892 654 FEDERAL REPORTER, 3d SERIES
separately examine the purpose Defen-
dants had for obtaining the information,
separate from the ultimate use of the in-
formation. But the portion of the statute
that expresses the permissible purposes
explicitly does so in terms of the use of
the information. That is what should be
considered in determining whether the ac-
quisition of the information is permitted
under the statute.
[5] There is also no problem with De-
fendants obtaining the personal informa-
tion for potential future use, even if they
may never use it. The DPPA does not
contain a temporal requirement for when
the information obtained must be used for
the permitted purpose. Nor is there a
requirement that once the information is
obtained for a permitted purpose that it
actually be used at all. The DPPA only
requires that Defendants obtained the in-
formation for a permitted purpose. Plain-
tiffs have not alleged that Defendants have
used the information for a purpose not
permitted, nor have they disputed Defen-
dants statements that they only access or
use information about a specific individual
when they have a permitted purpose.
Two other circuits have addressed simi-
lar claims, the Fifth and Sixth Circuits,
and both have rejected them. See Taylor
v. Acxiom Corp., 612 F.3d 325, 340 (5th
Cir.2010), cert. denied U.S. , 131 tion with warrant issued to search sus-
S.Ct. 908, 178 L.Ed.2d 804 (2011) (A per-
son who buys DMV records in bulk does so
for the purpose of making permissible ac-
tual use of information therein under [the
DPPA], even if that person does not actu-
ally use every single item of information
therein.); Roth v. Guzman, 650 F.3d 603,
61417 (6th Cir.2011) (citing Taylor ). We
agree.
III. Conclusion
We conclude that Plaintiffs have failed
to allege that Defendants had an improper
purpose under the DPPA for obtaining
their personal information. The com-
plaints were properly dismissed for failure
to state a claim.
AFFIRMED.
,
Bruce DOUGHERTY and Jonathan
Dougherty, Plaintiffs
Appellants,
v.
CITY OF COVINA; Robert
Bobkiewicz; Kim Raney,
DefendantsAppellees.
No. 0956395.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted June 9, 2011.
Filed Aug. 16, 2011.
Background: Suspected child molester
brought action against city, police officer,
and chief of police, alleging violation of his
Fourth Amendment right to be free from
unreasonable search and seizure in connec-
pects home computer and electronic
equipment for child pornography. The
United States District Court for the Cen-
tral District of California, Percy Anderson,
J., dismissed action, and suspect appealed.
Holdings: The Court of Appeals, N.R.
Smith, Circuit Judge, held that:
(1) in a matter of first impression, officers
experience that child molesters pos-
sessed child pornography did not pro-
vide probable cause for warrant;
(2) officer was entitled to qualified immu-
nity; and
 DOUGHERTY v. CITY OF COVINA
Cite as 654 F.3d 892 (9th Cir. 2011)
(3) city had no Monell or supervisory lia-
bility.
Affirmed.
Brewster, Senior District Judge, sitting by
designation, filed an opinion concurring in
the judgment.
1. Federal Courts O776
Dismissal for failure to state a claim is
reviewed by the Court of Appeals de novo.
Fed.Rules Civ.Proc.Rule 12(b)(6), 28
U.S.C.A.
2. Federal Courts O817
Denial of leave to amend complaint is
reviewed by Court of Appeals for an abuse
of discretion.
3. Searches and Seizures O111, 113.1
Sufficient information must be pre-
sented to the magistrate to allow that offi-
cial to determine probable cause for a
search warrant; his action cannot be a
mere ratification of the bare conclusions of
others. U.S.C.A. Const.Amend. 4.
4. Searches and Seizures O113.1
When a supporting affidavit for a
search warrant moves beyond the bare
bones, a totality of the circumstances
test is employed to determine whether
probable cause exists to issue the warrant,
which requires a neutral magistrate to
make a practical, common-sense decision
whether, given all the circumstances set
forth in the affidavit before him, including
the veracity and basis of knowledge of
persons supplying hearsay information,
there is a fair probability that contraband
or evidence of a crime will be found in a
particular place. U.S.C.A. Const.Amend.
4.
See publication Words and Phras-
es for other judicial constructions
and definitions.
5. Searches and Seizures O113.1
Issuing magistrate is free to draw rea-
sonable inferences from the material sup-
893
plied to him by applicants for a search
warrant. U.S.C.A. Const.Amend. 4.
6. Obscenity O7.6
The standards for determining proba-
ble cause for a search warrant apply to a
search for child pornography on a comput-
er. U.S.C.A. Const.Amend. 4.
7. Obscenity O7.6
Neither certainty nor a preponder-
ance of the evidence is required for proba-
ble cause for a search warrant seeking
child pornography on a computer, but
rather a fair probability that the evidence
will be found. U.S.C.A. Const.Amend. 4.
8. Searches and Seizures O200
Magistrates determination of proba-
ble cause for search warrant should be
paid great deference by reviewing court.
U.S.C.A. Const.Amend. 4.
9. Searches and Seizures O191
Although in a particular case it may
not be easy to determine when an affidavit
demonstrates the existence of probable
cause to issue search warrant, resolution of
doubtful or marginal cases in this area
should largely be determined by the pref-
erence to be accorded to warrants.
U.S.C.A. Const.Amend. 4.
10. Obscenity O7.6
Searches and Seizures O200
Although there does not need to be
direct evidence of solicitation of child por-
nography to create probable cause for
search warrant seeking child pornography
on a computer, the reviewing court must
make certain there was a substantial basis
for finding probable cause. U.S.C.A.
Const.Amend. 4.
11. Obscenity O7.6
Police officers statement in support-
ing affidavit, [b]ased upon [his] training
and experience, that child molesters
have in their possession child pornogra-
894 654 FEDERAL REPORTER, 3d SERIES
phy, did not provide probable cause for
warrant to search teachers home comput-
er for child pornography, where affidavit
contained no facts tying teachers suspect-
ed molestation of students at school to
possession of child pornography, affidavit
provided no evidence of receipt of child
pornography or indication that teacher was
interested in viewing child pornography,
and affidavit did not even verify that
teacher owned home computer. U.S.C.A.
Const.Amend. 4.
12. Civil Rights O1376(6)
A police officer is not entitled to quali-
fied immunity from civil rights claim if: (1)
the facts show that the officers conduct
violated a plaintiffs constitutional rights;
and (2) those rights were clearly estab-
lished at the time of the alleged violation.
13. Civil Rights O1376(6)
Police officer was entitled to qualified
immunity from claim alleging that execu-
tion of search warrant seeking child por-
nography on teachers home computer was
unreasonable search and seizure, although
warrant lacked probable cause because it
was based only on allegation that teacher
molested students at school and officers
experience that child molesters possessed
child pornography; law had not been clear-
ly established that allegations of child mo-
lestation at place of work did not provide
probable cause for warrant seeking child
pornography in the absence of explanation
tying together the two crimes. U.S.C.A.
Const.Amend. 4.
14. Civil Rights O1376(4)
Qualified immunity does not shield
municipalities from liability on civil rights
claims.
15. Federal Courts O759.1
Court of Appeals may affirm the dis-
trict courts dismissal for failure to state
claim on any ground supported by the
record. Fed.Rules Civ.Proc.Rule 12(b)(6),
28 U.S.C.A.
16. Civil Rights O1351(1)
A government entity may not be held
liable under 1983, unless a policy, prac-
tice, or custom of the entity can be shown
to be a moving force behind a violation of
constitutional rights. 42 U.S.C.A. 1983.
17. Civil Rights O1352(1)
In order to establish 1983 liability
for governmental entities under Monell, a
plaintiff must prove: (1) that the plaintiff
possessed a constitutional right of which
she was deprived; (2) that the municipality
had a policy; (3) that this policy amounts to
deliberate indifference to the plaintiffs
constitutional right; and (4) that the policy
is the moving force behind the constitu-
tional violation. 42 U.S.C.A. 1983.
18. Civil Rights O1352(1)
Municipalitys failure to train employ-
ees may amount to a policy of deliberate
indifference, as required for municipalitys
liability on 1983 claim, if the need to
train was obvious and the failure to do so
made a violation of constitutional rights
likely. 42 U.S.C.A. 1983.
19. Civil Rights O1352(1)
Municipalitys failure to supervise em-
ployees that is sufficiently inadequate may
amount to a policy of deliberate indiffer-
ence, as required for municipalitys liability
on 1983 claim. 42 U.S.C.A. 1983.
20. Civil Rights O1352(1)
Municipalitys mere negligence in
training or supervision of employees does
not give rise to a Monell claim against
municipality under 1983. 42 U.S.C.A.
1983.
21. Civil Rights O1351(4)
City had no liability on suspects Mo-
nell claim under 1983 in connection with
warrant issued to search suspects home
computer and electronic equipment for
child pornography, absent evidence that
issuance of warrant without probable cause
 DOUGHERTY v. CITY OF COVINA
Cite as 654 F.3d 892 (9th Cir. 2011)
was the result of citys custom or practice
or that citys custom or practice was the
moving force behind search. U.S.C.A.
Const.Amend. 4; 42 U.S.C.A. 1983.
22. Civil Rights O1352(4)
Citys negligent hiring and training of
police officers was insufficient to give rise
to citys supervisory liability on suspects
1983 claim in connection with warrant,
issued without probable cause, to search
suspects home computer and electronic
equipment for child pornography.
U.S.C.A. Const.Amend. 4; 42 U.S.C.A.
1983.
23. Federal Civil Procedure O1838
If a complaint is dismissed for failure
to state a claim upon which relief can be
granted, leave to amend may be denied,
even if prior to a responsive pleading, if
amendment of the complaint would be fu-
tile. Fed.Rules Civ.Proc.Rule 12(b)(6), 28
U.S.C.A.
Danielle L. Casselman and Gary S. Cas-
selman (argued), Law Offices of Gary S.
Casselman, Los Angeles, CA, for the plain-
tiff-appellant.
Mary A. Pendergrass, Christopher M.
Pisano (argued), and George Roscoe Trin-
dle, III, Best Best & Krieger, Los Ange-
les, CA, for the defendants-appellees.
Appeal from the United States District
Court for the Central District of Califor-
nia, Percy Anderson, District Judge, Pre-
siding. D.C. No. 2:08cv07114PACT.
* The Honorable Rudi M. Brewster, Senior Dis-
trict Judge for the U.S. District Court for
Southern California, San Diego, sitting by
designation.
1. Both Bruce Dougherty and his son, Jona-
than, appealed the district courts ruling, but
Jonathan abandoned his appeal. See infra
Section V. Consequently, for simplicity, all
895
Before: BETTY B. FLETCHER and
N. RANDY SMITH, Circuit Judges, and
RUDI M. BREWSTER, District Judge.*
Opinion by Judge N.R. SMITH;
Concurrence by Judge BREWSTER.
OPINION
N.R. SMITH, Circuit Judge:
Under the totality of the circumstances,
a search warrant issued to search a sus-
pects home computer and electronic
equipment lacks probable cause when (1)
no evidence of possession or attempt to
possess child pornography was submitted
to the issuing magistrate; (2) no evidence
was submitted to the magistrate regarding
computer or electronics use by the sus-
pect; and (3) the only evidence linking the
suspects attempted child molestation to
possession of child pornography is the ex-
perience of the requesting police officer,
with no further explanation. Our circuit,
however, has not previously addressed this
question. Therefore, the officers involved
in the search are entitled to qualified im-
munity.
BACKGROUND
On October 12, 2006, Officer Robert
Bobkiewicz, of the City of Covina Police
Department, and four other police officers
(three from the City of Covina and one
from the City of Glendora) searched Ap-
pellant Bruce Doughertys 1 home pursu-
ant to a warrant issued by a magistrate on
October 11, 2006.2 The search warrant
authorized the officers to search for child
references in this opinion to Dougherty re-
fer only to the father, Bruce Dougherty.
2. For purposes of this Opinion, the facts in
the Complaint are taken as true. We refer-
ence the search warrant affidavit, upon which
the Complaint necessarily relies, for these
facts. See Van Buskirk v. Cable News Net-
work, Inc., 284 F.3d 977, 980 (9th Cir.2002).
896 654 FEDERAL REPORTER, 3d SERIES
pornography on Doughertys computer and
electronic media.
To obtain the search warrant, Officer
Bobkiewicz submitted an affidavit reciting
that he was involved in the investigation of
Doughertys inappropriate touching of one
of his sixth grade students at Royal Oak
Elementary School. The student reported
that Dougherty had lifted her up in front
of the class after she told him that she had
won a cross-country meet. She reported
that Doughertys hands were touching her
breasts when he lifted her up to a level
where he could look at her buttocks. The
student told Bobkiewicz that she had seen
Dougherty look up the skirts and down the
tops of other girls in the class. In inter-
views, other students confirmed the lifting
incident to Bobkiewicz and also reported
that Dougherty looked up the skirts and
down the shirts of girls in the class. Offi-
cer Bobkiewicz also discussed the investi-
gation with the Assistant Superintendent
for the School District, Gloria Cortez.
Cortez told Officer Bobkiewicz that she
had conducted an investigation after the
incident with the student described above.
Her investigation turned up multiple re-
ports of Dougherty touching girls backs
and appearing to search for bra straps
with his hands (this information was cor-
roborated by the former vice-principal at
Royal Oak). Cortezs investigation also
turned up a 2003 report of a student, who
said that Dougherty pulled her shirt down
to her waist while they were alone in the
classroom. The investigation of that inci-
dent was not pursued, after it was deter-
mined the student made inconsistent state-
ments. The mother of the student in that
incident, however, later believed she made
a mistake not believing her daughter.
When police contacted that student (then
in high school) to discuss the previous
allegation, she recounted that Dougherty
3. The Complaint names Does 110, at least
some of whom represent officers involved in
touched her bare breast and told her she
was a special girl.
In the affidavit, Officer Bobkiewicz also
recounts that he had fourteen years of
experience on the police force and had
worked as a School Resource Officer. He
had over 100 hours of training involving
juvenile and sex crimes, had conducted
hundreds of investigations related to sexu-
al assaults and juveniles, and was the des-
ignated Sex Crimes/Juvenile Detective
for the police department. The affidavit
concludes with Officer Bobkiewicz stating
that based upon my training and experi-
ence TTT I know subjects involved in this
type of criminal behavior have in their
possession child pornographyTTTT The af-
fidavit then requests the ability to seize
Doughertys computer, cameras, and elec-
tronic media and have them searched for
child pornography. A magistrate signed
the warrant on October 11, 2006.
When officers arrived at Doughertys
house, he allowed the officers to enter and
search. However, when Dougherty asked
to see a warrant, Officer Bobkiewicz stated
that he had forgotten it at the police sta-
tion. During the search, the officers en-
tered and moved about the house with
their guns drawn. They awakened Dough-
ertys adult son, Jonathan, at gun point
and gave him the option of leaving the
house or sitting on the couch in the living
room during the search. Jonathan chose
to remain on the couch. The officers
seized computers and related items from
Doughertys home. The computers and
other items were not returned until De-
cember 27, 2007. No charges were filed
against Dougherty.
After the search of Doughertys house,
Dougherty sued Officer Bobkiewicz, the
City of Covina, and Kim Raney, the Chief
of Police, for violating his constitutional
rights.3 Dougherty claimed (1) the City
the search. The Does, however, have not
 DOUGHERTY v. CITY OF COVINA
Cite as 654 F.3d 892 (9th Cir. 2011)
and the officers violated his and his sons
Fourth Amendment right to be free from
unreasonable search and seizure, (2) the
City inadequately trained and inadequately
investigated complaints about its officers
(a Monell claim 4), and (3) the City, Raney,
and Bobkiewicz inadequately supervised
and trained their subordinates with re-
spect to the incidents alleged.
The district court dismissed Doughertys
complaint with prejudice on August 4,
2009. The court reviewed the complaint,
the search warrant, and the affidavit. The
court found the warrant was supported by
probable cause, and that the detention of
Dougherty and his son was reasonable.
The district court further held Bobkiewicz
was entitled to qualified immunity. Final-
ly, the court dismissed the Monell claim on
the ground that Monell liability cannot be
found if no constitutional violations oc-
curred.
STANDARD OF REVIEW
[1] Dismissal pursuant to Federal Rule
of Civil Procedure 12(b)(6) is reviewed de
novo. Thompson v. Davis, 295 F.3d 890,
895 (9th Cir.2002). The facts alleged in a
complaint are to be taken as true and must
plausibly give rise to an entitlement to
relief. Ashcroft v. Iqbal, 556 U.S. 662,
129 S.Ct. 1937, 1950, 173 L.Ed.2d 868
(2009). Mere legal conclusions are not
entitled to the assumption of truth. Id.
The complaint must contain more than a
formulaic recitation of the elements of a
cause of action. Bell Atl. Corp. v. Twom-
bly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167
L.Ed.2d 929 (2007). It must plead
enough facts to state a claim to relief that
is plausible on its face. Id. at 570, 127
S.Ct. 1955.
been identified or served. Dougherty does
not appeal the only issue that could implicate
police officers other than Bobkiewiczthat
the search was executed unreasonably. See
infra Section V. Dougherty also does not al-
lege or argue that any officers other than
897
[2] Denial of leave to amend is re-
viewed for an abuse of discretion. Bowles
v. Reade, 198 F.3d 752, 757 (9th Cir.1999).
DISCUSSION
I. Probable Cause
[35] Sufficient information must be
presented to the magistrate to allow that
official to determine probable cause; his
action cannot be a mere ratification of the
bare conclusions of others. Illinois v.
Gates, 462 U.S. 213, 239, 103 S.Ct. 2317, 76
L.Ed.2d 527 (1983). When an affidavit
moves beyond the bare bones, howev-
er, a totality of the circumstances test is
employed. Id. at 23839, 103 S.Ct. 2317.
Under the totality of the circumstances
test, a neutral magistrate must make a
practical, common-sense decision whether,
given all the circumstances set forth in the
affidavit before him, including the veraci-
ty and basis of knowledge of persons
supplying hearsay information, there is a
fair probability that contraband or evi-
dence of a crime will be found in a particu-
lar place. Id. at 238, 103 S.Ct. 2317. The
magistrate is free to draw reasonable in-
ferences TTT from the material supplied to
him by applicants for a warrant. Id. at
240, 103 S.Ct. 2317.
[69] The standards for determining
probable cause for a search warrant ap-
ply to a search for child pornography on a
computer. United States v. Kelley, 482
F.3d 1047, 1050 (9th Cir.2007). Neither
certainty nor a preponderance of the evi-
dence is required, but rather a fair
probability that the evidence will be
found. Id. The magistrates determination
of probable cause should be paid great
Bobkiewicz were involved in preparing the
affidavit for the search warrant.
4. Monell v. Dept of Soc. Servs., 436 U.S. 658,
98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
898 654 FEDERAL REPORTER, 3d SERIES
deference. Id. (internal citation and quo-
tation marks omitted). Although in a
particular case it may not be easy to de-
termine when an affidavit demonstrates
the existence of probable cause, resolution
of doubtful or marginal cases in this area
should largely be determined by the pref-
erence to be accorded to warrants. Id.
at 105051 (quoting Gates, 462 U.S. at 237
n. 10, 103 S.Ct. 2317) (alteration omitted).
[10] Although there does not need to
be direct evidence of solicitation of child
pornography to create probable cause, Kel-
ley, 482 F.3d at 105152, the reviewing
court must make certain there was a sub-
stantial basis for the finding, United
States v. Weber, 923 F.2d 1338, 1343 (9th
Cir.1990) (citing Gates, 462 U.S. at 238,
103 S.Ct. 2317). In Weber, we held that
probable cause did not exist to search a
house for child pornography when an affi-
davit recited only that a suspect had two
years previously received a catalog of child
pornography and had ordered four images
of possible child pornography.5 Id. at
1345. The affidavit in Weber included a
statement from a police detective stating
that he knew the habits of child molest-
ers, pedophiles, and child pornography
collectors and that from his knowledge of
these classes of persons he could expect
certain things to be at their houses, from
diaries to sexual aids to photo developing
equipment. Id. The affidavit did not,
however, have a whit of evidence that
Weber was a child molester, and it did not
describe how many magazines or photo-
graphs it would take to qualify as a collec-
tor. Id. We noted that [i]t goes without
saying that the government could not
search Webers house for evidence to
prove Weber was a collector merely by
alleging he was a collector. Id. We dis-
tinguished the probable cause demonstrat-
ed in the affidavit in Weber from the affi-
5. Probable cause did exist to search for the
four images that Weber actually ordered from
davit in United States v. Rabe, 848 F.2d
994 (9th Cir.1988). We noted that, in
Rabe, there was direct evidence that the
defendant had child pornography in his
home. Id. We also noted that the expert
in Rabe specifically concluded that the de-
fendant was a pedophile, and the expert
and magistrate knew that the defendant
admitted to owning child pornography and
desired to take nude photos of children
before the warrant was issued. Weber,
923 F.2d at 134546 (citing Rabe, 848 F.2d
at 99596).
[11] If probable cause did not exist in
Weber, it cannot exist here. In Weber, the
affidavit included at least some direct evi-
dence of the defendants possible posses-
sion of child pornography, including a two-
year-old delivery of a catalog containing
child pornography, an order from a fake
catalog with image names suggesting child
pornography, and general information re-
garding collectors, pedophiles, and molest-
ers. Weber, 923 F.2d at 1345. Here, by
contrast, the affidavit includes only a
three-year-old allegation of attempted mo-
lestation by one student and current alle-
gations of inappropriate touching of and
looking at students.
The affidavit contains no facts tying the
acts of Dougherty as a possible child mo-
lester to his possession of child pornogra-
phy. The affidavit provides no evidence of
receipt of child pornography. No expert
specifically concludes Dougherty is a pe-
dophile. In the affidavit, Officer Bobkiew-
icz states only that [b]ased upon [his]
training and experience TTT subjects in
this type of criminal behavior have in their
possession child pornographyTTTT The af-
fidavit provides no indication that Dough-
erty was interested in viewing images of
naked children or of children performing
a fake catalog sent by the government. Web-
er, 923 F.2d at 1346.
 DOUGHERTY v. CITY OF COVINA
Cite as 654 F.3d 892 (9th Cir. 2011)
sex acts. There is no evidence of conver-
sations with students about sex acts, dis-
cussions with children about pictures or
video, or other possible indications of in-
terest in child pornography. Officer Bob-
kiewicz either did not search Doughertys
work computer or email account for indica-
tions of pedophilia or child pornography,
or did so and did not find any. Indeed,
the affidavit does not even verify that
Dougherty owned a computer or the other
targets of the search or had internet ser-
vice or another means of receiving child
pornography at his home.
Other circuits have split on the ques-
tion of whether evidence of child molesta-
tion, alone, creates probable cause for a
search warrant for child pornography.
The Second Circuit has stated that a
crime allegedly involv[ing] the sexual
abuse of a minor, [does] not relate to
child pornographyTTTT That the law crim-
inalizes both child pornography and the
sexual abuse (or endangerment) of chil-
dren cannot be enough. 6 United States
v. Falso, 544 F.3d 110, 123 (2d Cir.2008).
The Sixth Circuit agrees that, when prob-
able cause is established for one crime
(child molestation) but [the warrant is]
designed and requested [to] search for ev-
idence of an entirely different crime (child
pornography), it is beyond dispute that
the warrant [i]s defective. United States
v. Hodson, 543 F.3d 286, 292 (6th Cir.
2008). In fact, in Hodson, the evidence
was much more related to viewing chil-
dren in sex acts and to computers than
the evidence in the affidavit here. There,
in an internet chatroom, Hodson confid-
ed that he TTT favored young boys, liked
looking at his nine-and eleven-year-old
sons naked, and had even had sex with
6. The Second Circuit also noted, however,
that nothing in the affidavit draws a correla-
tion between a persons propensity to commit
both types of crimes. Falso, 544 F.3d at
123. The Falso court did not consider wheth-
er a conclusory statement tying persons in-
899
his seven-year-old nephew. [Hodson] also
expressed his desire to perform oral sex
on the presumptive twelve-year-old boy
TTT and his willingness to travel TTT to do
so. Id. at 287. Nonetheless, the Sixth
Circuit firmly held that the warrant was
so lacking in indicia of probable cause
that not even the good-faith exception to
unlawfully executed warrants could apply.
Id. at 29293.
The Eighth Circuit, however, has reject-
ed the reasoning of Falso and Hodson,
stating [t]here is an intuitive relationship
between acts such as child molestation or
enticement and possession of child pornog-
raphy. United States v. Colbert, 605 F.3d
573, 578 (8th Cir.2010). The affidavit in
Colbert, however, did include evidence that
the accused had enticed a child to come to
his apartment. Id. at 577.
Ultimately, the question of probable
cause is not readily, or even usefully,
reduced to a neat set of legal rules.
Gates, 462 U.S. at 232, 103 S.Ct. 2317.
Thus, while the totality of circumstances
could, in some instances, allow us to find
probable cause to search for child pornog-
raphy, Officer Bobkiewiczs conclusory
statement tying this subject, alleged to
have molested two children and looked
inappropriately at others, to having in
[his] possession child pornography is in-
sufficient to create probable cause here.
II. Qualified Immunity
[12, 13] A police officer is not entitled
to qualified immunity if: (1) the facts show
that the officers conduct violated a plain-
tiffs constitutional rights; and (2) those
rights were clearly established at the time
volved with sexual abuse of a minor to posses-
sion of child pornography would suffice to
create probable cause in absence of more
direct evidence or a more detailed explana-
tion of why such a connection exists.
900 654 FEDERAL REPORTER, 3d SERIES
of the alleged violation. Millender v.
Cnty. of Los Angeles, 620 F.3d 1016, 1023
24 (9th Cir.2010) (citing Pearson v. Calla-
han, 555 U.S. 223, 232, 129 S.Ct. 808, 172
L.Ed.2d 565 (2009)), cert. granted, U.S.
, 131 S.Ct. 3057, 180 L.Ed.2d 884 (2) that the municipality had a policy; (3)
(2011). The law in this circuit had not
been clearly established regarding wheth-
er allegations of sexual misconduct or mo-
lestation at a place of work provide proba-
ble cause to search a residence for child
pornography in the absence of an explana-
tion tying together the two crimes. Nei-
ther this court nor the Supreme Court has
addressed this question. Further, as dis-
cussed supra, other Circuit Courts of Ap-
peal have split on similar questions. Com-
pare Colbert, 605 F.3d at 578, with Falso,
544 F.3d at 123, and Hodson, 543 F.3d at
292. Therefore, because the law was not
clearly established at the time of the al-
leged events, the district court did not err
in holding Bobkiewicz and the other police
officers are entitled to qualified immunity.
See Pearson, 555 U.S. at 243, 129 S.Ct.
808.
III. The Monell and Supervisory Liabil-
ity Claims
[14, 15] Qualified immunity does not
shield municipalities from liability. Owen
v. City of Independence, 445 U.S. 622, 657,
100 S.Ct. 1398, 63 L.Ed.2d 673 (1980).
However, we may affirm the district
courts dismissal on any ground supported
by the record. Wolfe v. Strankman, 392
F.3d 358, 362 (9th Cir.2004). Under
Twombly, the Complaint does not state a
plausible cause of action for either munici-
pal or supervisory liability.
[16, 17] A government entity may not
be held liable under 42 U.S.C. 1983,
unless a policy, practice, or custom of the
entity can be shown to be a moving force
behind a violation of constitutional rights.
Monell v. Dept of Soc. Servs. of the City of
New York, 436 U.S. 658, 694, 98 S.Ct.
2018, 56 L.Ed.2d 611 (1978). In order to
establish liability for governmental entities
under Monell, a plaintiff must prove (1)
that [the plaintiff] possessed a constitu-
tional right of which [s]he was deprived;
that this policy amounts to deliberate in-
difference to the plaintiffs constitutional
right; and, (4) that the policy is the mov-
ing force behind the constitutional viola-
tion. Plumeau v. Sch. Dist. No. 40 Cnty.
of Yamhill, 130 F.3d 432, 438 (9th Cir.
1997) (internal quotation marks and cita-
tion omitted; alterations in original).
[1820] Failure to train may amount to
a policy of deliberate indifference, if the
need to train was obvious and the failure
to do so made a violation of constitutional
rights likely. City of Canton v. Harris,
489 U.S. 378, 390, 109 S.Ct. 1197, 103
L.Ed.2d 412 (1989). Similarly, a failure to
supervise that is sufficiently inadequate
may amount to deliberate indifference.
Davis v. City of Ellensburg, 869 F.2d 1230,
1235 (9th Cir.1989). Mere negligence in
training or supervision, however, does not
give rise to a Monell claim. Id.
[21, 22] Here, Doughertys Monell and
supervisory liability claims lack any factual
allegations that would separate them from
the formulaic recitation of a cause of ac-
tions elements deemed insufficient by
Twombly. See 550 U.S. at 555, 127 S.Ct.
1955. Regarding the Monell claim,
Dougherty alleged only that (1) Defen-
dant CITYs policies and/or customs
caused the specific violations of Plaintiffs
constitutional rights at issue in this case[ ]
and (2) Defendant CITYs polices and/or
customs were the moving force and/or af-
firmative link behind the violation of the
Plaintiffs constitutional rights and injury,
damage and/or harm caused thereby.
The Complaint lacked any factual allega-
tions regarding key elements of the Mo-
nell claims, or, more specifically, any facts
demonstrating that his constitutional de-
 DOUGHERTY v. CITY OF COVINA
Cite as 654 F.3d 892 (9th Cir. 2011)
privation was the result of a custom or
practice of the City of Covina or that the
custom or practice was the moving force
behind his constitutional deprivation. Re-
garding supervisory liability, Dougherty
alleged only negligent hiring and train-
ing and pointed to no instances of deliber-
ate indifference. Dougherty failed to
plead enough facts to state a claim to
relief that is plausible on its face. Twom-
bly, 550 U.S. at 570, 127 S.Ct. 1955.
Therefore, we affirm the district courts
dismissal of these claims.
IV. Leave to Amend
[23] Dougherty briefly argues that he
should have been allowed leave to amend.
As we stated in Albrecht v. Lund:
A party may amend the partys pleading
once as a matter of course at any time
before a responsive pleading is
servedTTTT Nevertheless, if a complaint
is dismissed for failure to state a claim
upon which relief can be granted, leave
to amend may be denied, even if prior to
a responsive pleading, if amendment of
the complaint would be futile.
845 F.2d 193, 195 (9th Cir.), modified, 856
F.2d 111 (9th Cir.1988) (internal citations
and quotation marks omitted). In Al-
brecht we determined that amendment
would be futile, because Albrechts claim
of undue influence as an alternative basis
for these counts is groundless. For exam-
ple, Albrecht does not allege that Lund
exercised excessive strength or that he
was a dominant subject and Albrecht was
a servient subject. Id. at 196 n. 1. Just as
in Albrecht, Dougherty failed to allege any
facts demonstrating that his constitutional
deprivation was the result of a custom or
practice of the City of Covina or that the
custom or practice was the moving force
behind his constitutional deprivation.
Dougherty could have identified any such
fact in his briefing or argument before us,
but he did not. Thus, because we must
conclude that amendment would be futile,
901
we affirm the district courts dismissal
with prejudice of the Monell and supervi-
sory liability claims, because amendment
would be futile. Id. at 195.
V. Lawfulness of the Search and Sei-
zure
Dougherty apparently does not appeal
the district courts ruling on whether the
search was executed lawfully. He does
not include this issue in his statement of
issues and makes no argument as to this
issue in his Opening Brief. Accordingly, it
is not before us.
AFFIRMED.
BREWSTER, Judge, concurring in the
judgment:
I conclude the search warrant was sup-
ported by probable cause. United States
v. Gourde, 440 F.3d 1065 (9th Cir.2006) (en
banc). I accord more deference to the
independent judgment of the magistrate
judge and to the experience and training of
the investigating officer. Based upon Offi-
cer Bobkiewiczs specific training and ex-
perience in the field of sex crimes against
children, the facts presented led him to
conclude that an individual who molests
children probably possesses child pornog-
raphy. I agree with the Eighth Circuits
analysis in United States v. Colbert, 605
F.3d 573, 578 (8th Cir.2010), that it is a
common sense leap that an adult male,
who teaches sixth graders, engaged in this
type of inappropriate conduct would likely
possess child pornography. Accord Unit-
ed States v. Byrd, 31 F.3d 1329, 1340 (5th
Cir.1994); United States v. Houston, 754
F.Supp.2d 1059, 106264 & n. 1 (D.S.D.
2010); see also Osborne v. Ohio, 495 U.S.
103, 111 n. 7, 110 S.Ct. 1691, 109 L.Ed.2d
98 (1990). Doughertys pattern of affirma-
tive misconduct with several sixth grade
students is closely related to an interest in
looking at sexual images of minors. The
facts suggested to Officer Bobkiewicz, a
highly trained and experienced Sex
902 654 FEDERAL REPORTER, 3d SERIES
Crimes/Juvenile Detective, that a poten-
tial child predator has moved along the
continuum of looking and into the realm of
touching. Doughertys active misconduct
distinguishes his case from the cases in-
volving defendants who may have passive-
ly received unsolicited child pornography.
E.g., United States v. Kelley, 482 F.3d
1047, 1051 (9th Cir.2007); United States v.
Weber, 923 F.2d 1338, 1345 (9th Cir.1990).
More importantly, the magistrate judge
reviewed the affidavit and signed the
search warrant. The magistrate judges
determination should be paid great defer-
ence. Gourde, 440 F.3d at 1069(quoting
Illinois v. Gates, 462 U.S. 213, 236, 103
S.Ct. 2317, 76 L.Ed.2d 527 (1983)).
Although I disagree with the probable
cause analysis, I concur that the police
officers are entitled to qualified immunity.
Accordingly, my position would not alter
the outcome of this case.
, sion in Lee v. Lampert, 653 F.3d 929 (9th
George SOULIOTES, Petitioner
Appellant,
v.
Mike EVANS, Warden; Antho-
ny Hedgpeth, Warden, Re-
spondentsAppellees.
No. 0815943.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Feb. 12, 2010.
Filed Aug. 17, 2011.
Randall S. Luskey, Orrick, Herrington
& Sutcliffe LLP, San Francisco, CA, for
the petitioner-appellant.
* Due to the death of Judge Cynthia Holcomb
Hall, Judge Marsha S. Berzon, United States
Circuit Judge for the Ninth Circuit, was
drawn to replace her.
Kathleen A. McKenna, Deputy Attorney
General, Office of the Attorney General of
California, Fresno, CA, for the respon-
dents-appellees.
Sheryl Gordon McCloud, Law Offices of
Sheryl Gordon McCloud, Seattle, WA;
Bob Barr, Atlanta, GA; Matthew D.
Brown, Cooley Godward Kronish LLP,
San Francisco, CA, for the amici.
Appeal from the United States District
Court for the Eastern District of Califor-
nia, Oliver W. Wanger, District Judge,
Presiding. D.C. No. 1:06cv00667
OWWWMW.
Before: M. MARGARET McKEOWN
and MARSHA S. BERZON,* Circuit
Judges, and THOMAS S. ZILLY,**
Senior District Judge.
ORDER
In light of the intervening en banc deci-
Cir.2011) (en banc), we vacate our opinion
in Souliotes v. Evans, 622 F.3d 1173 (9th
Cir.2010), reverse the district courts dis-
missal of Souliotess habeas petition as un-
timely, and remand for proceedings consis-
tent with Lee.
We also vacate our order of limited re-
mand issued on May 25, 2011, with the
understanding that the district court will
conduct whatever proceedings are neces-
sary, in an expedited manner, to determine
whether any of Souliotess habeas claims
may be addressed on the merits.
REVERSED and REMANDED.
,
** The Honorable Thomas S. Zilly, Senior Unit-
ed States District Judge for the Western Dis-
trict of Washington, sitting by designation.