Dennis McCulley v. City of Tucson

FILED
NOT FOR PUBLICATION MAR 06 2012

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

FOR THE NINTH CIRCUIT

DENNIS DAVID McCULLEY, No. 10-16298

Plaintiff - Appellant, D.C. No. 4:08-cv-00007-DCB

v.
MEMORANDUM *
CITY OF TUCSON; et al.,

Defendants - Appellees.

Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding

Submitted February 21, 2012 **

Before: FERNANDEZ, McKEOWN, and BYBEE, Circuit Judges.

Dennis David McCulley appeals pro se from the district court’s summary

judgment in his 42 U.S.C. § 1983 action alleging violations of his civil rights when

he was shot by police officers. We have jurisdiction under 28 U.S.C. § 1291. 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).
review de novo. Luchtel v. Hagemann, 623 F.3d 975, 978 (9th Cir. 2010). We

affirm summary judgment for defendants for the reasons set forth in the magistrate

judge’s report and recommendation entered on March 29, 2010, and adopted by the

district court in its order entered on May 24, 2010.

The district court did not abuse its discretion in denying McCulley’s motion

for reconsideration, because McCulley provided no basis for reconsideration. See

Barber v. State of Hawaii, 42 F.3d 1185, 1198 (9th Cir. 1994) (setting forth

standard of review).

We decline to consider McCulley’s argument, raised for the first time on

appeal, that his arrest constituted a denial of a public benefit under Title II of the

Americans with Disabilities Act. See Peterson v. Highland Music, Inc., 140 F.3d

1313, 1321 (9th Cir. 1998) (noting general rule against entertaining arguments on

appeal that were not developed before the district court).

McCulley’s remaining contentions are unpersuasive.

McCulley’s letter received on January 3, 2012 is construed as a supplement

to his reply brief, and has been considered.

AFFIRMED.

2 10-16298