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 2018-08

Alexander Ocasio v. Bradley Gruner ( 2018 )


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  •                            NOT FOR PUBLICATION                           FILED
UNITED STATES COURT OF APPEALS                       AUG 22 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ALEXANDER OCASIO,                               No.    17-17564
Plaintiff-Appellant,            D.C. No. 2:16-cv-00956-GMN-
NJK
v.
WILLIAM PEREZ, et al.,                          MEMORANDUM*
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Gloria M. Navarro, Chief Judge, Presiding
Submitted August 15, 2018**
Before:      FARRIS, BYBEE, and N.R. SMITH, Circuit Judges.
Alexander Ocasio appeals pro se from the district court’s judgment
dismissing his 42 U.S.C § 1983 action alleging constitutional claims. We have
jurisdiction under 28 U.S.C. § 1291. We review de novo a district court’s
dismissal based on qualified immunity and for failure to state a claim under Fed. R.
Civ. P. 12(b)(6). Ass’n for L.A. Deputy Sheriffs v. County of Los Angeles, 648 F.3d
*
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).
986, 991 (9th Cir. 2011). We affirm.
The district court properly dismissed Ocasio’s Fourth Amendment claims on
the basis that defendants Perez and Gribbin were entitled to qualified immunity
because at the time of Ocasio’s arrest, it would not have been clear to every
reasonable officer that an arrest was unlawful under the circumstances. See
Rosenbaum v. Washoe County,
    663 F.3d 1071
    , 1075-76 (9th Cir. 2011) (explaining
two-part test for qualified immunity in the context of a claim for unlawful arrest).
The district court properly dismissed Ocasio’s equal protection claims
because Ocasio failed to allege facts sufficient to state plausible claims. See Hebbe
v. Pliler,
    627 F.3d 338
    , 341-42 (9th Cir. 2010) (although pro se pleadings are
liberally construed, a plaintiff must allege facts sufficient to state a plausible
claim); Monteiro v. Tempe Union High Sch. Dist.,
    158 F.3d 1022
    , 1026 (9th Cir.
1998) (§ 1983 equal protection claim must allege facts that are at least susceptible
to an inference of intentional discrimination).
The district court properly dismissed Ocasio’s Fifth Amendment due process
claims against defendants Gruner and Tanner because both are state officials. See
Bingue v. Prunchak,
    512 F.3d 1169
    , 1174 (9th Cir. 2008) (Fifth Amendment due
process clause only applies to the federal government).
The district court properly dismissed Ocasio’s Fourteenth Amendment due
process claims against defendants Gruner and Tanner because Ocasio failed to
2                                        17-17564
allege whether Gruner and Tanner deprived him of a constitutionally protected
liberty interest or adequate procedural protections. See Shanks v. Dressel,
    540 F.3d 1082
    , 1087 (9th Cir. 2008) (explaining substantive due process); Brewster v.
Bd. of Educ.,
    149 F.3d 971
    , 982 (9th Cir. 1998) (explaining requirements for
procedural due process).
We reject as meritless Ocasio’s contentions that the district court schemed to
coerce him to amend his complaint, and that it materially misstated facts of the
case.
AFFIRMED.
3                                   17-17564