Larry Ikei v. The City and County of Honolul ( 2011 )

FILED
NOT FOR PUBLICATION JUL 05 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
LARRY IKEI, No. 10-15405
Plaintiff - Appellant, D.C. No. 1:08-cv-00395-DAE-
BMK
v.
THE CITY AND COUNTY OF MEMORANDUM *
HONOLULU; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Hawaii
David A. Ezra, District Judge, Presiding
Submitted June 15, 2011 **
Honolulu, Hawaii
Before: ALARCÓN, WARDLAW, and N.R. SMITH, Circuit Judges.
Larry Ikei appeals the district court’s grant of summary judgment in favor of
the Honolulu police defendants in this § 1983 action. The district court concluded
that the officers were entitled to qualified immunity because Ikei failed to raise a
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
genuine issue of material fact as to whether probable cause supported Ikei’s arrest.
We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
Ikei cannot avoid summary judgment because he has failed to present
“affirmative evidence from which a jury could find in his favor.” FTC v.
Stefanchik, 559 F.3d 924, 929 (9th Cir. 2009) (citing Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 257 (1986)). The defendants’ evidence established that Ikei
moved toward a store clerk while pointing his finger and yelling. This behavior
constituted probable cause to arrest Ikei on suspicion of harassment in violation of
Hawaii Revised Statutes § 711-1106(1)(b), which criminalizes “[i]nsults, taunts,
or challenges [to] another person . . . that would cause the other person to
reasonably believe that the actor intends to cause bodily injury to the recipient.”
“[O]ther than statements in the appellate brief, [Ikei] has never offered any
evidence to support [his] factual assertions” denying that he engaged in such
conduct. FTC v. Publ’g Clearing House, Inc., 104 F.3d 1168, 1171 (9th Cir.
1997). That he does not remember speaking with the clerk inside of the store does
not contradict the defendants’ version of events. See Stefanchik, 559 F.3d at 929
(“A non-movant’s bald assertions or a mere scintilla of evidence in his favor are
both insufficient to withstand summary judgment.”). Ikei erroneously relies on
SEC v. Phan, 500 F.3d 895 (9th Cir. 2007), and United States v. 1 Parcel of Real
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Property, Lot 4, Block 5 of Eaton Acres, 904 F.2d 487 (9th Cir. 1990). The district
court did not grant summary judgment to the defendants based on the conclusion
that Ikei’s affidavit was self-serving. Rather, the district court correctly concluded
that, unlike the appellants in Phan and 1 Parcel, Ikei failed to affirmatively
contradict the evidence as to probable cause offered by the defendants. Cf. Phan,
500 F.3d at 910; 1 Parcel, 904 F.2d at 492 n.3.
Therefore, Ikei failed to create a genuine dispute of material fact as to
whether the officers had “knowledge or reasonably trustworthy information
sufficient to lead a person of reasonable caution to believe that an offense ha[d]
been or [wa]s being committed by the person being arrested.” Rodis v. City,
County of San Francisco, 558 F.3d 964, 969 (9th Cir. 2009) (quoting United States
v. Lopez, 482 F.3d 1067, 1072 (9th Cir. 2007)). Accordingly, the district court
properly determined that the officers are entitled to qualified immunity because
their conduct did “not violate clearly established [Fourth Amendment] rights of
which a reasonable person would have known.” Pearson v. Callahan, 555 U.S.
223, 129 S. Ct. 808, 815 (2009) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)).
Nor did the district court err by dismissing Ikei’s § 1983 claim based on an
alleged First Amendment violation. Ikei claimed that the defendants violated his
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First Amendment rights by arresting him without probable cause in retaliation for
his threatening to file a complaint. The district court correctly held that this claim
fails because Ikei did not present a genuine issue of material fact questioning the
basis for the officers’ probable cause to arrest.
The district court also properly granted summary judgment on Ikei’s
Fourteenth Amendment claim, as the Fourteenth Amendment does not govern “the
constitutionality of the duration of or legal justification for a prolonged
warrantless, post-arrest, pre-arraignment custody.” Pierce v. Multnomah County,
76 F.3d 1032, 1043 (9th Cir. 1996); cf Redman v. County of San Diego, 942 F.2d
1435, 1440 (9th Cir. 1991) (noting the applicability of the Fourteenth Amendment
Due Process Clause in the separate context of the rights of pretrial detainees).
AFFIRMED.
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