Merle Ferguson v. United States

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NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT FEB 5 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS MERLE RALPH FERGUSON, No. 18-56296

Plaintiff-Appellant, D.C. No. 3:15-cv-01253-JM-MDD v.

UNITED STATES OF AMERICA; et al., MEMORANDUM*

Defendants-Appellees.

Appeal from the United States District Court for the Southern District of California Jeffrey T. Miller, District Judge, Presiding

Submitted February 3, 2020** Pasadena, California

Before: IKUTA and LEE, Circuit Judges, and MARBLEY,*** District Judge.

Merle Ferguson appeals the district court’s order granting the government’s motion for summary judgment. We affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Algenon L. Marbley, Chief United States District Judge for the Southern District of Ohio, sitting by designation.

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Ferguson failed to establish that Deputy U.S. Marshal Thomas Perosky had a duty of inquiry as to the geographic scope of an arrest warrant. As a general rule, a marshal has no duty “to question the validity” of a court order. McQuade v. United States, 839 F.2d 640, 643 (9th Cir. 1988). Slaughter v. Legal Process & Courier Service, on which Ferguson relies, does not establish a duty of inquiry; rather, it held that there was a genuine issue of material fact as to whether a process server who improperly served a party and then signed a false affidavit of service breached a duty he owed to the party served. See 162 Cal. App. 3d 1236, 1249 (1984). Nor do Ferguson’s communications to Perosky create a duty of inquiry. The “primary role and mission” of the U.S. Marshals Service is to execute judicial orders, 28 U.S.C. § 566(a), and we have indicated that a marshal has no duty to cease executing a warrant merely because a private person claims that the warrant cannot be lawfully executed, see McQuade, 839 F.2d at 643. Because Ferguson has not carried his burden of showing that Perosky’s failure to inquire “would be actionable in tort if committed by a private party under analogous circumstances,” Love v. United States, 915 F.2d 1242, 1245 (9th Cir. 1990) (as amended), abrogated on other grounds by DaVinci Aircraft, Inc. v. United States, 926 F.3d *3 1117 (9th Cir. 2019), the government has not waived its sovereign immunity for such an action under the Federal Tort Claims Act, see 28 U.S.C. § 1346(b)(1).1

Further, the FTCA’s discretionary function exception bars this suit. See 28 U.S.C. § 2680(a). No “federal statute, regulation, or policy” requires U.S. Marshals to check a warrant’s geographic scope when told by a third party that the warrant cannot be lawfully executed where the suspect is located. Berkovitz v. United States, 486 U.S. 531, 536 (1988). And because a decision not to inquire as to the warrant’s scope is “susceptible to policy analysis,” United States v. Gaubert, 499 U.S. 315, 325 (1991), it is the kind of decision “the discretionary function exception was designed to shield,” Berkovitz, 486 U.S. at 536.

AFFIRMED.

1 The district court’s preliminary determination that the government owed Ferguson a duty did not bind the district court at the summary judgment stage. See Fed. R. Civ. P. 54(b).