Don Kubanyi v. Jake Covey , 391 F. App'x 620 ( 2010 )

FILED
NOT FOR PUBLICATION AUG 04 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DON M. KUBANYI, No. 09-35340
Plaintiff - Appellant, D.C. No. 4:04-cv-00026-RRB
v.
MEMORANDUM*
JAKE COVEY; PATRICK NELSON,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Alaska
Ralph R. Beistline, Chief District Judge, Presiding
Submitted July 30, 2010**
Anchorage, Alaska
Before: SCHROEDER, O’SCANNLAIN and CLIFTON, Circuit Judges.
Don Kubanyi was arrested by Alaskan state troopers Jake Covey and Patrick
Nelson for disorderly behavior in response to an alleged trespass on his land.
Kubanyi filed suit against Covey and Nelson under 42 U.S.C. § 1983, seeking
*
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).
damages and fees. The district court granted Covey and Nelson’s motion for
summary judgment on qualified immunity. Kubanyi filed a motion for
reconsideration, but it was denied. Kubanyi timely appeals, arguing that Covey
and Nelson violated his First Amendment right to free speech, his Fourth
Amendment right against false arrest, and his Fourteenth Amendment right against
deprivation of property without due process.
I
Kubanyi’s First and Fourth Amendment claims are not properly preserved
on appeal because he did not raise them until his motion for reconsideration in the
district court. See Self-Realization Fellowship Church v. Ananda Church of Self-
Realization, 59 F.3d 902, 912 (9th Cir. 1995). In any event, Kubanyi’s First
Amendment right to free speech was not violated because the officers arrested him
in order to assure the safety of the situation in light of Kubanyi’s disorderly
conduct, not in retaliation for his speech. See Dietrich v. John Ascuaga’s Nugget,
548 F.3d 892, 896, 900-02 (9th Cir. 2008). In addition, Kubanyi cannot prevail on
his Fourth Amendment false arrest claim because he was convicted of the offense
for which the officers arrested him. See Cabrera v. City of Huntington Park, 159
F.3d 374, 380 (9th Cir. 1998) (per curiam).
II
2
In contrast to his First and Fourth Amendment claims, Kubanyi’s Fourteenth
Amendment claim is properly preserved for appeal. However, Kubanyi’s
Fourteenth Amendment right against deprivation of property without due process
was not violated because Covey and Nelson did not deprive Kubanyi of any of his
legal rights with respect to his property. See Meyers v. Redwood City, 400 F.3d
765, 767-68 (9th Cir. 2005).
III
For these reasons, the judgment of the district court is AFFIRMED.
3