NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 12 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DANIEL MATTHEW MCGUIGAN, No. 16-55492
Plaintiff-Appellee, D.C. No.
5:14-cv-02483-VAP-SP
v.
COUNTY OF SAN BERNARDINO, MEMORANDUM*
Defendant,
and
CHARLES NICHOLS; CHARLES
MULLIGAN; PAUL SCHAEFER,
Defendants-Appellants.
Appeal from the United States District Court
for the Central District of California
Virginia A. Phillips, Chief Judge, Presiding
Argued and Submitted October 2, 2017
Pasadena, California
Before: M. SMITH and NGUYEN, Circuit Judges, and SETTLE,** District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Benjamin H. Settle, United States District Judge for
the Western District of Washington, sitting by designation.
Defendants-Appellants argue that they are entitled to qualified immunity
with regard to Plaintiff-Appellee McGuigan’s unlawful seizure, excessive force,
and malicious prosecution claims brought under 42 U.S.C. § 1983. For the reasons
stated below, we agree, and so reverse and remand.
FACTUAL AND PROCEDURAL BACKGROUND
For purposes of this appeal, we accept as true the following factual account
proffered by McGuigan, and draw all inferences therefrom in his favor.
On the evening of October 23, 2013, Defendant-Appellant Nichols went to
McGuigan’s home at 8411 Hawthorne Street in Rancho Cucamonga to execute an
active felony arrest warrant for an individual named Erik Ford. The warrant
indicated that Ford resided at that address, though in a different zip code. It
described Ford as a white male who was 5’8” tall, weighed 180 pounds, had
blonde hair and green eyes, and was born in 1970.
McGuigan intercepted Nichols on the home’s front porch. McGuigan was a
white man, had “dark black” hair and blue eyes, weighed 215 pounds, and was
6’0” tall. He was born in 1967. McGuigan denied any knowledge of or
acquaintance with Ford, but refused to identify himself. The situation escalated.
Eventually, Nichols arrested McGuigan for impeding Nichols’s investigation in
violation of California Penal Code § 148. To effect this arrest, Nichols shoved
McGuigan against a wall and handcuffed him. Though McGuigan asked Nichols
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to loosen his cuffs, Nichols would not do so.
STANDARD OF REVIEW AND JURISDICTION
Because Defendants-Appellants challenge the district court’s denial of
qualified immunity, “we have jurisdiction over the denial of summary judgment,
an interlocutory decision not normally appealable[,]” though the “scope” of our
review “is circumscribed.” George v. Morris, 736 F.3d 829, 834 (9th Cir. 2013).
“[W]e are confined to the question of whether the [Defendants-Appellants] would
be entitled to qualified immunity as a matter of law, assuming all factual disputes
are resolved, and all reasonable inferences are drawn,” in favor of McGuigan. Id.
at 836 (internal quotation mark omitted) (quoting Karl v. City of Mountlake
Terrace, 678 F.3d 1062, 1068 (9th Cir. 2012)). We review de novo Defendants-
Appellants’ entitlement to qualified immunity. See Glenn v. Wash. Cty., 673 F.3d
864, 870 (9th Cir. 2011).
ANALYSIS
“To determine whether qualified immunity applies in a given case, we must
determine: (1) whether a public official has violated a plaintiff’s constitutionally
protected right; and (2) whether the particular right that the official has violated
was clearly established at the time of the violation.” Shafer v. Cty. of Santa
Barbara, 868 F.3d 1110, 1115 (9th Cir. 2017). For a right to be clearly
established, case law ordinarily must have been developed previously “in such a
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concrete and factually defined context [as] to make it obvious to all reasonable
government actors, in the defendant’s place,” that the defendant’s conduct violates
federal law. Id. at 1117. Showing that the right allegedly violated was clearly
established is the plaintiff’s burden. Id. at 1118.
Here, McGuigan has not carried this burden; he has not identified law that
would make it obvious to all reasonable officers, in the Defendants-Appellants’
place, that what they did violated federal law. Thus, we cannot conclude that it
was obvious to all reasonable officers (1) that despite the physical similarities
between McGuigan and Ford, and their two addresses, an officer could not
reasonably suspect McGuigian was Ford or was harboring Ford; or (2) that it was
excessive force to restrain McGuigan against a wall and refuse to loosen his
handcuffs, though McGuigan did not complain of pain. Defendants-Appellants are
entitled to qualified immunity with regard to McGuigan’s detention and the force
used to effect McGuigan’s arrest.
In light of this holding, McGuigan’s malicious prosecution claim is moot.
Because Defendants-Appellants are entitled to qualified immunity with regard to
McGuigan’s detention and arrest, there is no basis for a malicious prosecution
claim.
We decline to exercise pendent jurisdiction to review the district court’s
grant of qualified immunity because the special circumstances that might allow us
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to do so are lacking here. See, e.g., Sanchez v. Canales, 574 F.3d 1169, 1172 (9th
Cir. 2009), overruled on other grounds by United States v. King, 687 F.3d 1189
(9th Cir. 2012) (en banc) (per curiam); Cunningham v. Gates, 229 F.3d 1271,
1284-85 (9th Cir. 2000), as amended (Oct. 31, 2000).
CONCLUSION
For the foregoing reasons, the district court’s denial of summary judgment
on the basis of qualified immunity is REVERSED AND REMANDED.
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