“A police officer may make a seizure by a show of authority and without the use of physical force, but there is no seizure without actual submission; otherwise there is at most an attempted seizure, so far as the Fourth Amendment is concerned.”
How later courts described this case
- “A police officer may make a seizure by a show of authority and without the use of physical force, but there is no seizure without actual submission; otherwise there is at most an attempted seizure, so far as the Fourth Amendment is concerned.”
Written by the judges who cited it.
The opinion
FILED
NOT FOR PUBLICATION AUG 21 2013
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
HAFID TAHRAOUI, an individual, No. 12-35291
Plaintiff - Appellant, D.C. No. 3:11-cv-05901-BHS
v.
MEMORANDUM *
FRANKLIN BROWN; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Western District of Washington
Benjamin H. Settle, District Judge, Presiding
Submitted August 14, 2013 **
Before: SCHROEDER, GRABER, and PAEZ, Circuit Judges.
Hafid Tahraoui appeals pro se from the district court’s judgment dismissing
his 42 U.S.C. § 1983 action alleging that defendants violated his First, Fourth,
Fifth, and Fourteenth Amendment rights. We have jurisdiction under 28 U.S.C.
§ 1291. We review de novo a district court’s dismissal for failure to state a claim
*
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).
under Fed. R. Civ. P. 12(b)(6). Romano v. Bible, 169 F.3d 1182, 1185 (9th Cir.
1999). We may affirm on any ground supported by the record. Lambert v.
Blodgett, 393 F.3d 943, 965 (9th Cir. 2004). We affirm.
The district court properly dismissed Tahraoui’s First Amendment
retaliation claim because Tahraoui failed to allege facts showing that defendants
acted with the intent of chilling Tahraoui’s protected conduct. See Skoog v. County
of Clackamas, 469 F.3d 1221, 1232 (9th Cir. 2006) (in a First Amendment
retaliation claim, plaintiff must demonstrate that defendant’s “desire to cause the
chilling effect was a but-for cause of the defendant’s action”).
The district court properly dismissed Tahraoui’s Fourth Amendment claim
because Tahraoui was not seized for purposes of the Fourth Amendment. See
Brendlin v. California, 551 U.S. 249, 254 (2007) (“A police officer may make a
seizure by a show of authority and without the use of physical force, but there is no
seizure without actual submission; otherwise there is at most an attempted seizure,
so far as the Fourth Amendment is concerned.”).
Dismissal of Tahraoui’s substantive due process claim was proper because
Tahraoui failed to allege facts showing that defendants acted with such deliberate
indifference to his rights that their actions “shock the conscience.” See Tamas v.
Dep’t of Soc. & Health Servs., 630 F.3d 833, 844 (9th Cir. 2010) (“To violate due
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process, state officials must act with such deliberate indifference to the liberty
interest that their actions ‘shock the conscience.’” (citation omitted)).
The district court did not abuse its discretion in denying Tahraoui’s motion
for reconsideration, including his request to amend his complaint to include facts
and a claim that he “unintentionally forgot” to include in his First Amended
Complaint. See SEC. v. Platforms Wireless Int’l Corp., 617 F.3d 1072, 1100 (9th
Cir. 2010) (setting forth standard of review); see also W.D. Wash. R. 7(h)(1)
(motions for reconsideration will be “ordinarily den[ied]” in the absence of a
showing of “new facts . . . which could not have been brought to [the court’s]
attention earlier with reasonable diligence”).
AFFIRMED.
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