Sergei Portnoy v. City of Woodland

FILED
NOT FOR PUBLICATION MAY 27 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
SERGEI PORTNOY, No. 13-16384
Plaintiff - Appellant, D.C. No. 2:11-cv-01720-GEB-
EFB
v.
CITY OF WOODLAND; et al., MEMORANDUM*
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of California
Garland E. Burrell, Jr., District Judge, Presiding
Submitted May 13, 2015**
Before: LEAVY, CALLAHAN, and M. SMITH, Circuit Judges.
Sergei Portnoy appeals pro se from the district court’s summary judgment in
his 42 U.S.C. § 1983 action alleging federal and state law violations arising from
his arrest at his home. We have jurisdiction under 28 U.S.C. § 1291. We review
de novo. Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). We affirm.
*
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).
The district court properly granted summary judgment on Portnoy’s Fourth
Amendment claims related to his arrest, because Portnoy failed to raise a genuine
dispute of material fact as to whether he gave consent to defendants to enter his
home, whether defendants had probable cause to arrest him for fraudulently
cashing a check with insufficient funds, and whether the protective sweep was
justified based on a reasonable suspicion of danger. See Espinosa v. City & County
of San Francisco, 598 F.3d 528, 533 (9th Cir. 2010) (consent is an exception to the
Fourth Amendment’s warrant requirement); Blankenhorn v. City of Orange, 485
F.3d 463, 471 (9th Cir. 2007) (warrantless arrest permissible where probable cause
exists); Cal. Penal Code § 476a(a) (any person who willfully makes or delivers a
check with knowledge that it has insufficient funds is subject to imprisonment of
up to one year); Maryland v. Buie, 494 U.S. 325, 334-36 (1990) (protective sweep
permissible for the protection of the arresting officers).
The district court properly granted summary judgment on Portnoy’s Fourth
Amendment claim related to his probable cause determination, because Portnoy
failed to raise a genuine dispute of material fact as to whether the named
defendants were involved in or had control of this determination. See County of
Riverside v. McLaughlin, 500 U.S. 44, 56 (1991) (requiring judicial determination
of probable cause within 48 hours of a warrantless arrest).
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The district court properly granted summary judgment on Portnoy’s
emotional distress claims because Portnoy failed to raise a genuine dispute of
material fact as to whether defendants acted reasonably. See Corales v. Bennett,
567 F.3d 554, 571 (9th Cir. 2009) (elements of an intentional infliction of
emotional distress claim); Fluharty v. Fluharty, 69 Cal. Rptr. 2d 244, 246-47 (Ct.
App. 1997) (elements of a negligent infliction of emotional distress claim).
The district court properly granted summary judgment on Portnoy’s Human
Rights Act claim, assault claim, and trespass claim because Portnoy failed to
identify any law or facts to support these claims.
We reject Portnoy’s Fourteenth Amendment familial relations claim.
The district court properly granted summary judgment on Portnoy’s claims
as to the City of Woodland because Portnoy failed to demonstrate that the
government had a deliberate policy, custom, or practice that was the moving force
behind any alleged constitutional violation. See Monell v. Dep’t of Soc. Servs., 436
U.S. 658, 694 (1978).
We do not consider arguments and allegations raised for the first time on
appeal. See Padgett v. Wright, 587 F.3d 983, 986 n.2 (9th Cir. 2009).
AFFIRMED.
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