NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 20 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
THOMAS NGUYEN, No. 15-56996
Plaintiff-Appellant, D.C. No. 3:11-cv-02594-WQH-
MDD
v.
EDUARDO LOPEZ, San Diego Police MEMORANDUM*
Officer (#6654); DAVID VALDEZ, San
Diego Police Officer (#6562),
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of California
William Q. Hayes, District Judge, Presiding
Submitted March 8, 2017**
Before: LEAVY, W. FLETCHER, and OWENS, Circuit Judges.
Thomas Nguyen appeals pro se from the district court’s judgment following
a bench trial in his 42 U.S.C. § 1983 action alleging unlawful detention and
excessive force in violation of the Fourth Amendment, and retaliation in violation
*
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).
of the First Amendment. We have jurisdiction under 28 U.S.C. § 1291. We
review de novo the district court’s conclusions of law and for clear error the
district court’s findings of fact. Milicevic v. Fletcher Jones Imports, Ltd., 402 F.3d
912, 915 (9th Cir. 2005). We affirm.
The district court did not clearly err in its credibility determinations, and,
based upon those findings, the district court properly concluded that defendants
had probable cause to detain Nguyen under California Welfare and Institutions
Code § 5150, and used reasonable force in doing so. See Bias v. Moynihan, 508
F.3d 1212, 1220 (9th Cir. 2007) (discussing and applying the probable cause
standard under § 5150); see also Graham v. Connor, 490 U.S. 386, 395-97 (1989)
(setting forth the objective reasonableness standard for excessive force
determinations).
The district court did not clearly err in entering judgment for defendants on
Nguyen’s First Amendment claim because defendants submitted credible
testimony that deterrence of Nguyen’s speech was not a substantial or motivating
factor in their decision to detain him under § 5150. See Lacey v. Maricopa County,
693 F.3d 896, 916-17 (9th Cir. 2012) (discussing elements of a First Amendment
retaliation claim).
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
2 15-56996
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
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