Peter T. LITTLEFAIR, Plaintiff-Appellant, v. Sergeant Arne GOSNER, in his individual and official capacity; et al., Defendants-Appellees, 395 F. App'x 441

MEMORANDUM Peter Littlefair appeals the district court’s order granting

summary judgment based on qualified immunity in favor of Sergeant Arne Gosner on Littlefair’s claims brought under 42 U.S.C. § 1983. We have jurisdiction under 28 U.S.C § 1291, and we affirm. We review de novo the district court’s grant of

summary judgment. Ewing v. City of Stockton, 588 F.3d 1218, 1223 (9th Cir.2009). Viewing the evidence in the light most favorable to the nonmoving party and drawing all justifiable inferences in its favor, we must “determine whether there are genuine issues of material fact and whether the district court correctly applied the relevant substantive law.” Id. Where a plaintiff brings a § 1983 claim alleging false or omitted statements in a search warrant affidavit, the standard for qualified immunity is governed by Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Liston v. County of Riverside, 120 F.3d 965, 972 (9th Cir.1997). To survive

summary judgment for a claim for judicial deception, a plaintiff “must make (1) a ‘substantial showing” of deliberate falsehood or reckless disregard for the truth and (2) establish that, but for the dishonesty, the challenged action would not have occurred.” Id. at 973 (quoting Hervey v. Estes, 65 F.3d 784, 788-89 (9th Cir.1995)). “If a plaintiff satisfies these requirements, ‘the matter should go to trial.’ ” Id. at 973 (quoting Hervey, 65 F.3d at 789).

Littlefair failed to show that Sergeant Gosner deliberately or recklessly made false statements or omissions in his affidavit that were material to the finding of probable cause for the search warrant of Littlefair’s property. As the Supreme Court has noted, “qualified immunity ... provides ample protection to all but the plainly incompetent or those who knowingly violate the law.” Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986). Sergeant Gosner’s conduct does not rise to this level, and therefore he is entitled to qualified immunity.

Furthermore, the district court did not abuse its discretion when it excluded portions of Littlefair’s declaration. Littlefair did not have personal knowledge to offer such evidence under Federal Rule of Civil Procedure 56(e). Even if the district court did abuse its discretion, the error was harmless given that the excluded evidence was cumulative of other evidence. See United States v. Hinkson, 585 F.3d 1247, 1251, 1262 (9th Cir.2009) (en banc). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.