Cristobal Hernandez, Jr. v. Janice Brewer

FILED

NOT FOR PUBLICATION

AUG 26 2016

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CRISTOBAL HERNANDEZ, JR., No. 13-16826

Plaintiff-Appellant, D.C. No. 2:11-cv-01945-JAT

v.

MEMORANDUM*

JANICE K. BREWER, Governor of the

State of Arizona, in her official capacity;

MARK BRNOVICH, Assistant U.S.

Attorney, Arizona Attorney General, in his

official and individual capacities; STATE

OF ARIZONA; COUNTY OF PINAL, a

political subdivision of the State of

Arizona; JAMES P. WALSH, in his

official and individual capacities; PINAL

COUNTY BOARD OF SUPERVISORS,

in their official capacities; STEPHEN C.

LEPLEY, Section Chief, Financial

Remedies Section, in his official and

individual capacities; KATRIN M.

NELSON, Assistant Attorney General, in

her official and individual capacities;

ERIC J. HERRMANN, Assistant Attorney

General, in his official and individual

capacities; BARTON J. FEARS, Assistant

Attorney General, in his official and

individual capacities; MATTHEW D.

CONTI, Assistant Attorney General, in his

official and individual capacities; JANET

GYGAX, Officer, Pinal County Attorney’s

Office, in her official and individual

capacities; PAUL R. BABEU, Sheriff, in

his official and individual capacities;

JAMES RIMMER, Pinal County Sheriff’s

Office, in his official and individual

capacities; BENJAMIN PARRY, Deputy

Sheriff for the PCSO, in his individual and

official capacities; TERRY L.

GODDARD, husband; MONICA

GODDARD, wife,

Defendants-Appellees.

Appeal from the United States District Court

for the District of Arizona

James A. Teilborg, District Judge, Presiding

Submitted August 4, 2016**

Before: D.W. NELSON, GRABER, and WATFORD, Circuit Judges.

Cristobal Hernandez, Jr., appeals the district court’s order disposing of all of

Hernandez’s twenty-two claims. We have jurisdiction under 28 U.S.C. § 1291,

and we affirm.

1. The district court properly dismissed Hernandez’s 42 U.S.C. § 1983

claim alleging violations of the Fourth and Fourteenth Amendments (count 7)

against all Pinal County Defendants except Defendant Deputy Sheriff Parry. The

*

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).

2

court properly concluded that Hernandez made only conclusory statements as to

the alleged violations and that he failed to provide any factual basis for his claim.

See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555 (2007).

The district court’s grant of summary judgment to Deputy Parry on count 7

was also proper. The court correctly ruled that there was no genuine dispute of

material fact as to whether Deputy Parry had reasonable suspicion to stop

Hernandez when he observed Hernandez operating a vehicle with a broken tail

light. See United States v. Gutierrez-Mederos, 965 F.2d 800, 803 (9th Cir. 1992).

The court also properly found that Deputy Parry’s request to Hernandez to “hold

on” did not unreasonably prolong the stop, nor did it transform the stop into an

arrest. See Gallegos v. City of Los Angeles, 308 F.3d 987, 991 (9th Cir. 2002).

Further, Deputy Parry’s use of a police dog, which alerted around the driver’s door

of Hernandez’s car, did not transform the stop into an arrest, and gave Deputy

Parry probable cause to search the entire car. See Illinois v. Caballes, 543 U.S.

405, 409 (2005); United States v. Ibarra, 345 F.3d 711, 716 (9th Cir. 2003).

Finally, the district court also properly granted summary judgment to Deputy Parry

on qualified immunity grounds. See Hunter v. Bryant, 502 U.S. 224, 227 (1991)

(per curiam).

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2. The district court properly dismissed Hernandez’s claim alleging a

violation under 18 U.S.C. § 961 (count 14), his state law claim of negligence

(count 16), and his state law claim of gross negligence (count 17). The court

properly concluded that Hernandez made only conclusory statements as to these

counts, and he therefore failed to satisfy the pleading standard. See Iqbal, 556 U.S.

at 678; Twombly, 550 U.S. at 555.

3. The district court properly dismissed Hernandez’s state law claims

alleging defamation, libel and/or false light (count 13), and negligent and

intentional infliction of emotional distress (count 15). The statute of limitations

bars those claims. See ARIZ. REV. STAT. § 12-821.

4. The district court properly disregarded Hernandez’s allegations related to

the October 21, 2009 traffic stop. Hernandez did not link any of the facts of the

stop to any of the legal claims raised in the operative complaint.

5. The district court did not abuse its discretion in refusing to address

further Hernandez’s claims that Appellees were withholding discovery. See

Preminger v. Peake, 552 F.3d 757, 768 n.10 (9th Cir. 2008). Hernandez repeatedly

failed to comply with court-ordered procedures regarding discovery disputes.

6. Hernandez’s claim that Appellees engaged in fraud upon the court fails.

We vacate judgments for fraud upon the court “with restraint and discretion . . .

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and only when the fraud is established by clear and convincing evidence.” United

States v. Estate of Stonehill, 660 F.3d 415, 443 (9th Cir. 2011) (internal quotation

marks and citation omitted). Hernandez is unable to satisfy his burden, and we

therefore decline to vacate the district court’s judgment.

7. On appeal, Hernandez did not adequately raise his arguments that the

district court erroneously denied (1) his request for leave to file another amended

complaint and (2) his motion for a change of venue. See Cruz v. Int’l Collection

Corp., 673 F.3d 991, 998 (9th Cir. 2012). Even if Hernandez’s arguments are not

waived, the district court properly denied those motions.1

AFFIRMED.

1

In his briefing, it is unclear whether Hernandez attempted to raise more

arguments on appeal. Because we review only the issues that “are argued

specifically and distinctly in a party’s opening brief,” any other arguments are

waived or forfeited. Cruz, 673 F.3d at 998 (internal quotation marks omitted).

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