FILED
NOT FOR PUBLICATION
APR 1 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN HUNT, No. 18-16838
Plaintiff-Appellant, D.C. No.
2:17-cv-01519-JCM-NJK
v.
CITY OF BOULDER CITY; JOHN MEMORANDUM*
GLENN, individually and in his official
capacity as a Sergeant of the Boulder City
Police Department,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted March 24, 2020**
Las Vegas, Nevada
Before: W. FLETCHER, BYBEE, and WATFORD, Circuit Judges.
Plaintiff-Appellant John Hunt appeals the district court’s grant of summary
judgment in his § 1983 action against the City of Boulder and Boulder City Police
*
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).
Department (BCPD) Officer John Glenn. Because the parties are familiar with the
facts, we will not recite them here except where necessary. We review the district
court’s grant of summary judgment de novo. See Animal Legal Def. Fund v. U.S.
FDA, 836 F.3d 987, 988 (9th Cir. 2016) (en banc) (per curiam). We affirm.
1. Summary judgment was proper for the claims against Boulder City. To hold
a municipality liable for the constitutionally violative acts of an employee, a
plaintiff must demonstrate that the employee acted pursuant to a policy or custom
of the municipality. Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978).
Hunt concedes that his Monell claim against the City should be dismissed, but
seeks instead to hold Boulder City liable under a theory of simple respondeat
superior. But “a municipality cannot be held liable under § 1983 on a respondeat
superior theory.” Id. at 691. Thus, Hunt’s claims against Boulder City cannot
stand.
2. Summary judgment was proper for the Fourth Amendment excessive force
claim against Officer Glenn. Under the doctrine of qualified immunity, a
government official is immune “from liability for civil damages insofar as [his]
conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.” Pearson v. Callahan, 555 U.S.
223, 231 (2009) (internal quotation marks omitted). Hunt has not shown that
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Glenn violated a clearly established right either when he grabbed Hunt after Hunt
refused to get out of the road, or when he took Hunt to the ground after Hunt
resisted arrest. Hunt asserts that the Supreme Court’s decision in Tennessee v.
Garner establishes that right. But Garner concerned “the constitutionality of the
use of deadly force to prevent the escape of an apparently unarmed suspected
felon,” 471 U.S. 1, 3 (1985); its facts are too divergent from those in this case for it
to be instructive. Glenn is thus entitled to qualified immunity on this claim.
3. Summary judgment was proper for the Fourth Amendment unlawful arrest
claim against Officer Glenn. A police officer may arrest a person without a
warrant if he has probable cause to believe that the person committed a crime in the
officer’s presence. See Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001).
Nevada law prohibits pedestrians “suddenly leav[ing] a curb or other place of
safety and walk[ing] or run[ning] into the path of a vehicle which is so close that it
is impossible for the driver to yield.” Nev. Rev. Stat. § 484B.283(1)(b). Glenn
witnessed Hunt walking back and forth across the crosswalk and observed cars
struggling to stop in time to yield to Hunt. And Hunt admits that at least one driver
failed to stop without intruding on the crosswalk. These facts amount to probable
cause for violating Nevada Revised Statutes § 484B.283(1)(b). Moreover, Hunt
concedes that he resisted Glenn’s efforts to move Hunt out of the road, and so
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Glenn had probable cause to arrest Hunt for resisting arrest. Thus, there was no
unlawful arrest.
4. Summary judgment was proper on the First Amendment retaliatory arrest
claim against Officer Glenn. When there is probable cause for an arrest, a First
Amendment retaliation claim fails as a matter of law. Nieves v. Bartlett, 139 S. Ct.
1715, 1724 (2019). Because Glenn had probable cause to arrest Hunt, supra, the
First Amendment retaliation claim fails.
5. Summary judgment was proper on the malicious prosecution claim against
Officer Glenn. Hunt has shown no evidence that Glenn was involved in the
decision to re-file charges against Hunt or to add additional charges On this
record, Glenn cannot be held liable for the decision to prosecute, even if it was
malicious. See generally Freeman v. City of Santa Ana, 68 F.3d 1180, 1189 (9th
Cir. 1995).
6. Summary judgment was proper on the due process claims against Officer
Glenn. There is “a clearly established constitutional due process right not to be
subjected to criminal charges on the basis of false evidence that was deliberately
fabricated by the government.” Devereaux v. Abbey, 263 F.3d 1070, 1074–75 (9th
Cir. 2001). Hunt challenges the validity of two pieces of evidence in this case: (1)
an allegedly falsified police report and (2) allegedly altered dash-cam footage.
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Hunt has presented no evidence that the police report was deliberately falsified,
and the dash-cam footage was likely not falsified at all. But even if this evidence
were deliberately falsified, Hunt was not charged “on the basis of” either the dash-
cam video or the police report. Thus, Glenn is thus entitled to qualified immunity
on this claim.
AFFIRMED.
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