Damone Daniel v. Kiang ( 2018 )


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  •                            NOT FOR PUBLICATION                           FILED
    UNITED STATES COURT OF APPEALS                       MAY 24 2018
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    DAMONE DANIEL,                                  No.    17-56199
    Plaintiff-Appellant,            D.C. No. 2:14-cv-03864-VAP-AJW
    v.
    MEMORANDUM*
    KIANG, Officer; MAGTOTO, Officer,
    Defendants-Appellees.
    Appeal from the United States District Court
    for the Central District of California
    Virginia A. Phillips, Chief Judge, Presiding
    Submitted May 15, 2018**
    Before:      SILVERMAN, BEA, and WATFORD, Circuit Judges.
    Damone Daniel appeals pro se from the district court’s summary judgment
    in his 42 U.S.C. § 1983 action alleging violations of his Fourth Amendment rights
    in connection with his arrest for trespass. We have jurisdiction under 28 U.S.C.
    § 1291. We review de novo, Ramirez v. City of Buena Park, 
    560 F.3d 1012
    , 1019
    *
    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).
    (9th Cir. 2009), and we affirm.
    The district court properly granted summary judgment on Daniel’s Fourth
    Amendment unlawful arrest claim because Daniel failed to raise a genuine dispute
    of material fact as to whether defendant Kiang lacked probable cause for his arrest.
    See Cal. Pen. Code § 602.1; Lacey v. Maricopa County, 
    693 F.3d 896
    , 918 (9th
    Cir. 2012) (“A claim for unlawful arrest is cognizable under § 1983 as a violation
    of the Fourth Amendment, provided the arrest was without probable cause or other
    justification.” (citation and internal quotation marks omitted)); 
    Ramirez, 560 F.3d at 1023
    (explaining when probable cause exists). Contrary to Daniel’s contention,
    the place of his arrest is not considered a public forum. See Ralphs Grocery Co. v.
    United Food & Commercial Workers Union Local 8, 
    290 P.3d 1116
    , 1121 (Cal.
    2012) (discussing when the area around a store is considered a public forum).
    Because no constitutional violation took place, the district court properly
    granted summary judgment for defendant Magtoto sued in his supervisory
    capacity. See Jackson v. City of Bremerton, 
    268 F.3d 646
    , 653 (9th Cir. 2001) (a
    supervisor cannot “be held liable under § 1983 where no injury or constitutional
    violation has occurred”).
    Even if probable cause for Daniel’s arrest did not exist, the district court
    properly granted summary judgment on the basis of qualified immunity because it
    would have not been clear to every reasonable officer that arresting Daniel violated
    2                                    17-56199
    his clearly established Fourth Amendment rights. See Blankenhorn v. City of
    Orange, 
    485 F.3d 463
    , 476 (9th Cir. 2007) (“[Q]ualified immunity is available if a
    reasonable police officer could have believed that his or her conduct was lawful, in
    light of the clearly established law and the information the searching officers
    possessed.” (citation omitted)).
    AFFIRMED.
    3                                   17-56199