Tyrone Payne v. City of Missoula

FILED
NOT FOR PUBLICATION NOV 22 2011

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

TYRONE EVERETT PAYNE, No. 10-36022

Plaintiff - Appellant, D.C. No. 9:10-cv-00056-DWM

v.
MEMORANDUM *
CITY OF MISSOULA; BEN SLATER,

Defendants - Appellees.

Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding

**
Submitted November 21, 2011

Before: TASHIMA, BERZON, and TALLMAN, Circuit Judges.

Tyrone Everett Payne, a Montana state prisoner, appeals pro se from the

district court’s summary judgment in his 42 U.S.C. § 1983 action alleging that his

Fourth and Fourteenth Amendment rights were violated during a traffic stop. We

*
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).
have jurisdiction under 28 U.S.C. § 1291. We review de novo, Ramirez v. City of

Buena Park, 560 F.3d 1012, 1019 (9th Cir. 2009), and we affirm.

The district court properly granted summary judgment on Payne’s Fourth

Amendment claim because Officer Ben Slater had reasonable suspicion that Payne

violated Mont. Code Ann. § 61-8-333(1)(b) before Slater made the traffic stop.

See United States v. Lopez-Soto, 205 F.3d 1101, 1105 (9th Cir. 2000) (articulating

standard). The district court properly granted summary judgment on Payne’s

Fourteenth Amendment claim because Payne does not provide evidence that Slater

acted in a discriminatory manner or with discriminatory intent. See Bingham v.

City of Manhattan Beach, 341 F.3d 939, 948 (9th Cir. 2003), abrogated on other

grounds by Virginia v. Moore, 553 U.S. 164 (2008). Moreover, because Payne has

not shown any underlying constitutional violation, liability does not attach to the

City of Missoula. See City of Los Angeles v. Heller, 475 U.S. 796, 799 (1986) (per

curiam).

Payne’s Motion for Submission on Briefs is granted.

City of Missoula’s Motion to File DVD and CD is granted.

AFFIRMED.

2 10-36022