JOHN HERNANDEZ and LESLIE SCALES v. Kevin Broin, individually

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN HERNANDEZ and LESLIE
SCALES,
Plaintiffs - Appellants,
v.
KEVIN BROIN, individually and in his
official capacity as Sheriff / Coroner of the
County of Mendocino and COUNTY OF
MENDOCINO,
Defendants - Appellees.
No. 12-16622
D.C. No. 3:11-cv-02397-SI
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Susan Illston, Senior District Judge, Presiding
Submitted July 9, 2014**
San Francisco, California
Before: FERNANDEZ, N.R. SMITH, and CHRISTEN, Circuit Judges.
FILED
JUL 16 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

-- 1 of 4 --

Plaintiffs allege that Kevin Broin, the Mendocino County sheriff/coroner,
denied them access to the courts by covering up the cause of their son’s death. The
district court granted Broin’s motion for summary judgment, concluding plaintiffs
did not show a genuine issue of fact as to whether Broin hid key facts, engaged in a
cover-up, or otherwise denied plaintiffs access to the courts. We have jurisdiction
under 28 U.S.C. § 1291 and affirm.1
A district court’s order granting summary judgment is reviewed de novo to
“determine whether, viewing the evidence in the light most favorable to the
nonmoving party, there are any genuine issues of material fact and whether the
district court correctly applied the relevant substantive law.” Cameron v. Craig,
713 F.3d 1012, 1018 (9th Cir. 2013) (quoting Lopez v. Smith, 203 F.3d 1122, 1131
(9th Cir. 2000) (en banc)).
“The Supreme Court held long ago that the right of access to the courts is a
fundamental right protected by the Constitution.” Delew v. Wagner, 143 F.3d
1219, 1222 (9th Cir. 1998) (citing Chambers v. Baltimore & Ohio R.R. Co., 207
U.S. 142, 148 (1907)). To prevail on their claim, plaintiffs had to “demonstrate
that the [alleged] cover-up violated their right of access to the courts by rendering
1 The parties are familiar with the facts of the case, so we do not recite
them here.
2

-- 2 of 4 --

‘any available state court remedy ineffective.’” Id. at 1223 (quoting Swekel v. City
of River Rouge, 119 F.3d 1259, 1264 (6th Cir. 1997)).
Plaintiffs did not raise a genuine issue of fact about whether Broin’s actions
or inaction denied them access to the courts. Plaintiffs suspected their son had
been poisoned shortly after he died. They collected water and vomit samples and
knew about Remco’s operations in the local area within a month after the death.
Even if Broin failed to obtain and test samples for toxins, his handling of the
investigation did not prevent plaintiffs from obtaining and testing their own
samples.
Plaintiffs’ allegation that Broin destroyed evidence in order to further a
cover-up is unsupported. The record established the tissue specimens were kept
for a year and destroyed by order of a deputy coroner during a routine purge. The
water samples appear to have been destroyed in a similar manner. Even if Broin
should have prevented their destruction, plaintiffs had their own water samples and
had an opportunity to do their own testing. Plaintiffs were not prevented from
filing their tort claim while the sheriff’s department conducted its investigation.
They received the preliminary autopsy report about a week after their son’s death.
Plaintiffs did not raise a genuine issue of fact about whether they relied on the
sheriff’s investigation, as evidenced by their refusal to entrust Broin with a vomit
3

-- 3 of 4 --

sample. We agree with the district court that the evidence showed plaintiffs
formed a theory regarding the cause of their son’s death early on. Plaintiffs did not
raise a genuine issue of fact about whether Broin prevented them from filing a
timely tort claim.
AFFIRMED.
4

-- 4 of 4 --