60 F.3d 833

MEMORANDUM**

Michael C. Marino appeals pro se the district court’s summary judgment in favor of Fred Meyer, Inc. (“Meyer”) in his employment discrimination action alleging gender discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e et seq. Marino contends the district court erred by: (1) finding that he failed to raise a genuine issue of material fact as to discriminatory treatment or sexual harassment; (2) failing to notify him of the requirements for responding to a motion for summary judgment; and (3) denying his motions to compel discovery and for amendment of the findings and a new trial.1 We have jurisdiction pursuant to 28 U.S.C. Sec. 1291, and we affirm.

Retail store employer Meyer hired Marino in March 1990. Elizabeth Iddings was hired by Meyer in June 1990. Both employees worked as checkers in the same store, and occasionally socialized after work hours. In March or April 1991, Marino threatened to commit suicide because he thought or perceived that Iddings did not want to maintain a friendship with him. On April 11, 1991, while on store premises, Marino deliberately slashed his arm with a knife and showed his injury to Iddings. As a result of this incident, Meyer management staff arranged the work schedules of both employees so that they would have less on-the-job contact.

Marino contends that Meyer’s alteration of the work schedule subjected him to disparate treatment because of his gender. Specifically, Marino claims that after April 1991, he was scheduled for fewer hours than Iddings, and given less preferable break times and work sites. Marino further contends that he was subjected to a hostile work environment when Meyer allowed Iddings and other employees to discuss Marino and his conduct.

Marino’s union declined to pursue his grievance regarding Meyer’s scheduling decisions. After investigating his charges of gender discrimination, the Oregon Bureau of Labor & Industries and the Equal Employment Opportunity Commission found no evidence of discrimination by Meyer. Marino filed this claim in district court on December 16, 1992.

We review de novo the district court’s grant of summary judgment. Hopkins v. Andaya, 958 F.2d 881, 884 (9th Cir. 1992), cert. denied, 115 S. Ct. 1097 (1995).

Marino contends that Meyer discriminated against him in the terms and conditions of his employment because of his sex. To establish a prima facie case of intentional discrimination, a plaintiff has the burden of providing evidence “which give[s] rise to an inference of unlawful discrimination.” Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-53 (1981).

Marino failed to show that Meyer’s adjustment of work schedules and work sites resulted in any disparate treatment.2 Moreover, none of the evidence in the record raises an inference that Meyer intended to discriminate against Marino on account of his gender. See Foster v. Arcata Assocs., 772 F.2d 1453, 1459 (9th Cir. 1985) (holding that plaintiff must identify actions that give rise to inference of disparate treatment), cert. denied, 475 U.S. 1048 (1986), overruled on other grounds by, Kennedy v. Allied Mut. Ins. Co., 952 F.2d 262 (9th Cir. 1991). On the contrary, the record reflects that Meyer’s actions were taken in response to Marino’s self-inflicted injury and Iddings’s complaints about Marino’s behavior. The district court correctly found that Marino failed to present a prima facie claim of discriminatory treatment. See Burdine, 460 U.S. at 253-54.

Marino contends that he was harassed and subjected to a hostile work environment on account of his gender. Specifically, Marino contends that employees and management created a hostile work environment by discussing Marino’s romantic interest in Iddings and Iddings’s allegations that Marino harassed her.

In order to show sexual harassment under a hostile work environment, Marino must demonstrate that he was subjected to “severe or pervasive and unwelcome verbal or physical harassment because of [his] membership in a protected class.” Sischo-Nownejad v. Merced Community College Dist., 934 F.2d 1104, 1109 (9th Cir. 1991) (citing Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 66-67 (1986)).

Here, the record fails to reflect behavior by co-workers or management that was severe, pervasive, or directed towards Marino because he is male. Accordingly, the district court correctly found that Marino failed to present a claim of sexual harassment. See Sischo-Nownejad, 934 F.2d at 1109.

Marino contends that the district court erred by granting summary judgment in favor of Meyer without first advising him of the requirements of Rule 56. Because, however, no special assistance is required for a nonprisoner pro se party such as Marino, see Jacobsen v. Filler, 790 F.2d 1362, 1364 (9th Cir. 1986), the district court did not err by granting summary judgment for Meyer without advising Marino of the requirements of Rule 56.

Marino contends that the district court improperly granted summary judgment for Meyer because the court did not allow for adequate discovery.

Discovery rulings are reviewed for abuse of discretion. Klingele, 849 F.2d at 412. The burden is on the nonmoving party to show what material facts would be discovered that would preclude summary judgment. Id. (citing Hall v. Hawaii, 791 F.2d 759, 761 (9th Cir. 1986)).

Marino contends that further discovery would show that he was never properly charged with sexually harassing Iddings. Because the existence of a formal complaint by Iddings regarding Marino’s behavior is immaterial to this case, the district court did not err by denying his request. See Taylor v. Sentry Life Ins. Co., 729 F.2d 652, 656 (9th Cir. 1984) (noting that summary judgment is appropriate when discovery requests could not produce evidence that would raise genuine issues of material fact).3

On appeal, Meyer requests sanctions against Marino for filing a frivolous appeal. We have discretion to impose damages against litigants, even pro se, as a sanction for bringing a frivolous appeal. Fed. R. App. P. 38; 28 U.S.C. Sec. 1912; Wilcox v. Commissioner, 848 F.2d 1007, 1008 (9th Cir. 1988) ($1,500 sanction imposed on pro se litigant for bringing a frivolous appeal). An appeal is frivolous if the results are obvious, or the arguments of error are wholly without merit. Wilcox, 848 F.2d at 1009 (citation omitted). Marino’s contentions on appeal are wholly without merit. Accordingly, we impose $1,500 damages as a sanction.

AFFIRMED.

MEMORANDUM**

Idaho state prisoner Timothy J. Gawron appeals pro se the district court’s summary judgment and dismissal of his 42 U.S.C. Sec. 1983 action against Boise Police Officers Peter Ritter and Kurt McAllister. Gawron alleged that Ritter and McAllister violated his Fourth Amendment rights when (1) Ritter detained and searched him during a traffic stop of a vehicle in which he was a passenger and (2) McAllister illegally searched his residence and seized property pursuant to an allegedly defective search warrant. As a result, Gawron was charged and pled guilty to burglary and grand theft.

We review de novo a district court’s summary judgment. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir.1989), cert. denied, 496 U.S. 937 (1990). We have jurisdiction pursuant to 28 U.S.C. Sec. 1291, and we affirm.

A section 1983 action cause of action for damages attributable to an unconstitutional conviction does not accrue until the conviction or sentence has been invalidated. Heck v. Humphrey, 114 S.Ct. 2364, 2373 (1994). In Heck, however, the Supreme Court stated that because of doctrines like independent source, inevitable discovery, and harmless error, a successful section 1983 action for an unreasonable search “would not necessarily imply that the plaintiff’s conviction was unlawful.” Heck, 114 S.Ct. at 2372-73 n. 7; see also, Trimble v. City of Santa Rosa, 49 F.3d 583, 585 (9th Cir.1995) (per curiam). We therefore assume for the purposes of this decision that Gawron’s claim that defendants violated his Fourth Amendment rights does not impact on the validity of his conviction and that his Fourth Amendment claim for damages has accrued. See Heck, 114 S.Ct. at 2372-73.

Gawron contends that the district court erred by finding that Ritter was entitled to qualified immunity. Gawron claims that Ritter seized, searched, and arrested him without probable cause and that his conduct could not be considered reasonably lawful. This contention lacks merit.

To determine whether an official is entitled to qualified immunity, a court must determine (1) whether the right allegedly violated was “clearly established” at the time of the alleged violation, and (2) whether, in light of that law, a reasonable official could have believed his conduct to be lawful. Act Up!/Portland v. Bagley, 988 F.2d 868, 871 (9th Cir.1993).

In Idaho, the commission of a traffic violation in the presence of police officers provides a valid reason for stopping the vehicle. See State v. Wight, 790 P.2d 385, 388 (Idaho Ct.App.1990). It is uncontested that Gawron was a passenger in a vehicle driven by Kevin Kuck and that Ritter and his partner, Larry Moore, observed Kuck’s failure to activate the vehicle’s right turn signal when making a turn. Ritter and Moore therefore had probable cause to stop Kuck’s vehicle due to this traffic violation. Since the vehicle was lawfully stopped, Ritter’s initial detention of Gawron, the passenger of the vehicle, was also proper. See United States v. Thomas, 863 F.2d 622, 628 (9th Cir.1988) (“A valid stop can include the momentary restriction on a person’s freedom of movement in order to maintain the status quo while making an initial inquiry.”).

Gawron also claims that Ritter’s subsequent search of his person was unlawful. We disagree.

After being pulled over Kuck failed to produce a driver’s license or vehicle registration information. He also misidentified himself to Moore stating that his name was “Dustin Cook.” From his prior experience, Ritter knew that Kuck, a known burglar, had misidentified himself. Ritter therefore believed that it was appropriate for him to further investigate the situation. Ritter approached the vehicle and shined his flashlight through the windows. In plain view, Ritter saw that inside the vehicle were items, such as a video cassette recorder and a fur coat, that were the types of personal property a burglar could easily “fence.”

Based on the fact that there were recent burglaries in the Boise area in which Gawron and Kuck were suspects and also because Kuck had intentionally misidentified himself, Ritter requested that Gawron exit the vehicle and subject himself to a pat-down search. During the pat-down search, Ritter discovered a square shaped object that felt like a weapon. The object turned out to be a police scanner. Subsequently, Ritter discovered a screwdriver, gloves and flashlight on Gawron. Gawron was then placed under arrest for possession of burglary tools. A post-arrest search of Gawron’s person and the vehicle revealed further evidence that Gawron was linked to several burglaries that were known by the two officers to be taking place throughout the Boise area.

Ritter’s search of Gawron was proper because it is lawful for a police officer with a reasonable fear for his safety to search for objects which may be used as weapons. See Thomas, 863 F.2d at 628 (pat-down search justified when reasonably prudent person would believe that his safety was in danger). Accordingly, Ritter did not violate Gawron’s Fourth Amendment rights. Even if Gawron’s Fourth Amendment rights were violated, however, based on the record, the district court did not err by determining that Ritter was entitled to qualified immunity because a reasonable officer could have believed that probable cause existed to detain, search, and arrest Gawron. See Act Up!/ Portland, 988 F.2d at 871-73.

Gawron also contends that the district court erred by holding that McAllister was entitled to qualified immunity. Gawron claims that the second search warrant secured by McAllister was invalid because it was not supported by probable cause, lacked sufficient particularity, and was founded on intentionally false information. This contention lacks merit.

Gawron claims that McAllister’s affidavit in support of the warrant contains false accusations. We disagree. Gawron has failed to set forth any proof that rebuts the presumption that the contents of the affidavit are valid. See Forster v. County of Santa Barbara, 896 F.2d 1146, 1148 (9th Cir.1990) (citation omitted).

Further, McAllister reasonably believed his conduct was lawful. In securing the second search warrant, he consulted with a prosecuting attorney who determined that probable cause existed. He next consulted with a magistrate who reviewed the affidavits in support of the warrant. The magistrate also determined that probable cause existed and issued the search warrant. Such reliance by McAllister on the prosecuting attorney and the magistrate show that his actions were objectively reasonable. See e.g., United States v. Kurt, 986 F.2d 309, 311 (9th Cir.1993).

Thus, even if the second search warrant was defective, McAllister still had a reasonable basis for believing that he secured the second search warrant in a lawful manner. See id. The district court did not err in holding that he was entitled to qualified immunity. See Act Up!/Portland, 988 F.2d at 871.

B. Motion to File Third Amended Complaint.

Gawron also contends that the district court erred by denying his motion to file a third amended complaint. This contention lacks merit.

We review the denial of a motion for leave to amend a complaint for abuse of discretion. National Abortions Fed’n v. Operation Rescue, 8 F.3d 680, 681 (9th Cir.1993). Leave to amend may be denied if amendment would be futile. See DCD Programs, Ltd. v. Leighton, 833 F.2d 183, 186 (9th Cir.1987).

Here, Gawron sought to amend his complaint by adding private individuals as defendants. These proposed defendants were the persons who reported the stolen property to the Boise Police Department and who claimed their property after it had been recovered from Gawron. Here, amendment of Gawron’s complaint to add these defendants would have been futile because the named individuals did not act under color of state law. See Karim-Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 624 (9th Cir.1988).

AFFIRMED.