NOT FOR PUBLICATION FILED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
RONALD FRANK FIDGE, No. 15-17000
Plaintiff-Appellant, D.C. No. 4:13-cv-05182-YGR
v.
MEMORANDUM*
LAKE COUNTY SHERIFF’S
DEPARTMENT, AKA Lake County
Sheriff’s Office; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of California
Yvonne Gonzalez Rogers, District Judge, Presiding
Submitted March 8, 2017**
Before: LEAVY, W. FLETCHER, and OWENS, Circuit Judges.
Ronald Frank Fidge appeals pro se from the district court’s summary
judgment in his 42 U.S.C. § 1983 action alleging constitutional claims arising out
of his arrest for trespassing. 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 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). Fidge’s requests for oral
argument, set forth in his opening and reply briefs, are denied.
review de novo. Guatay Christian Fellowship v. County of San Diego, 670 F.3d
957, 970 (9th Cir. 2011). We may affirm on any basis supported by the record.
Thompson v. Paul, 547 F.3d 1055, 1058-59 (9th Cir. 2008). We affirm.
Summary judgment for Deputy Wright on Fidge’s unlawful arrest claim was
proper because Fidge failed to raise a genuine dispute of material fact as to
whether Wright arrested him without probable cause. See United States v.
Gonzales, 749 F.2d 1329, 1337 (9th Cir. 1984) (probable cause for a warrantless
arrest exists if “under the totality of the facts and circumstances known to the
arresting officer, a prudent person would have concluded that there was a fair
probability that the suspect had committed a crime”).
The district court properly granted summary judgment for Gaskell,
Hardester, and Harper on Fidge’s unlawful arrest claim because Fidge failed to
raise a genuine dispute of material fact as to whether these defendants acted under
the color of state law. See United Steelworkers of Am. v. Phelps Dodge Corp., 865
F.2d 1539, 1540 (9th Cir. 1989) (en banc) (“Private parties act under color of state
law if they willfully participate in joint action with state officials to deprive others
of constitutional rights.”); see also Jones v. Williams, 297 F.3d 930, 934 (9th Cir.
2002) (to establish § 1983 liability, a plaintiff must demonstrate that an action
occurred under color of state law and resulted in the deprivation of a constitutional
right).
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To the extent that Fidge challenges summary judgment for Deputy Wright
on Fidge’s excessive force claim, the district court properly granted summary
judgment because Fidge failed to raise a genuine dispute of material fact as to
whether Deputy Wright’s use of less-lethal force to effectuate Fidge’s arrest
violated Fidge’s Fourth Amendment rights. See Graham v. Connor, 490 U.S. 386,
396 (1989) (explaining that the test of reasonableness under the Fourth
Amendment requires “careful attention to the facts and circumstances of each
particular case, including the severity of the crime at issue, [and] whether . . . [the
arrestee] is actively resisting arrest . . . .”).
To the extent that Fidge alleges a claim under Monell v. Department of
Social Services, 436 U.S. 658 (1978), summary judgment was proper because
Fidge failed to raise a genuine dispute of material fact as to whether there was any
underlying constitutional violation or whether actions were taken pursuant to
established custom or policy. See City of Los Angeles v. Heller, 475 U.S. 796, 799
(1986) (Monell liability is unavailable “[i]f a person has suffered no
constitutional injury at the hands of the individual police officer[.]”); Henry v.
County of Shasta, 132 F.3d 512, 517 (9th Cir. 1997) (municipal defendant can only
be liable under § 1983 if actions were taken pursuant to custom or policy).
Dismissal of Fidge’s false imprisonment claim against Lake County was
proper because the district court granted summary judgment for Deputy Wright on
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this claim. See Cameron v. Craig, 713 F.3d 1012, 1023-24 (9th Cir. 2013) (county
is vicariously liable if a plaintiff prevails on a state law claim against a county
employee).
We reject as without merit Fidge’s contention that the district court
improperly considered hearsay evidence submitted by defendants in support of
their motions for summary judgment.
Contrary to Fidge’s contention, the record reflects that the district court
considered Fidge’s evidence submitted in opposition to summary judgment.
We reject as unsupported by the record Fidge’s contentions regarding
alleged judicial bias.
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
appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Fidge’s motion to take judicial notice of documents (Docket Entry No. 45) is
denied.
Fidge’s request for reassignment of the district court judge, set forth in his
opening brief, is denied.
AFFIRMED.
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