FILED
NOT FOR PUBLICATION
MAR 09 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RANDALL FONTANA, No. 14-35784
Plaintiff-Appellant, D.C. No. 2:13-cv-00245-JCC
v.
MEMORANDUM*
CITY OF AUBURN et al.,
Defendants,
and
SGT. JAMES NORDENGER,
Defendant-Appellee.
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Submitted March 7, 2017**
Seattle, Washington
Before: GRABER, IKUTA, and HURWITZ, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes that this case is suitable for decision
without oral argument. Fed. R. App. P. 34(a)(2).
Plaintiff Randall Fontana timely appeals the district court’s grant of
summary judgment in favor of Defendant Sergeant James Nordenger on Plaintiff’s
42 U.S.C. § 1983 claims of unlawful arrest and malicious prosecution. Reviewing
de novo the district court’s ruling that Nordenger is entitled to qualified immunity
and viewing the facts in the light most favorable to Plaintiff, Reza v. Pearce, 806
F.3d 497, 502 (9th Cir. 2015), we affirm.1
1. The district court correctly held that Nordenger is entitled to qualified
immunity on the unlawful arrest claim. Given the facts known to
Nordenger—including the threatening nature of Plaintiff’s statements, their
proximity in time to the Lakewood killings, the reliability of the named citizen
informant who was interviewed by officers, and the reports of Plaintiff’s post-
statement conduct—it was "reasonably arguable that there was probable cause for
arrest." Rosenbaum v. Washoe Cty., 663 F.3d 1071, 1076 (9th Cir. 2011) (per
curiam) (emphasis omitted).
1
Because the district court correctly ruled on qualified immunity, we need
not and do not address the court’s alternative ground for granting summary
judgment—issue preclusion. Also, because Plaintiff’s opening brief challenges the
summary judgment only as to Nordenger, we do not address the summary
judgment in favor of the other Defendants. See Smith v. Marsh, 194 F.3d 1045,
1052 (9th Cir. 1999) (holding that arguments not raised in a party’s opening brief
generally are waived).
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2. The district court correctly held that Nordenger is entitled to qualified
immunity on the malicious prosecution claim. The evidence does not disclose
"wrongful motives or reckless disregard of" Plaintiff’s rights. State v. Chenoweth,
158 P.3d 595, 602 (Wash. 2007). Plaintiff has not overcome the ordinary
presumption that the decision to file criminal charges "result[ed] from an
independent determination on the part of the prosecutor, [which] precludes liability
for those who participated in the investigation or filed a report that resulted in the
initiation of proceedings." Awabdy v. City of Adelanto, 368 F.3d 1062, 1067 (9th
Cir. 2004).
AFFIRMED.
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