Barbara Brown v. Scott Burton

NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 12 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

BARBARA E. BROWN, No. 17-55698

Plaintiff-Appellant, D.C. No. 5:15-cv-00294-CJC-E

v.

MEMORANDUM*

SCOTT BURTON, Deputy Sheriff, in his

individual capacity; et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Central District of California

Cormac J. Carney, District Judge, Presiding

Submitted December 10, 2018**

Before: TROTT, SILVERMAN, and TALLMAN, Circuit Judges

Barbara E. Brown appeals pro se from the district court’s summary

judgment in her 42 U.S.C. § 1983 action alleging Fourth Amendment violations for

improper detention and arrest. We have jurisdiction under 28 U.S.C. § 1291. We

review de novo, Szajer v. City of Los Angeles, 632 F.3d 607, 610 (9th Cir. 2011),

*

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).

and we affirm.

The district court properly granted summary judgment on Brown’s Fourth

Amendment claim for improper detention and arrest because Brown failed to raise

a genuine dispute of material fact as to whether defendants (1) had a reasonable

suspicion to detain Brown while investigating a 911 call for a domestic

disturbance, and (2) had probable cause to arrest her pursuant to California Penal

Code § 148(a)(1). See Rosenbaum v. Washoe Cty., 663 F.3d 1071, 1076 (9th Cir.

2011) (“An officer has probable cause to make a warrantless arrest when the facts

and circumstances within his knowledge are sufficient for a reasonably prudent

person to believe that the suspect has committed a crime.”); United States v. Palos-

Marquez, 591 F.3d 1272, 1274 (9th Cir. 2010) (“An investigatory stop does not

violate the Fourth Amendment if the officer has a reasonable suspicion supported

by articulable facts that criminal activity may be afoot.” (citations and quotations

omitted)); see also Scott v. Harris, 550 U.S. 372, 380 (2007) (“When opposing

parties tell two different stories, one of which is blatantly contradicted by the

record, so that no reasonable jury could believe it, a court should not adopt that

version of the facts for the purposes of ruling on a motion for summary

judgment.”). The audio recordings of the officers’ interaction with and handling of

the plaintiff demonstrate that her claims against them are spurious. We agree with

the district court that the recordings “refute by blatant contradiction” most of

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Brown’s assertions. The officers’ treatment of her as captured on the recordings

was professional, respectful, and courteous.

The district court properly dismissed Brown’s claims against unnamed John

Doe defendants because Brown failed to make any factual allegations as to these

claims. See Johnson v. Riverside Healthcare Sys., 534 F.3d 1116, 1121 (9th

Cir. 2008) (dismissal is proper when plaintiff fails to allege facts sufficient to

support a claim).

We reject Brown’s meritless contentions that the district court was biased

against her, improperly transferred her case to the district court in Los Angeles,

and improperly denied her request for appointment of counsel.

We do not consider matters not specifically and distinctly raised 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); see also United States v.

Elias, 921 F.2d 870, 874 (9th Cir. 1990) (“Documents or facts not presented to the

district court are not part of the record on appeal.”).

Brown’s motion for appointment of counsel (Docket Entry No. 15) is

denied.

AFFIRMED.

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