McInerney v. City & County of San Francisco

FILED
NOT FOR PUBLICATION JAN 12 2012

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

FOR THE NINTH CIRCUIT

JOSEPH McINERNEY, No. 10-16864

Plaintiff - Appellant, D.C. No. 3:09-cv-00430

v.
MEMORANDUM *
CITY AND COUNTY OF SAN
FRANCISCO; SPAIN, Officer # 1247;
COX, Sgt., # 287; TIDES CENTER;
DISH; DOUG GARY; SEAN HUGHES;
WOLFGANG STUWE,

Defendants - Appellees.

Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding

**
Submitted December 19, 2011

Before: GOODWIN, WALLACE, and McKEOWN, Circuit Judges.

Joseph McInerney timely appeals pro se from the district court's judgment in

his 42 U.S.C. § 1983 action, which arose from his arrest for trespassing at the

*
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).
LeNain hotel. The district court granted summary judgment to defendants Cox,

Spain, and the City and County of San Francisco. It dismissed with prejudice the

claims against defendants Buckley, Fong, and Stuwe.1 It dismissed without

prejudice McInerney’s state law claims, and his claims against unserved

defendants Tides Center, Dish, Hughes, and Gary. We have jurisdiction pursuant

to 28 U.S.C. § 1291, and we affirm.

McInerney contends that the district court improperly excluded evidence of

an unlawful search of his backpack, but he does not identify– and we could not

locate– any motion seeking to offer that evidence, nor any order excluding it.

Because this contention was not accompanied by sufficient reasons or argument,

we deem it waived. See Fed. R. App. P. 28(a)(9)(A); Katie A., ex rel. Ludin v. L.A.

Cnty., 481 F.3d 1150, 1161 n.21 (9th Cir. 2007).

McInerney contends that the district court should not have required him to

show excusable neglect for his failure to serve some of the defendants. We review

a dismissal for failure to effect service under Federal Rule of Civil Procedure 4(m)

1
Buckley, Fong and Stuwe were not served, but the district court dismissed
the federal claims against them with prejudice in light of the court’s conclusions
with respect to the motion for summary judgment. On appeal, McInerney does not
challenge that dismissal. Instead, he claims that the marshal should have served
Buckley. This argument fails because McInerney never showed that he requested
that Buckley be served. See Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994),
overruled on other grounds by Sandin v. O’Connor, 515 U.S. 472, 483–84 (1995).

2 10-16864
for abuse of discretion. Puett v. Blandford, 912 F.2d 270, 273 (9th Cir. 1990). It

was McInerney’s responsibility to provide the marshal with information sufficient

to identify the defendants. See Walker, 14 F.3d at 1422. Because McInerney did

not establish that he did so, and did not explain his failure to do so, the district

court properly dismissed without prejudice his claims against unserved defendants

Tides Center, Dish, Hughes, and Gary. See Lemoge v. United States, 587 F.3d

1188, 1198 n.3 (9th Cir. 2009); Walker, 14 F.3d at 1422.

We review a summary judgment de novo. See Brodheim v. Cry, 584 F.3d

1262, 1267 (9th Cir. 2009). The district court properly entered judgment on

McInerney’s false arrest claim because the officers had probable cause to arrest

him for trespassing in violation of California Penal Code § 602(o). See Cal. Penal

Code § 836(a)(1); Edgerly v. City and Cnty. of S.F., 599 F.3d 946, 953 (9th Cir.

2010); Blankenhorn v. City of Orange, 485 F.3d 463, 474–75 (9th Cir. 2007).

McInerney acknowledged that he refused to leave the LeNain after being asked to

do so by both Hughes, who was in charge, and the police officers; he also

acknowledged that access to the LeNain was regulated by a door buzzer. See

Blankenhorn, 485 F.3d at 474–75. McInerney cannot defeat summary judgment

when he presented no evidence that the LeNain was open to the public, and

likewise presented no evidence that Hughes did not have authority, as the owner’s

3 10-16864
agent, to bar him from the premises. See Cal. Penal Code § 602(o); Soremekun v.

Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (“[c]onclusory, speculative

testimony in affidavits and moving papers” cannot defeat summary judgment).

McInerney failed to provide sufficient evidence that the officers used

unreasonable force in arresting him, as required for his excessive force claim. See

Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 921–22 (9th Cir.

2001). McInerney testified at his deposition that the handcuffs were merely

uncomfortable, and were removed at his request. He did not claim that they were

excessively tight or caused him injury. Cf. Wall v. Cnty. of Orange, 364 F.3d

1107, 1109–10, 1112 (9th Cir. 2004). According to McInerney, after he was

handcuffed, an officer “tried to strongarm [him]” and grabbed his arm as he led

McInerney to the police van. The officer removed his hand at McInerney’s

request. To the extent any force was used, it “was patently reasonable and

commensurate with what was needed,” especially in light of McInerney’s earlier,

repeated refusals to leave the premises. See Johnson v. Cnty. of L.A., 340 F.3d

787, 793 (9th Cir. 2003); Arpin, 261 F.3d at 921–22.

The district court properly granted summary judgment to San Francisco

because McInerney failed to demonstrate that he was deprived of any of his

4 10-16864
constitutional rights. See Jackson v. City of Bremerton, 268 F.3d 646, 653–54 (9th

Cir. 2001).

We review the district court’s decision to decline supplemental jurisdiction

for abuse of discretion. Trs. of the Constr. Indus. and Laborers Health and

Welfare Trust v. Desert Valley Landscape & Maint., Inc., 333 F.3d 923, 925 (9th

Cir. 2003). There was no abuse of discretion because the district court had

dismissed or granted judgment on all of McInerney’s federal claims. See 28

U.S.C. § 1367(c)(3); Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7

(1988); Acri v. Varian Assocs., Inc., 114 F.3d 999, 1000 (9th Cir. 1997) (en banc).

AFFIRMED.

5 10-16864