Walter Cleveland, Jr. v. Cochise, County Of

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 5 2017
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
WALTER L. CLEVELAND, Jr., No. 16-16704
Plaintiff-Appellant, D.C. No. 4:15-cv-00400-BPV
v.
MEMORANDUM*
COCHISE, COUNTY OF, Cochise County
for Cochise County Sheriff’s Dept.,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Arizona
Bernardo P. Velasco, Magistrate Judge, Presiding**
Submitted September 26, 2017***
Before: SILVERMAN, TALLMAN, and N.R. SMITH, Circuit Judges.
Walter L. Cleveland, Jr., appeals pro se from the district court’s judgment
following a bench trial in Cleveland’s 42 U.S.C. § 1983 action alleging violations
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The parties consented to proceed before a magistrate judge. See 28
U.S.C. § 636(c).
***
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
of his Fourth and Fourteenth Amendment rights. We have jurisdiction under 28
U.S.C. § 1291. We review for clear error the district court’s findings of fact, and
de novo its conclusions of law. Lentini v. Cal. Ctr. for the Arts, Escondido, 370
F.3d 837, 843 (9th Cir. 2004). We may affirm on any ground supported by the
record. Atel Fin. Corp. v. Quaker Coal Co., 321 F.3d 924, 926 (9th Cir. 2003).
We affirm.
The ruling in favor of defendant on Cleveland’s Fourth Amendment claim
arising from officer Haymore’s entry into Cleveland’s yard was proper because
Haymore’s conduct fell within an emergency exception to the warrant requirement.
See United States v. Struckman, 603 F.3d 731, 738 (9th Cir. 2010) (the emergency
exception to the warrant requirement “stems from the police officers’ community
caretaking function and allows them to respond to emergency situations that
threaten life or limb” (citations and internal quotation marks omitted)); see also
Michigan v. Tyler, 436 U.S. 499, 511 (1978) (“[W]e hold that an entry to fight a
fire requires no warrant, and that once in the building, officials may remain there
for a reasonable time to investigate the cause of the blaze.”).
The district court properly ruled in favor of defendant on Cleveland’s
Fourteenth Amendment claim arising from Haymore’s entry into Cleveland’s yard
because Cleveland failed to show that Haymore’s actions “shock[ ] the
conscience.” County of Sacramento v. Lewis, 523 U.S. 833, 846-47 (1998)
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(outlining the standard for executive action that violates substantive due process).
The district court properly ruled in favor of defendant on Cleveland’s Fourth
Amendment claim arising from Callahan-English’s entry into Cleveland’s home
because Cleveland gave consent to her entry. See Fernandez v. California, 134 S.
Ct. 1126, 1132 (2014) (warrantless searches are permissible “when the sole owner
or occupant of a house or apartment voluntarily consents to a search”); United
States v. Basher, 629 F.3d 1161, 1167 (9th Cir. 2011) (outlining requirements for
determining whether consent was voluntary).
The district court properly ruled in favor of defendant on Cleveland’s Fourth
Amendment claim arising from Callahan-English’s seizure of Cleveland’s BB gun
and machete because these weapons were found in “plain view,” and Callahan-
English had a legal right to be in Cleveland’s home. United States v. Garcia, 205
F.3d 1182, 1187 (9th Cir. 2000) (“The ‘plain view’ exception requires: (1) that the
initial intrusion must be lawful; and (2) that the incriminatory nature of the
evidence must be immediately apparent to the officer.”).
The district court did not commit a clear error in awarding Cleveland $1 in
nominal damages on Cleveland’s Fourth Amendment claim arising from Callahan-
English retrieval of medication from his home. See Lentini, 370 F.3d at 843
(standard of review).
We do not consider matters not specifically and distinctly raised and argued
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in an appellant’s opening brief or raised for the first time on appeal. See Padgett v.
Wright, 587 F.3d 983, 985 n.2 (9th Cir. 2009).
AFFIRMED.
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