Samuel Fuller v. Ryan Meghean

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JAN 26 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT

SAMUEL LOUIS FULLER, AKA Sam No. 15-17004
Louis Fuller, AKA Samuel Fuller,
D.C. No. 2:13-cv-01296-DLR
Plaintiff-Appellant,

v. MEMORANDUM*

RYAN MEGHEAN, Peace Officer,
Phoenix Police,

Defendant-Appellee.

Appeal from the United States District Court
for the District of Arizona
Douglas L. Rayes, District Judge, Presiding

Submitted January 18, 2017**

Before: TROTT, TASHIMA, and CALLAHAN, Circuit Judges.

Samuel Louis Fuller, a former Arizona pretrial detainee, appeals pro se from

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

constitutional claims. We have jurisdiction under 28 U.S.C. § 1291. We review de

*
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).
novo. Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000) (dismissal under 28

U.S.C. § 1915A); White v. Roper, 901 F.2d 1501, 1503 (9th Cir. 1990) (summary

judgment). We affirm.

The district court properly granted summary judgment on Fuller’s excessive

force claim because Fuller failed to raise a genuine dispute of material fact as to

whether defendant’s use of a spit mask was objectively unreasonable. See

Kingsley v. Hendrickson, 135 S. Ct. 2466, 2470, 2473 (2015) (in determining

whether use of force against pretrial detainee is objectively unreasonable, the court

can consider “the relationship between the need for the use of force and the amount

of force used; the extent of the plaintiff’s injury; any effort made by the officer to

temper or limit the amount of force; the severity of the security problem at issue;

the threat reasonably perceived by the officer; and whether the plaintiff was

actively resisting”).

The district court properly dismissed Fuller’s equal protection claim because

Fuller failed to allege facts sufficient to show that he was treated differently from

others similarly situated. See Village of Willowbrook v. Olech, 528 U.S. 562, 564

(2000) (elements of “class of one” equal protection claim).

The district court properly dismissed Fuller’s claim alleging the defendant’s

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use of a spit mask to prevent Fuller from speaking violated his First Amendment

rights because Fuller failed to allege facts sufficient to state a plausible First

Amendment claim. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell

Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

We do not consider matters that are not “specifically and distinctly raised

and argued in appellant’s opening brief,” and we do not consider matters raised for

the first time on appeal. Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).

Fuller’s request that Judge Rayes be disqualified is denied. See Cintron v.

Union Pac. R.R. Co., 813 F.2d 917, 921 (9th Cir. 1987) (district court judge is

appropriately disqualified when personal bias against a party or unusual

circumstances exist).

Fuller’s motion to transmit evidence, filed June 13, 2016, is denied.

Fuller’s motion to expedite his appeal, filed January 20, 2017, is denied as

moot.

AFFIRMED.

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