Wood v. City of Garden Grove

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT SEP 15 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
NANCY CAROLYN WOOD, No. 07-56600
Plaintiff - Appellant, D.C. No. CV-04-00282-DOC
v.
MEMORANDUM*
CITY OF GARDEN GROVE; et al.,
Defendants - Appellees.
Appeal from the United States District Court
for the Central District of California
David O. Carter, District Judge, Presiding
Submitted May 13, 2010**
San Francisco, California
Before: HUG, BEEZER and HALL, Circuit Judges.
Plaintiff-appellant Nancy C. Wood (“Wood”) appeals pro se from (1) the
district court’s grant of summary judgment in favor of defendants-appellees the
City of Garden Grove, the Garden Grove Police Department, Perkins, Polisar and
*
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).
Whitman and (2) the dismissal of her complaint as to the remaining defendants-
appellees. The district court adopted the magistrate judge’s report and
recommendation, concluding that Wood’s Third Amended Complaint consisted
solely “of a mixture of irrelevant facts, rambling sentences and confusing
allegations” that failed to state a claim upon which relief could be granted.
We have jurisdiction over this matter pursuant to 28 U.S.C. § 1291, and we
affirm.
The facts of this case are known to the parties. We repeat them only as
necessary.
I
We review de novo a district court’s grant of a motion to dismiss under Rule
12(b)(6). Edwards v. Marin Park, Inc., 356 F.3d 1058, 1061 (9th Cir. 2004). In
gauging the appropriateness of a 12(b)(6) dismissal, we read the complaint in the
light most favorable to the non-moving party. Associated Gen. Contractors v.
Metro. Water Dist., 159 F.3d 1178, 1181 (9th Cir. 1998). Conclusory allegations
of law, however, are “not sufficient to defeat a motion to dismiss.” Id.
We also review a grant of summary judgment de novo. Avalos v. Baca, 596
F.3d 583, 587 (9th Cir. 2010).
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II
The district court properly dismissed all of Wood’s claims against the
defendants and granted summary judgment to the Garden Grove defendants.
With regard to the false arrest, retaliatory arrest, unlawful search, false
imprisonment and malicious prosecution claims, the record indicates that, for the
one specific arrest that Wood alleges, the police officer had probable cause to
arrest Wood, having caught her in the act of panhandling. See Cabrera v.
Huntington Park, 159 F.3d 374, 380 (9th Cir. 1998).
Likewise, Wood’s excessive force claim was properly dismissed because
any force used to arrest Wood was de minimis and necessary. Neither the flash of
the booking camera nor the possibility that she was struck by the booking camera
while having a seizure amounts to excessive force because Wood provides no
evidence of any injury. Saucier v. Katz, 533 U.S. 194, 208–09 (2001) (overturned
on other grounds).
Wood’s claim that she suffered a Constitutional violation by an alleged strip
search is similarly uncompelling. Besides her own inconsistent testimony, all of
the evidence in the case indicates that this alleged strip search never took place.
See Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001).
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Wood’s conspiracy claim also fails because Wood has provided only bare
and highly conclusory allegations of a conspiracy. See Woodrum v. Woodward
County, 866 F.2d 1121, 1126 (9th Cir. 1989).
The district court also properly granted summary judgment as to Wood’s
Monell claim. As discussed above, there was no injury to Wood and no
Constitutional violation. Her claim for Monell liability thus automatically fails.
Gibson v. County of Washoe, 290 F.3d 1175, 1185–86 (9th Cir. 2002).
Finally, Wood’s contention that Garden Grove Municipal Code
§ 8.78.010(B) infringes upon her First Amendment right to freedom of speech is
entirely frivolous. This provision of the Municipal Code serves to restrict
solicitation in the “public right-of-way,” including streets, highways and
sidewalks. The section is content neutral, narrowly tailored to address road safety
issues and the Ninth Circuit has upheld similar provisions in the past. See Acorn v.
City of Phoenix, 798 F.2d 1260, 1267–68 (9th Cir. 1986).
III
Wood’s remaining arguments are without merit.
AFFIRMED.
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