Ronnie Smith v. City of Dalles ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS NOV 12 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RONNIE SMITH, No. 20-35871
Plaintiff-Appellant, D.C. No. 3:19-cv-00338-SI
v.
MEMORANDUM*
CITY OF DALLES, In its official capacity
as a political and public entity in the State of
Oregon; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Michael H. Simon, District Judge, Presiding
Submitted November 8, 2021**
Before: CANBY, TASHIMA, and MILLER, Circuit Judges.
Ronnie Smith appeals pro se from the district court’s summary judgment in
his 42 U.S.C. § 1983 action alleging federal and state law claims arising from an
arrest and prosecution for theft. We have jurisdiction under 28 U.S.C. § 1291. We
*
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).
review de novo. Stephens v. Union Pac. R.R. Co., 935 F.3d 852, 854 (9th Cir.
2019). We may affirm on any basis supported by the record. Thompson v. Paul,
547 F.3d 1055, 1058-59 (9th Cir. 2008). We affirm.
The district court properly granted summary judgment on Smith’s federal
law false arrest and imprisonment claims due to issue preclusion. In Smith’s other
action, Smith v. City of Dalles, No. 6:16-cv-01771 (D. Or.), Smith alleged the same
claims. A jury issued a verdict on those claims for the time period before the
eyewitness identification was procured, and the district court granted summary
judgment on those claims for the subsequent time period. See Robi v. Five
Platters, Inc., 838 F.2d 318, 322 (9th Cir. 1988) (“The doctrine of issue preclusion
prevents relitigation of all issues of fact or law that were actually litigated and
necessarily decided in a prior proceeding.” (internal quotation marks omitted));
City of Portland v. Huffman, 331 P.3d 1105, 1107 (Or. Ct. App. 2014) (elements of
issue preclusion under Oregon law).
The district court properly granted summary judgment on Smith’s federal
claim of malicious prosecution because Smith failed to raise a genuine dispute of
material fact as to whether there was no probable cause. See Lacey v. Maricopa
County, 693 F.3d 896, 919 (9th Cir. 2012) (en banc) (“To claim malicious
prosecution, a petitioner must allege that the defendants prosecuted her with malice
and without probable cause, and that they did so for the purpose of denying her
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equal protection or another specific constitutional right.” (quotation marks
omitted)). Summary judgment was properly granted on Smith’s federal conspiracy
claim because it stemmed from Smith’s malicious prosecution claim.
Summary judgment was properly granted on Smith’s state law claims for
false arrest and imprisonment and malicious prosecution because they were
untimely under the Oregon Tort Claims Act, which requires a plaintiff to provide
notice to government defendants within 180 days of the alleged injury. See Or.
Rev. Stat. § 30.275(2)(b). Contrary to Smith’s contention, Smith did not allege a
continuing tort that could toll the statute of limitations. See Curzi v. Oregon State
Lottery, 398 P.3d 977, 986 (Or. Ct. App. 2017) (no continuing tort where each
separate act of alleged conduct was actionable). Summary judgment was also
properly granted on Smith’s state law claims of civil conspiracy, intentional
infliction of emotional distress, and negligence because they all stemmed from the
alleged malicious prosecution claim.
We reject as meritless Smith’s contentions related to the claims against and
service of process on defendant Linda Gouge.
We reject as unsupported by the record Smith’s contentions that the district
court improperly denied Smith’s motions for sanctions and to compel discovery.
We do not consider matters not specifically and distinctly raised and argued
in the opening brief, or arguments and allegations raised for the first time on
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appeal. See Padgett v. Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
Smith’s motion for appointment of counsel, set forth in his reply brief, and
Smith’s motion for judicial notice (Docket Entry No. 20) are denied.
AFFIRMED.
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