holding that Eighth 11 Amendment claims were properly dismissed because the plaintiff “was not convicted and 12 sentenced for any violation.”
How later courts described this case
- holding that Eighth 11 Amendment claims were properly dismissed because the plaintiff “was not convicted and 12 sentenced for any violation.”
- upholding district court’s grant of summary judgment for excessive force claim brought 3 under the wrong constitutional framework
Written by the judges who cited it.
The opinion
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT APR 21 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
RICHARD J. GLAIR, No. 13-56658
Plaintiff - Appellant, D.C. No. 2:11-cv-00093-R-RNB
v.
MEMORANDUM*
CITY OF SANTA MONICA; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
Manuel L. Real, District Judge, Presiding
Submitted April 13, 2016**
Before: FARRIS, TALLMAN, and BYBEE, Circuit Judges.
Richard J. Glair appeals pro se from the district court’s summary judgment
in his 42 U.S.C. § 1983 action alleging constitutional claims arising out of a pat-
down search. We have jurisdiction under 28 U.S.C. § 1291. We review de novo.
Albino v. Baca, 747 F.3d 1162, 1168 (9th Cir. 2014) (en banc). We may affirm on
*
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).
any basis supported by the record. Enlow v. Salem-Keizer Yellow Cab Co., Inc.,
389 F.3d 802, 811 (9th Cir. 2004). We affirm in part, reverse in part, and remand.
Summary judgment was proper on the basis of qualified immunity on Glair’s
failure-to-intervene claim against Boyd because it would not have been clear to
every reasonable official that failing to stop a pat-down search would violate a
constitutional right where the officer believed that a threat to officer safety existed
based on a backup request. See Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080, 2083
(2011) (discussing qualified immunity and noting that a right is clearly established
only if “every reasonable official would have understood that what he is doing
violates that right” (citation and internal quotation marks omitted)); Terry v. Ohio,
392 U.S. 1, 30 (1968) (officer may search suspect where he has a “reasonable fear”
for his or other’s safety); see also United States v. Koon, 34 F.3d 1416, 1447 n.25
(9th Cir. 1994) (failure-to-intervene claim is “analytically the same” as the
underlying alleged constitutional violation).
The district court properly granted summary judgment on Glair’s Eighth
Amendment claim against the City of Santa Monica because Glair was not
convicted and sentenced for any violation. See Graham v. Connor, 490 U.S. 386,
392 & n.6 (1989) (Eighth Amendment’s prohibition of cruel and unusual
punishments applies only after conviction and sentence).
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The district court properly granted summary judgment on Glair’s Fourteenth
Amendment substantive due process claim because any such claim should be
analyzed under the Fourth Amendment. See id. at 395 (“[A]ll claims that law
enforcement officers have used excessive force -- deadly or not -- in the course of
an arrest, investigatory stop, or other ‘seizure’ of a free citizen should be analyzed
under the Fourth Amendment and its ‘reasonableness’ standard, rather than under a
‘substantive due process’ approach.”).
However, summary judgment as to Glair’s First and Fourth Amendment
claims against Wilkening was improper because, viewing the evidence in the light
most favorable to Glair, Glair raised a genuine dispute of material fact as to
whether Wilkening had a reasonable suspicion that Glair presented a threat to
officer safety or the safety of the public. See Terry, 392 U.S. at 30. Specifically,
while the district court concluded that it was undisputed that Glair placed his hands
in his pockets during the stop, Glair stated in his declaration that he never placed
his hands in his pockets and that he was not aggressive toward Wilkening.
Accordingly, we reverse and remand for further proceedings on these claims only.
We do not consider Glair’s arguments regarding his failure-to-train claim
because Glair abandoned that claim below.
We reject as without merit Glair’s contention that the district court erred in
3 13-56658
ordering the parties to file cross-motions for summary judgment.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Each party shall bear its own costs on appeal.
AFFIRMED in part, REVERSED in part, and REMANDED.
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