FILED
NOT FOR PUBLICATION OCT 14 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ROBERT SMITH, No. 12-17661
Plaintiff - Appellant, D.C. No. 2:10-cv-02650-MEA
v.
MEMORANDUM*
CITY OF PAYSON; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
Mark E. Aspey, Magistrate Judge, Presiding
Submitted October 9, 2014**
Phoenix, Arizona
Before: WALLACE, SILVERMAN, and M. SMITH, Circuit Judges.
Robert Smith appeals from the district court’s summary judgment to the
appellees, individual police officers and the City of Payson, on Smith’s claims
under 42 U.S.C. § 1983 and Arizona law. Smith also appeals from the district
*
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).
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court’s denial of his Rule 60(b) motion for a new trial. We have jurisdiction under
28 U.S.C. § 1291. We review a summary judgment and summary judgment based
on qualified immunity de novo. Blankenhorn v. City of Orange, 485 F.3d 463, 470
(9th Cir. 2007). We review a district court’s decision on a Rule 60 motion for
abuse of discretion. Sch. Dist. No. 1J, Multnomah Cnty., Or. v. ACandS, Inc., 5
F.3d 1255, 1262 (9th Cir. 1993). We affirm.
I. Timeliness of Notice of Appeal
Smith’s post-judgment motions were timely under the Federal Rules of Civil
Procedure. See Fed. R. Civ. P. 59, 60. Those motions tolled the time to file a
Notice of Appeal under Federal Rule of Appellate Procedure 4(a)(4)(A)(v)-(vi).
Smith filed his Notice of Appeal within 30 days of the district court’s denial of his
post-judgment motions, which was a final order. Therefore, the Notice of Appeal
was timely filed, and we have jurisdiction over this appeal.
II. Claims Under 42 U.S.C. § 1983
With respect to the district court’s summary judgment on the ground of
qualified immunity, Smith argues that genuine disputes of material fact regarding
the probable cause determination and Smith’s claimed justification defenses
required that the issue go to trial. However, the undisputed facts show that the
police had information (indeed, Smith admitted) that he lured a young man to his
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home, assaulted him, and confiscated his driver’s license. These undisputed facts
show that the police officers had probable cause to arrest Smith. Likewise, the
undisputed facts show that Smith’s actions were not in self-defense or otherwise
privileged. As the police officers had probable cause to make the arrest, they were
entitled to qualified immunity on Smith’s claims of false arrest and retaliatory
arrest under the first prong of the qualified immunity analysis. See Rosenbaum v.
Washoe Cnty., 663 F.3d 1071, 1075-76 (9th Cir. 2011).
Finally, a § 1983 claim for malicious prosecution requires a plaintiff to show
lack of probable cause. Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir.
2004). Because, again, the police officers here did have probable cause, the district
court correctly granted summary judgment to them on Smith’s § 1983 malicious
prosecution claim.
III. Malicious Prosecution Under Arizona Law
As with § 1983 malicious prosecution claims, lack of probable cause is an
essential element of malicious prosecution claims under Arizona state law.
Gonzales v. City of Phoenix, 52 P.3d 184, 187 (2002). Probable cause supported
Smith’s arrest and subsequent prosecution, so the district court properly granted
summary judgment to the police officers on this count. Smith v. Almada, 640 F.3d
931, 938 (9th Cir. 2011).
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IV. Municipal Liability
Smith’s false arrest and retaliatory arrest claims against the City of Payson
are predicated on his claims that the individual police officers violated his rights.
However, because the police officers had probable cause to arrest Smith, there was
no constitutional violation; therefore, Smith’s claim that the police department
failed to properly train officers has no merit. Scott v. Henrich, 39 F.3d 912, 916
(9th Cir. 1994). Smith points to no unconstitutional policy or practice in place in
Payson that could lead to municipal liability. The district court properly granted
summary judgment on Smith’s claims against the city.
V. Motion for Relief From the Judgment
Smith did not provide the district court with any reason cognizable under
Rule 60 to support his motion for relief from the judgment. Therefore, the district
court did not abuse its discretion in denying the motion.
AFFIRMED.