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* This matter was determined to be suitable for decision

without oral argument. L.R. 78-230(h).

** The caption is amended to reflect the dismissal of John

Doe, who is dismissed because Plaintiff failed to file an Amended

Complaint identifying John Doe within 60 days of the Status

(Pretrial Scheduling) Order filed June 21, 2004. (See Status

Order at 2.)

1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

BARBARA DIANE WARD, )

a.k.a. DIANE WARD, )

) No. CIV-S-04-0448 GEB (GGH)

Plaintiff, )

)

v. )

) 

SUTTER UNION HIGH SCHOOL ) ORDER*

DISTRICT, RYAN ROBISON, )

individually and in His )

Official Capacity; LORI )

TEXEIRA, Individually and )

in Her Official Capacity; )

and SUTTER COUNTY, DAVID )

McFARLAND, Individually and )

in His Official Capacity,** )

)

Defendants. )

)

Pending is Defendant David McFarland (a deputy sheriff) and

Defendant Sutter County’s (McFarland’s employer) joint motion for

summary judgment on Plaintiff’s federal and state claims. The essence

of Plaintiff’s lawsuit alleges these Defendants wrongfully 

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1 “The standards applicable to motions for summary

judgment are well known, see, e.g., Rodgers v. County of Yolo,

889 F. Supp. 1284 (E.D. Cal. 1995), and need not be repeated

here.” Reitter v. City of Sacramento, 87 F. Supp. 2d 1040, 1042

(E.D. Cal. 2000).

2

investigated, arrested, and imprisoned her for thievery crimes

suspected of having occurred at Sutter Union High School. Ryan

Robison (Plaintiff’s supervisor who is employed as a

Principal/Superintendent), Lori Texeira (Plaintiff’s co-worker), and

Sutter Union High School District (Plaintiff’s employer) separately

filed motions for summary judgment in this action, but these

Defendants “authorized a request that their pending motions for

summary judgment be removed from this Court’s calendar” because

“Plaintiff has reached a settlement with [them].” (Pl.’s Not. of

Settlement at 1-2.) In light of these parties’ settlement, these

Defendants’ motions are deemed withdrawn.

Discussion1

I. Federal Claims

A. McFarland

Plaintiff claims that McFarland violated her Fourth

Amendment right to be free from unreasonable searches when McFarland

installed a covert video camera to surveil a student body fund deposit

pouch. (Pl.’s Opp’n to Defs. Sutter County and McFarland’s Mot. for

Summ. J. (“Pl.’s Opp’n”) at xxxix-xl.) McFarland installed the

challenged surveillance video camera to aid him in his investigation

of the possible misappropriation of money from the student body fund

deposit pouch. This pouch was kept in the third drawer of a file

cabinet, located in a storage room adjacent to the administrative

office where Plaintiff, Texeira, Robison, and Pat Hill (another

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3

District employee) worked. (Id. ¶ 6.) That file cabinet was

accessible to each of these individuals, and teachers regularly

accessed the storage room because it housed other cabinets containing

materials the teachers needed. (Robison Decl. ¶¶ 15-16; Robison Depo.

at 108:6-20; Texeira Depo. at 163:3-18; 167:17-20; 186:3-21; Ward

Depo. at 42:9-21.) The door to the storage room remained open during

business hours. (Ward Depo. at 41:26-42:8.)

Plaintiff also claims that McFarland violated her right to

privacy under the Fourteenth Amendment when he obtained information

from school officials related to her wages. (Id. at xl.) 

Furthermore, Plaintiff alleges that McFarland violated her Fourth

Amendment right to be free from unreasonable seizures when he arrested

her for embezzlement, grand larceny, and burglary. (Id. at xxxivxxxvii.) Finally, Plaintiff alleges that McFarland violated her right

to equal protection by maliciously prosecuting her. (2d Am. Compl.

¶¶ 34-39.)

1. Invasion of Privacy

a. Surveillance Video

Whether Plaintiff has an actionable privacy interest which

was violated by McFarland’s use of the video surveillance is analyzed

under the Fourth Amendment’s reasonable expectation of privacy

standard. Armendariz v. Penman, 75 F.3d 1311, 1319 (9th Cir. 1996)

(indicating that when the Fourth Amendment provides explicit

limitations on the type of government conduct challenged by plaintiff,

that Amendment should guide the analysis of plaintiff’s claim). “A

Fourth Amendment search occurs when the government violates a

subjective expectation of privacy that society recognizes as

reasonable.” Kyllo v. United States, 533 U.S. 27, 33, (2001).

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2 Plaintiff argues that she had a reasonable expectation

of privacy in the storage room because she used the storage room

to adjust clothing, including undergarments, and students used

the storage room to administer insulin injections. (Texeira

Depo. at 167:20-23; Ward Depo. at 42:9-21.) However, these

activities did not convert this area into a place where

Plaintiff’s subjective expectation of privacy is recognized as

reasonable. See O’Connor v. Ortega, 480 U.S. 709, 716 (1987)

(plurality opinion).

3 Robison did not disclose Plaintiff’s precise salary;

rather, he indicated that Plaintiff’s salary was the lowest on

the staff. (McFarland Decl. ¶ 5.)

4

“[T]he Fourth Amendment forbids warrantless videotaping of a

private office.” United States v. Gonzalez, 328 F.3d 543, 548 (9th

Cir. 2003). But Plaintiff had no private work space in the storage

room since neither the surveilled storage room nor the file cabinet

holding the student body fund deposit pouch was under the exclusive

control of Plaintiff. (Robison Decl. ¶ 16); Gonzalez, 328 F.3d at

548. Even though Plaintiff contends that she subjectively believed

what occurred in the storage room was private, Plaintiff’s subjective

belief was not objectively reasonable given the open nature of the

storage room to other school officials.2 Kyllo, 533 U.S. at 33;

O’Connor, 480 U.S. at 717-18 (plurality opinion). Therefore,

McFarland’s videotaping of activity in the storage room did not invade

Plaintiff’s reasonable expectation of privacy under the Fourth

Amendment.

b. Personal Information

McFarland also seeks summary judgment on Plaintiff’s

Fourteenth Amendment claim that he violated her right to informational

privacy by obtaining from Robison information about her salary and

wage garnishments.3 (Pl.’s Opp’n at xxxix-xl.) One of the elements

Plaintiff must establish to prevail on this claim is that McFarland

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4 Embezzlement is the fraudulent appropriation of

property by a person to whom it is entrusted. Cal. Penal Code 

§ 503.

5 Grand theft is committed where money is taken by an

employee from his or her employer that aggregates four hundred

dollars ($400) or more in any twelve consecutive month period. 

Cal. Penal Code § 487(b)(3).

6 Every person who enters any room or other building with

intent to commit grand or petit larceny or any felony is guilty

of burglary. Cal. Penal Code § 459.

5

obtained constitutionally protected information. See Crawford v.

United States Trustee, 194 F.3d 954, 958 (9th Cir. 1999) (indicating

that informational privacy concerns unique information that is not

generally made public). But Plaintiff has not shown that she has

recognized privacy interests in the information McFarland obtained. 

General salary ranges for California public employees are available

for public review, and wage garnishments are the result of a public

procedure. Cal. Gov’t Code § 6253(a); see generally Cal. Civ. Proc.

Code § 706.026(b). Thus, McFarland is granted summary judgment on

this claim.

2. False Arrest

McFarland seeks summary judgment on Plaintiff’s false arrest

claim, contending he had probable cause to arrest Plaintiff for

embezzlement,4 grand theft,5 and burglary.6 Arrests without probable

cause give rise to liability under 42 U.S.C. § 1983. McKenzie v.

Lamb, 738 F.2d 1005, 1007 (9th Cir. 1984) (citing Gilker v. Baker, 576

F.2d 245 (9th Cir. 1978)). Probable cause exists when, “under the

totality of the circumstances known to the arresting officers, a

prudent person would have concluded that there was a fair probability

that [the] suspect had committed a crime.” Peng v. Hu, 335 F.3d 970,

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7 Plaintiff argues that there are genuine issues of

material fact as to the facts listed below because (1)

McFarland’s expert testified that McFarland did not have direct

or circumstantial evidence to support probable cause (Zwickey

Depo. at 101:7-24), (2) McFarland’s police report is silent on

whether Plaintiff placed money into the student body fund deposit

pouch (Mancl Decl. ¶ 25, Exh. 24), (3) there is an alternative

post hoc explanation for what happened to the money missing from

the student body fund deposit pouch (McFarland Depo. at 185:9-

20), and (4) the Sutter County Sheriff testified that he could

not form an opinion as to probable caused based on a review of a

portion of the information presented to McFarland (Denney Depo.

at 99:14-100:19). Plaintiff’s first argument fails because she

mischaracterizes Zwickey’s deposition testimony. Plaintiff’s

remaining arguments fail to create a genuine issue of material

fact as to whether McFarland reasonably concluded that he had

probable cause to arrest Plaintiff based on the circumstances of

which he was aware at the time of the arrest.

6

976 (9th Cir. 2003) (citation omitted); see Maryland v. Pringle, 540

U.S. 366, 371 (2003) (holding that probable cause is determined based

on the facts available to the officer at the time of the arrest).

McFarland points to the information he had, which he

contends supports his position that he had probable cause to arrest

Plaintiff. Video surveillance of the file cabinet holding the

investigated student body fund deposit pouch was conducted from May 18

to May 28, 2003. (McFarland Decl. ¶¶ 9, 18.) On May 29, 2003,

McFarland and another detective interviewed Hill, Texeira, and

Plaintiff (sequentially) in Robison’s office regarding the money

missing from the student body fund deposit pouch. (McFarland Decl. ¶¶

21, 22, 23; Zembiec Decl. ¶ 10.) McFarland formally arrested

Plaintiff at the conclusion of her interview. (McFarland Decl. ¶ 25.)

At the time McFarland arrested Plaintiff, McFarland had

gathered the following information:7

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8 While Plaintiff disputes the accuracy of Texeira’s

$20,000 figure, it is undisputed that Texeira told McFarland that

approximately $20,000 was stolen from the investigated student

body funds.

9 Plaintiff argues that this fact is disputed because

McFarland didn’t know what happened to the money she took from

the student body fund deposit pouch after she left the storage

room. This argument, however, does not controvert McFarland’s

declaration that he observed Plaintiff remove money from the

student body fund deposit pouch, but did not observe her

returning money to the pouch.

10 Plaintiff declares that she never stole money from the

District or the student body fund deposit pouch. (Ward Decl. ¶¶

1-2.) But this declaration does not undermine the circumstances

(continued...)

7

(1) Robison reported $10,000 and Texeira reported that as 

much as $20,000 had been stolen from the student body funds during the

school year (McFarland Decl. ¶ 40(a));8

(2) The surveillance camera captured Plaintiff taking money

out of the student body fund deposit pouch kept in the third drawer of

the file cabinet in the storage room on May 19 and May 20, 2003, and

Plaintiff was not observed putting money back inside the pouch on

either day (Id. ¶¶ 11, 13, 19, 40(c),(h); McFarland Depo. at 363:18-

365:2, 365:22-366:7, 369:22-372:5, 374:23-375:7);9

(3) Plaintiff was the only person seen on the videotape

taking money out of the student body fund deposit pouch kept in the

surveilled drawer without putting money into the pouch (McFarland

Decl. ¶ 40(i); Zembiec Decl. ¶ 9; McFarland Depo. at 358:10-359:12;

380:6-381:20); and

(4) There was money missing from the student body fund

deposit pouch on May 19 and May 20, 2003 - the days that Plaintiff was

seen taking funds out of the pouch without placing money back into the

pouch (McFarland Decl. ¶¶ 10-13, 40(d),(h)).10

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10(...continued)

on which McFarland based his probable cause to arrest Plaintiff. 

Plaintiff also argues that McFarland (1) did not consider other

suspects, (2) failed to conduct a thorough investigation, and (3)

was unaware of facts implicating Texeira. (Pl.’s Opp’n at xxx.) 

These arguments do not negate the probable cause McFarland had to

arrest Plaintiff. Further, Plaintiff asserts that McFarland now

concedes that he did not have probable cause at the time of the

arrest (Pl.’s Opp’n Sep. Stmt. ¶ 205), but this assertion

mischaracterizes McFarland’s deposition testimony and McFarland’s

objection to this mischaracterization is sustained.

11 Plaintiff also argues that her constitutional rights

were violated because McFarland did not inform Plaintiff of her

Miranda rights when he interviewed her in Robison’s office. This

argument fails because it is not based on an actionable claim

under § 1983. Chavez v. Martinez, 538 U.S. 760, 771-772, 789-790

(2003).

8

Based upon “the totality of the circumstances known to

[McFarland], a prudent person could have concluded that there was a

fair probability that [Plaintiff] had committed [embezzlement, grand

theft, and burglary].” Peng, 335 F.3d at 976 (citation omitted). 

Since McFarland had probable cause to arrest Plaintiff, his summary

judgment motion is granted on this claim.11

3. False Imprisonment

McFarland asserts that Plaintiff’s false imprisonment claim

is based exclusively on her arrest. (McFarland’s Sep. Stmt. ¶ 52.) 

This has not been controverted by Plaintiff. (Pl.’s Resp. to

McFarland’s Sep. Stmt. ¶ 52.) Therefore, summary judgment is entered

on Plaintiff’s false imprisonment claim.

4. Malicious Prosecution

McFarland also seeks summary judgment on Plaintiff’s

malicious prosecution claim. One of the elements Plaintiff must show

to prevail on this claim is that a criminal prosecution was initiated

against her. Usher v. City of Los Angeles, 828 F.2d 556, 562 (9th

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12 Further, the recent settlement reached by Plaintiff,

Robison, Texeira, and the District gives rise to a state

contract. See Jessup v. Luther, 277 F.3d 926, 929 (7th Cir.

2002) (citing Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S.

375, 378-382 (1994), and stating that “[a] settlement is just

another contract to be enforced in the usual way, that is, by a

fresh suit.”). 

9

Cir. 1987) (citing Singleton v. Perry, 45 Cal. 2d 489, 494 (1955)). 

McFarland submits uncontroverted evidence that no criminal charges

were filed against Plaintiff. (Schroeder Decl. ¶ 2; Exh. A.) 

Therefore, McFarland is granted summary judgment on this claim. 

B. Sutter County

Since McFarland has prevailed on Plaintiff’s federal claims,

Plaintiff’s federal claims against Sutter County “[are] moot because

[Plaintiff] suffered no constitutional deprivations.” Saman v.

Robins, 173 F.3d 1150, 1157 (9th Cir. 1999). Therefore, summary

judgment on Plaintiff’s federal claims is entered in favor of Sutter

County.

II. Remaining State Law Claims

Since all of Plaintiff’s federal claims have been decided,

it is determined whether supplemental jurisdiction should continue

being exercised over Plaintiff’s state law claims. 28 U.S.C.

§ 1367(c)(3). Plaintiff’s remaining state claims against McFarland

and Sutter County are for defamation, intentional infliction of

emotional distress, and negligence.12 (2d Am. Compl. ¶¶ 40-57.)

Exercise of supplemental jurisdiction is discretionary. 

Mendoza v. Zirkel Fruit Co., 301 F.3d 1163, 1174 (9th Cir. 2002). 

“[W]hen deciding whether to exercise supplemental jurisdiction, a

federal court should consider and weigh in each case, and at every

stage of litigation, the values of judicial economy, convenience, 

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10

fairness, and comity.” City of Chicago v. Int’l Coll. of Surgeons,

522 U.S. 156, 173 (1997) (internal citations omitted).

[I]n the usual case in which all federal-law

claims are eliminated before trial, the

balance of factors to be considered under the

pendent jurisdiction doctrine . . . will

point toward declining to exercise

jurisdiction over the remaining state-law

claims.

Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988);

see Bryant v. Adventist Health Sys./West, 289 F.3d 1162, 1169 

(9th Cir. 2002) (applying Carnegie-Mellon to supplemental

jurisdiction).

Since all federal claims have been resolved, this Court

declines to continue exercising supplemental jurisdiction over

Plaintiff’s state law claims “as a matter of comity and to . . .

procur[e] for [the parties] a surer-footed reading of applicable

[California] law.” United Mine Workers of Am. v. Gibbs, 383 U.S.

715, 726 (1966). Accordingly, Plaintiff’s remaining state law

claims are dismissed as of the date on which this order is filed.

IT IS SO ORDERED.

Dated: July 7, 2005

/s/ Garland E. Burrell, Jr.

GARLAND E. BURRELL, JR.

United States District Judge

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