FILED
NOT FOR PUBLICATION NOV 27 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETER MICHAEL PALMER, No. 13-17261
Plaintiff - Appellant, D.C. No. 3:10-cv-08209-JAT
v.
MEMORANDUM*
GLENN A. SAVONA, individually and in
his official capacity as Prescott City
Prosecutor and husband; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Arizona
James A. Teilborg, District Judge, Presiding
Submitted November 18, 2015**
Before: TASHIMA, OWENS, and FRIEDLAND, Circuit Judges.
Peter Michael Palmer appeals pro se from the district court’s judgment
dismissing his 42 U.S.C. § 1983 action alleging malicious prosecution and related
claims. We have jurisdiction under 28 U.S.C. § 1291. We review de novo a
*
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).
dismissal for failure to state a claim under Federal Rule of Civil Procedure
12(b)(6). Lacey v. Maricopa County, 693 F.3d 896, 911 (9th Cir. 2012) (en banc).
We may affirm on any basis supported by the record. Johnson v. Riverside
Healthcare Sys., LP, 534 F.3d 1116, 1121 (9th Cir. 2008). We affirm.
Dismissal of Palmer’s state and federal malicious prosecution claims was
proper because Palmer failed to allege facts sufficient to show that defendants
acted with malice. See Lacey, 693 F.3d at 919 (elements of malicious prosecution
claim under § 1983); Slade v. City of Phoenix, 541 P.2d 550, 552 (Ariz. 1975)
(elements of malicious prosecution claim under state law).
The district court properly dismissed Palmer’s Fourth Amendment claim
because Palmer failed to allege facts sufficient to show that his pretrial release
restrictions relating to a misdemeanor charge were more than de minimus. See
Karam v. City of Burbank, 352 F.3d 1188, 1193-94 (9th Cir. 2003) (concluding
that there was no Fourth Amendment seizure where the plaintiff’s pretrial release
restrictions were de minimus).
The district court properly dismissed Palmer’s abuse of process claim
because Palmer failed to allege facts sufficient to show that defendants’ primary
motive for prosecuting Palmer was improper. See Crackel v. Allstate Ins. Co., 92
P.3d 882, 889 (Ariz. Ct. App. 2004) (elements of an abuse of process claim).
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Dismissal of Palmer’s Fourteenth Amendment due process claim was proper
because there is no “substantive right under the Due Process Clause of the
Fourteenth Amendment to be free from criminal prosecution except upon probable
cause.” Albright v. Oliver, 510 U.S. 266, 268 (1994).
Dismissal of Palmer’s Second Amendment claim was proper because the
issue of whether the release condition violated the Second Amendment was already
litigated in Palmer’s prior criminal state action. See Matter of Lockard, 884 F.2d
1171, 1174-75 (9th Cir. 1989) (elements of issue preclusion under Arizona state
law).
The district court properly dismissed Palmer’s false light claim because
Palmer did not allege facts sufficient to show that defendants made a “major
misrepresentation of [Palmer’s] character, history, activities or beliefs.”
Godbehere v. Phoenix Newspapers, Inc., 783 P.2d 781, 784, 786-87 (Ariz. 1989)
(citation and internal quotation marks omitted) (elements of false light invasion of
privacy claim); see also Hebbe v. Pliler, 627 F.3d 338, 341-42 (9th Cir. 2010) (a
pro se plaintiff must present factual allegations sufficient to state a plausible claim
for relief).
The district court did not abuse its discretion by dismissing without leave to
amend because the deficiencies in Palmer’s amended complaint could not be cured
3 13-17261
by amendment. See Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc)
(setting forth standard of review and explaining that leave to amend should be
given unless the deficiencies in the complaint cannot be cured by amendment).
We do not consider arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009) (per curiam).
Palmer’s request to amend his complaint, set forth in his opening brief, is
denied.
Defendants’ request for costs and fees, set forth in their answering brief, is
denied without prejudice to filing a timely motion for attorney’s fees and a bill of
costs.
AFFIRMED.
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