rights against false arrest, the Court concludes that Saylor, Jones, and Ramirez are entitled to qualified immunity because a reasonable officer in their position would not have known that arresting Plaintiff violated the Constitution. 2. Endom Plaintiff’s false arrest claim against Endom arises out of the October 22, 2004 incident at the Torrance Courthouse. Although Endom has moved for summary judgment on this claim, the only facts identified in defendants’ Separate Statement of Uncontroverted Facts relating to the incident are drawn from Plaintiff’s interrogatory responses. See Hermosa Beach Defendants’ Separate Statement, Fact 35. Endom has provided the Court with no facts, either in the Separate Statement or elsewhere, concerning the circumstances surrounding the October 22, 2004 detention. Specifically, there is no evidence submitted by Endom concerning the circumstances of his conversation with Plaintiff which Plaintiff recorded. Indeed, the record does not contain either deposition testimony or a declaration from Endom. Without that information, the Court cannot determine if the conversation between Endom and Plaintiff was a “confidential communication,” the recording of which might violate California Penal Code section 632. Cal. Penal Code § 632(a) (making it a crime for anyone to “intentionally and without the consent of all parties to a confidential communication, by means of any electronic amplifying or recording device, [to] eavesdrop[ ] upon or record[ ] the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device ....”); see also Cal. Penal Code § 632(c) (defining the term “confidential communication” to include “any communication carried on in circumstances as may reasonably indicate that any party to the communication desires it to be confined to the parties thereto, but excludes a communication made in a public gathering or in any legislative, judicial, executive or administrative proceeding open to the public, or in any other circumstance in which the parties to the communication may reasonably expect that the communication may be overheard or recorded.”). Because it was Endom’s initial burden on summary judgment to establish probable cause for his detention of Plaintiff, his failure to come forward with any evidence suggesting that Plaintiff’s recording of the conversation was criminal prevents the Court from concluding that Endom did not violate Plaintiff’s constitutional rights or is otherwise entitled to qualified immunity. Endom’s Motion for Summary Judgment is therefore denied. B. Malicious Prosecution Plaintiff alleges, pursuant to 42 U.S.C. § 1983, that Saylor, Jones, and Sellan violated Plaintiff’s constitutional rights by maliciously prosecuting him. The general rule is that a malicious prosecution claim is not cognizable under § 1983 if process is available in the state judicial system to provide a remedy. Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, a malicious prosecution claim may be brought pursuant to § 1983 if “a malicious prosecution is conducted with the intent to deprive a person of equal protection of the laws or is otherwise intended to subject a person to a denial of constitutional rights.” Bretz v. Kelman, 773 F.2d 1026, 1031 (9th Cir. 1985). Thus, a malicious prosecution plaintiff “must show that the defendants prosecuted her with malice and without probable cause, and that they did so for the purpose of denying her equal protection or another specific constitutional right.” Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th Cir. 1995). A claim for malicious prosecution under § 1983 incorporates the elements of the state common law tort of malicious prosecution. See Awabdy v. City of Adelanto, 368 F.3d 1062, 1066-68 (9th Cir. 2004); Usher, 828 F.2d at 562. The elements for malicious prosecution of either a criminal or civil proceeding under California law are that a prior action was commenced by or at the direction of the defendant, was pursued to a legal termination in plaintiff’s favor, was brought without probable cause, and was initiated with malice. Sagonowsky v. More, 64 Cal. App. 4th 122, 128, 74 Cal. Rptr. 2d 118, 120 (1998). *7 Ordinarily, the filing of a criminal complaint “immunizes investigating officers ... from damages suffered thereafter because it is presumed that the prosecutor filing the complaint exercised independent judgment in determining that probable cause for an accused’s arrest exists at that time.” Smiddy v. Varney, 665 F.2d 261, 266 (9th Cir. 1981). “This presumption may be rebutted, however. For example, a showing that the district attorney was pressured or caused by the investigating officers to act contrary to his independent judgment will rebut the presumption and remove the immunity. Also the presentation by the officers to the district attorney of information known by them to be false will rebut the presumption.” Id., 665 F.2d at 266-67; see also Blankenhorn, 485 F.3d at 482 (“A police officer who maliciously or recklessly makes false reports to the prosecutor may be held liable for damages incurred as a proximate result of those reports.”); Newman v. County of Orange, 457 F.3d 991, 993 (9th Cir. 2006). Where, as here, a plaintiff attempts to rebut the presumption of prosecutorial independence by claiming that the charges filed against him were based on fabricated evidence, the plaintiff may not rely solely on his own testimony to support a fabrication claim: Prosecutors generally rely on police reports—not suspect’s stories—when deciding whether charges should be filed. We presume they rely on their independent judgment when deciding whether such reports warrant the filing of criminal charges, unless contrary evidence is presented. If charges are filed, Smiddy protects the officers unless such evidence shows that officers interfered with the prosecutor’s judgment in some way, by omitting relevant information, by including false information, or by pressuring the prosecutor to file charges. A suspect’s account of an incident, by itself, is unlikely to influence a prosecutor’s decision, and thus, it cannot, by itself, serve as evidence that officers interfered with the prosecutor’s decision. Newman, 457 F.3d at 995; Id. (“To rebut the presumption of independent judgment and to survive summary judgment on a malicious prosecution claim, a plaintiff must provide more than an account of the incident in question that conflicts with the account of the officers involved.”); Sloman v. Tadlock, 21 F.3d 1462, 1474 (9th Cir. 1994). In support of his malicious prosecution claim, Plaintiff’s discovery responses assert that Saylor, Jones, and Sellan “prepared and filed a knowingly false crime report,” “mislead the prosecution and encouraged them to continue to prosecute me through the jury trial,” and “gave false testimony in the trial in an effort to cause my fraudulent criminal conviction.” Importantly, Plaintiff relies solely on his own testimony to support his claim that the officers fabricated evidence against him. Indeed, although Plaintiff claims that his “version of the exculpatory facts are supported by independent witnesses Sgt. Ellis Ima[i]zumi and Sgt. Bojorquez, Robert Knight, [and] Richard Hamad,” Plaintiff’s responses to the Separate Statement of Undisputed Facts filed by the defendants do not cite to any such evidence as required by Local Rule 56-2. In ruling on a summary judgment motion, the Court will only consider facts which are included in the Statement of Genuine Issues. See Local Rule 56-3; see also Carmen v San Francisco Unified School Dist., 237 F.3d 1026, 1031 (9th Cir. 2001) (“The district court need not examine the entire file for evidence establishing a genuine issue of fact, where the evidence is not set forth in the opposing papers with adequate references so that it could conveniently be found.”). Importantly, Plaintiff does not cite to, or attach, any deposition testimony from any of these witnesses concerning Plaintiff’s level of intoxication.3/ Nor has Plaintiff provided a declaration from any of these witnesses attesting to the facts Plaintiff claims they would testify to at trial. Plaintiff’s assertions of what these witnesses might say fall well short of the admissible probative evidence a party must provide to defeat a motion for summary judgment. *8 The only other items of evidence cited by Plaintiff, other than his own testimony, are the booking photograph of him and a videotape of him at the police station twenty to thirty minutes after his arrest. According to Plaintiff, the photograph shows that contrary to the assertions of Saylor and Jones, Plaintiff’s eyes were not bloodshot. Plaintiff also argues that the videotape, which has no audio and is time lapsed, shows that he was not staggering or as intoxicated as the officers claim he was. Neither the photograph or the videotape are probative independent evidence that the officers fabricated evidence sufficient to create a triable issue of fact. See Smiddy, 665 F.2d at 266-67; see also Fazio v. City and County of San Francisco, 125 F.3d 1328, 1331 (9th Cir. 1997) (“[A] mere ‘scintilla’ of evidence will be insufficient to defeat a properly supported motion for summary judgment; instead, the nonmoving party must introduce some ‘significant probative evidence tending to support the complaint.” ’) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202 (1986) ). Additionally, to the extent Plaintiff argues that Saylor, Jones, and Sellan fabricated their trial testimony or perjured themselves, those allegations do not support a claim under § 1983 because officers are absolutely immune for testimony they give at trial. See Briscoe v. LaHue, 460 U.S. 325, 326, 103 S. Ct. 1108, 1110-11 (1983) (holding that § 1983 does not authorize a “person to assert a claim for damages against a police officer for giving perjured testimony at his criminal trial”); see also Little v. City of Seattle, 863 F.2d 681, 684 (9th Cir. 1989). The Court therefore concludes that Plaintiff has failed to establish a genuine issue of material fact in support of his claim that Saylor, Jones, and Sellan fabricated evidence. The Court also concludes that Plaintiff has failed to rebut the presumption of the prosecutor’s independent judgment. Accordingly, Saylor, Jones, and Sellan are entitled to summary judgment on Plaintiff’s § 1983 malicious prosecution claim. C. Violation of Due Process Rights Plaintiff asserts that Ramirez violated his rights to due process by “refus[ing] to allow a breath alcohol test” which “depriv[ed] me of exculpatory evidence he had the duty to capture.” Ramirez, however, had no constitutional obligation to obtain exculpatory evidence or perform any particular test. Youngblood v. Arizona, 488 U.S. 51, 59, 109 S. Ct. 333, 338, 102 L. Ed. 2d 281 (1988) (“The situation here is no different than a prosecution for drunken driving that rests on police observation alone; the defendant is free to argue to the finder of fact that a breathalyzer test might have been exculpatory, but the police do not have a constitutional duty to perform any particular tests.”). Only when the police fail to obtain evidence in “bad faith” may a plaintiff establish a due process violation: We think that requiring a defendant to show bad faith on the part of the police both limits the extent of the police’s obligation to preserve evidence to reasonable bounds and confines it to that class of cases where the interests of justice most clearly require it, i.e., those cases in which the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant. We therefore hold that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law. Id. at 58, 109 S. Ct. at 337, 102 L Ed 2d 281. Here, the only evidence Plaintiff relies on to establish that Ramirez refused to test Plaintiff’s blood alcohol level in bad faith is the purported comment by Ramirez that Plaintiff “had to tell my guys they work at Wal-Mart security.” Whatever this statement may be evidence of, it is not evidence indicating that Ramirez knew the breathalyzer “could form a basis for exonerating the defendant.” Id.; see also United States v. Heffington, 952 F.2d 275, 281 (9th Cir. 1991) (“Bad faith is shown where ‘the police themselves by their conduct indicate that the evidence could form a basis for exonerating the defendant.” ’) (quoting Youngblood, 488 U.S. at 58, 109 S. Ct. at 337, 102 L. Ed. 2d 281). Plaintiff has failed to establish a triable issue of fact suggesting that Ramirez refused to test Plaintiff’s blood alcohol level in bad faith. As a result, Ramirez is entitled to summary judgment on Plaintiff’s due process claim. D. Conspiracy to Violate Civil Rights *9 Plaintiff alleges, pursuant to § 1983, that Saylor, Jones, and Sellan conspired to violate Plaintiff’s civil rights. Specifically, Plaintiff claims that Saylor, Jones, and Sellan “wrote and filed false reports, misl[led] prosecutors and gave false testimony.” Plaintiff’s Response to Jones’ Interrogatories, Response No. 19; see also id., Responses 20-21. Plaintiff’s conspiracy claim is therefore nearly identical to Plaintiff’s malicious prosecution claim. As the Court has already determined, Plaintiff has failed to establish a genuine issue of material fact in support of that claim. Merely recharacterizing the malicious prosecution claim as one for conspiracy does not change the result. See Fonda v. Gray, 707 F.2d 435, 438 (9th Cir. 1983) (“The mere fact that a conspiracy is alleged, however, will not defeat an adequately supported motion for summary judgment.”). Indeed, because there is no evidence of a “meeting of the minds,” the evidentiary basis for Plaintiff’s conspiracy claim is even weaker than his malicious prosecution claim. See id. (“To prove a conspiracy ... under § 1983, an agreement or “meeting of the minds” to violate constitutional rights must be shown.”). With respect to Sellan, for instance, Plaintiff asserts that the preparation of a supplemental report concerning the telephone conversation he overheard is evidence of Sellan’s participation in the conspiracy. That report was prepared at the request of Endom, but Plaintiff does not allege that Endom was a member of the conspiracy. Plaintiff does not explain how one who acts at the request of someone who is not a member of a conspiracy could nevertheless be part of a conspiracy. Id. (“While it is not necessary to prove that each participant in a conspiracy know the exact parameters of the plan, they must at least share the general conspiratorial objective.”). Similarly, with respect to Saylor and Jones, Plaintiff has provided no evidence of an agreement between the members of the alleged conspiracy. The Court therefore concludes that Saylor, Jones and Sellan are entitled to summary judgment on Plaintiff’s conspiracy claim. CONCLUSION For all of the foregoing reasons, the Court grants Sellan’s Motion for Summary Judgment. The Court also finds that Saylor, Jones, and Ramirez are entitled to summary judgment. The Court denies Endom’s Motion for Summary Judgment. The Court notes that the parties have filed some, but not all, of their pretrial documents. Many of the documents that the parties have filed were filed late, some that were required to be filed jointly were not prepared and signed by all parties, and others did not comply with the requirements of the Local Rules and the Court’s March 17, 2006 Scheduling Order. The Court therefore orders the parties to show cause in writing, no later than Tuesday, September 11, 2007, why they should not be sanctioned for failing to adequately prepare and timely file the required pretrial documents. The Court further orders the parties to submit amended pretrial documents which comply with the Local Rules and the Court’s Scheduling Order by Tuesday, September 11, 2007. The failure to file the required documents in the required format by that date may result in the dismissal of the action, striking the answer and entering a default, and/or the imposition of sanctions. IT IS SO ORDERED. Footnotes 1/ The Court notes that the 23-page Reply filed by the Hermosa Beach defendants was nearly twice as long as the twelve pages allowed in the Court’s Standing Order. As the Court has made clear before, it expects the parties to comply with the Federal Rules of Civil Procedure, the Local Rules, and the Court’s orders. Any future violations of the Federal Rules of Civil Procedure, the Local Rules, or the Court’s orders may result in the imposition of sanctions. 2/ At least one of Plaintiff’s responses to defendants’ interrogatories contends that Endom handcuffed Plaintiff. See Amended Declaration of Christopher Whyte, Ex. F, p. 4 (Response to Jones Interrogatory No. 8). In other discovery provided by Plaintiff, he does not assert that he was handcuffed. See, e.g., id., Ex. E, pp. 11-12 (Response to Hermosa Beach Interrogatory 20) (no mention of being handcuffed by Endom); see also Plaintiff’s Exhibits in Opposition to Hermosa Beach Defendants’ Motion for Summary Judgment, Ex. U, p. 4 (Expert Report of David Stothers) (“The entire encounter (detention/arrest) took 20-30 minutes. Marulllo was never handcuffed, nor was he formally booked.”) 3/ In support of his Opposition, Plaintiff submits no deposition testimony from witnesses Imaizumi, Bojorquez, and Knight. The portion of Hamad’s deposition submitted by Plaintiff does not address Plaintiff’s level of intoxication.